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113 results

Page 1 of 6

  • The Legitimacy of Investment Arbitration
  • Empirical Perspectives
  • Edited by Daniel Behn, Ole Kristian Fauchald, Malcolm Langford
  • Coming soon
  • Expected online publication date: June 2021
  • Print publication: 30 June 2021
  • View description
    International investment arbitration remains one of the most controversial areas of globalisation and international law. This book provides a fresh contribution to the debate by adopting a thoroughly empirical approach. Based on new datasets and a range of quantitative, qualitative and computational methods, the contributors interrogate claims and counter-claims about the regime's legitimacy. The result is a nuanced picture about many of the critiques lodged against the regime, whether they be bias in arbitral decision-making, close relationships between law firms and arbitrators, absence of arbitral diversity, and excessive compensation. The book comes at a time when several national and international initiatives are under way to reform international investment arbitration. The authors discuss and analyse how the regime can be reformed and ow a process of legitimation might occur.
  • 1 - Assessing Convergence in International Economic Disputes – A Framework
  • Edited by Szilárd Gáspár-Szilágyi, University of Oslo, Daniel Behn, University of Oslo, Malcolm Langford, University of Oslo
  • Book: Adjudicating Trade and Investment Disputes
  • Published online: 25 June 2020
  • Print publication: 02 July 2020, pp 1-18
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    Summary

    Recent trends suggest that international economic law may be witnessing a renaissance of convergence – both parallel and intersectional. The adjudicative process also reveals signs of convergence. These diverse claims of convergence are of legal, empirical and normative interest. Yet, convergence discourse also warrants scepticism. This volume therefore aims to contribute to both the general debate on the fragmentation of international law and the discourse concerning the interplay between international trade and investment, with a particular focus on dispute settlement. It especially seeks to move beyond broad observations or singular case studies to provide an informed and wide-reaching assessment by investigating multiple standards, processes, mechanisms and behaviours. Methodologically, a normative stance is largely eschewed in favour of a range of ‘doctrinal,’ quantitative and qualitative methods that are used to address the research questions. Furthermore, in determining the extent of convergence, it is important to recognize that there is no bright line or clear yardstick for determining its nature or degree.

Adjudicating Trade and Investment Disputes
  • Adjudicating Trade and Investment Disputes
  • Convergence or Divergence?
  • Edited by Szilárd Gáspár-Szilágyi, Daniel Behn, Malcolm Langford
  • Published online: 25 June 2020
  • Print publication: 02 July 2020
  • View description
    Recent trends suggest that international economic law may be witnessing a renaissance of convergence – both parallel and intersectional. The adjudicative process also reveals signs of convergence. These diverse claims of convergence are of legal, empirical and normative interest. Yet, convergence discourse also warrants scepticism. This volume contributes to both the general debate on the fragmentation of international law and the narrower discourse concerning the interplay between international trade and investment, focusing on dispute settlement. It moves beyond broad observations or singular case studies to provide an informed and wide-reaching assessment by investigating multiple standards, processes, mechanisms and behaviours. Methodologically, a normative stance is largely eschewed in favour of a range of 'doctrinal,' quantitative and qualitative methods that are used to address the research questions. Furthermore, in determining the extent of convergence or divergence, it is important to recognize that there is no bright line or clear yardstick for determining its nature or degree.
  • Taming the Digital Leviathan: Automated Decision-Making and International Human Rights
  • Malcolm Langford
  • Journal: AJIL Unbound / Volume 114 / 2020
  • Published online by Cambridge University Press: 27 April 2020, pp. 141-146
  • Print publication: 2020
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    Enthusiasm abounds about the potential of artificial intelligence to automate public decision-making. The rise of machine learning and computational text analysis together with the proliferation of digital platforms has raised the prospect of “robo-judging” and “robo-administrators.” From a human rights perspective, the reaction has been mixed, and on balance negative. Optimists herald the possibilities of democratizing legal services and making decision-making more predictable and efficient. Critics warn, however, of the specter of new forms of social control, arbitrariness, and inequality. This essay examines the concerns over the turn to automation from the perspective of two international human rights: the rights to social security and a fair trial. It argues that while the critiques deserve a full hearing, they should be evidence-based, informed by an understanding of “technological systems,” and cognizant of the trade-offs between human and machine failure.

  • Ground-Breaking? An Empirical Assessment of the Draft Business and Human Rights Treaty
  • Tori Loven Kirkebø, Malcolm Langford
  • Journal: AJIL Unbound / Volume 114 / 2020
  • Published online by Cambridge University Press: 22 June 2020, pp. 179-185
  • Print publication: 2020
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    In this essay, we examine empirically whether the revised draft of the business and human rights (BHR) treaty is a normative advance on the existing jungle of global instruments. Since the 1970s, almost one hundred global corporate social responsibility (CSR) standards have been adopted, half of them addressing human rights. See Figure 1 from our global CSR database, below. What is novel about the current treaty-drafting process within the UN Human Rights Council (HRC) is that it aims to develop a comprehensive standard that would hold states legally accountable for regulating business. The question is whether this is possible. Drawing on our work on the “commitment curve,” we begin theoretically and point out why one should hold modest expectations about the process and treat strong text with skepticism as much as celebration. Using an empirical methodology, we then compare the HRC's Revised Draft Legally Binding Instrument (Revised Draft LBI) with existing standards, and find that while the draft contains a healthy dose of incremental pragmatism, its significant advances require a degree of circumspection about its strengths and prospects.

  • 3 - Judicial Politics and Social Rights
    • from Part I - Adjudication and Rights
  • Edited by Katharine G. Young, Boston College, Massachusetts
  • Foreword by Amartya Sen, Harvard University, Massachusetts
  • Book: The Future of Economic and Social Rights
  • Published online: 04 April 2019
  • Print publication: 11 April 2019, pp 66-109
  • View extract

    Summary

    The march of social rights into national constitutions and international law raised hopes that adjudication would be a vehicle for defending and promoting social justice. Yet critics contend that courts are unresponsive to the transformative demands and values embedded in social rights. The claim runs that adjudication has been (and will be) plagued by judicial abdication, distributive inequality and/or diffuse impact. While this claim is widespread in comparative judicial politics, its theoretical base is questionable and the empirical findings are often overstated. The chapter asks under what circumstances we should expect courts to engage responsively with social rights. It discusses the key normative benchmarks (with a focus on judicial abdication and distributive inequality) and sets out a range of relevant and testable hypotheses on judicial outcomes. This is followed by two empirical and comparative examinations: the US school finance cases (1973–2012) and the experience of roughly 40-plus countries (from the early 1980s). This evidence suggests that responsive courts do emerge under certain conditions, but they are a phenomenon that is neither fixed in time nor space.
  • 4 - Rights and Transformation
    • from Part I - Theories and Contexts
  • Edited by Paul Gready, University of York, Simon Robins, University of York
  • Book: From Transitional to Transformative Justice
  • Published online: 08 February 2019
  • Print publication: 21 February 2019, pp 82-102
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    Summary

    Chapter 3 argues that rights have the potential to contribute to transformation. The chapter sets out a progressive vision of rights alongside criticisms of this vision. Drawing on critical modernity, the chapter claims that there are certain conditions under which rights can help advance counter-hegemonic and subaltern struggles. As such, it sets out a different set of preconditions for transformation to those presented in chapter 1: drawing on evidence, championing a pluralist vision of rights and a multiplicity of modernities, attentive to context and contingency, and adopting a reflexive standpoint on citizenship, agency and accountability. A transformative version of rights is understood to be ‘both malleable to new and diverse demands’ and also to ‘provide a unifying platform for common action.’

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