The Rise of Investor-State Arbitration Book Launch at ICSID

Today, investor-state arbitration embodies the worst fears of those concerned about runaway globalization – a far cry from its framers’ intentions. Why did governments create a special legal system in which foreign investors can bring cases directly against states? This book takes readers through the key decisions that created investor-state arbitration, drawing on internal documents from several governments and extensive interviews to illustrate the politics behind this new legal system.

The corporations and law firms that dominate investor-state arbitration today were not present at its creation. In fact, there was almost no lobbying from investors. Nor did powerful states have a strong preference for it. Nor was it created because there was evidence that it facilitates investment – there was no such evidence.

International officials with peacebuilding and development aims drove the rise of investor-state arbitration. This book puts forward a new historical institutionalist explanation to illuminate how the actions of these officials kicked off a process of gradual institutional development. While these officials anticipated many developments, including an enormous caseload from investment treaties, over time this institutional framework they created has been put to new purposes by different actors. Institutions do not determine the purposes to which they may be put, and this book’s analysis illustrates how unintended consequences emerge and why institutions persist regardless.

Taylor St John is a Postdoctoral Research Fellow at PluriCourts, University of Oslo, and a Senior Research Associate at the Global Economic Governance Programme, University of Oxford. She will start as a Lecturer in International Relations at the University of St Andrews in Fall 2018. Her research focuses on the international architecture to resolve disputes between foreign investors and host states, and the politics of investment law and foreign investment more generally. She holds an MSc and D.Phil from the University of Oxford and a BA from the College of Idaho.

The Rise of Investor-State Arbitration: Online Book Launch at the ICSID Secretariat

 

Date: June 5, 11am-1pm (Eastern Standard Time)

 

Young ICSID is hosting a book launch for Taylor St John’s The Rise of Investor-State Arbitration. St John will present the book, then Antonio Parra, former Deputy Secretary General of ICSID, and Sudhanshu Roy, Foley Hoag, formerly of the Indian government, will provide comments on the book.

 

You are welcome to attend the event in person at the World Bank in Washington DC or participate online in real time. For more information, and to register to participate either in person or online, see: https://icsid.worldbank.org/en/Pages/Events.aspx?CID=181

 

If you would like to participate, please email the ICSID Secretariat at youngicsid@worldbank.org <mailto:youngicsid@worldbank.org> You are welcome to email questions for the speakers in advance.

 

For more information on The Rise of Investor-State Arbitration, see https://global.oup.com/academic/product/the-rise-of-investor-state-arbitration-9780198789918

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Oslo Migration Conference 2018

The University of Oslo Faculty of Law collaborated with the Peace Research Institute of Oslo to bring together a fascinating group of Migration scholars.  The conference began With a riveting keynote speech by Professor Maja Janmyr explaining the plight of refugee families from Syria who navigate a complex path resulting in vulnerability due the failure to attain recognition of rights on account of inability to gain documentation of protection status.  This was followed by a panel further exploring vulnerability and process; highlights included a paper by Tommaso Braida of Uppsala University, who explained the absurdity of the rules regarding detention and statelessness and a paper by Sarah A. Tobin (Christian Michelsen Institute) on the unfortunate consequences of banning Hawala among Syrian refugees.

The second panel, chaired by Professor May Len Skilbrei of Oslo,  tackled smuggling and trafficking and included an interesting paper by Emily Button Aguilar and Cecile Blouin of the Institute for Democracy and Human Rights of the Pontifical Catholic University of Peru on the trend demonstrating failure to protect foreign victims of trafficking within South America.  This was juxtaposed to Chistriano d’Orsi of the University of Johannesburg’s paper explaining the role of non-state actors in smuggling of migrants in Africa.

The third panel was organinzed by Professor Alla Pozdnakova ., chair of the International Law and Governance Research Group.  It showcased reserach on migration and Law of the Sea.  Peter Billings of the University of Queensland discussed “Operation Sovereign Order” and the push back of asylum seekers en route to Australia. He was followed by a Danish triad- Kristina Siig, Birgit Feldtmann, and Fenella Billing of Southern Denmark, Aalborg, and Aarhus who gave a fascinating overview of the clash between Law of the Sea rules and human rights in search and rescue operations near Libya, resulting in refoulement by merchant vessels, a ban of Medicins sans Frontiers in the SAR zone, and dilemmas in finding common solutions.

The fourth panel examined accountability issues.  Yi Chao of McGill argued in favor of placing financial penalties on refugee producing countries, leaving most the audience wondering how to hold proxy states, arms dealers and security companies accountable.  Marianne Nerland logically suggested that there is a need for an independent accountability mechanism to address NGO abuses in refugee camps.  Marie Aronsson Storrier and Susan Breau of Reading proposed the recognition of an obligation to record the names of the dead and missing in the Mediterranean, see the Last Rights Project.

Professor Cecilia M. Bailliet gave the second keynote, addressing the need for complementary standards to the Convention on the Elimination of Racial Discrimination to tackle the structural and systemic problems of racism and xenophobia affecting refugees and IDPs. She called for review of  national emergency legislation addressing immigration and terrorism for identification of discriminatory effect or implementation, as well as collection of best practices including progressive case law from regional and national courts.

Jørgen Carling of PRIO, gave the last Keynote in which discussed the precariousness of not including refugees within the broader group of migrants, as it results in denial of protection to other classes of migrants.  He was followed by a panel on precarity and agency in transnational lives.  Bhanu Prasad and Jyoti Bania of the Tata Institute in India presented their reserach on the plight of Muslim women migrants in the Gulf countries.  They were followed by a triad from Maastricht, Harres Yakubi, Vittorio Bruni, and Clara Alberola who analyzed how migrants are subject to corruption in transit.  Simon Yin of Hefei, China, described the integration difficulties faced by African migrants when migrating to Guangzhou.  Erlend Paasche of Oslo recounted his interviews with Nigerian Post graduates who chose to migrate in an irregular manner.

The sixth panel examined the abyss, marked by Daniel Agbiboa and Ann O. Afadam of Centre for Rights and Development, Nigeria, who told of the strategies taken by local communities to counter recruitment by Boko Haram.  Next,  James C. Simeon (of York U) presented a paper on jurisprudential trends regarding exclusion from asylum on the basis of complicity in terrorist crimes.  Jay Johnson of UCLA gave a thought-provoking overview of the mass closures of refugee reception centers in South Africa.

Combining legal theory and issues of practical implementation Nula Frei and Constantin (Tino) Hruschka examined the procedural dimension of the obligation to assess vulnerability in the Common European Asylum System (CEAS).

That session was followed by more optimistic presentations, chaired by Beth Lyon of Cornell Law School, including Jan-Niklas Sievers on the expansion of German University legal aid clinics for asylum seekers, Jonathan Weaver and Franceso Tonnarelli of UN Habitat on new strategies for Integrated Urban design as a durable solution, Jennifer Prestholdt of the Advocates for Human Rights, on the important lessons learned from the Liberian Truth and Reconciliation Commission Diaspora Project including the importance of giving refugees a right to participation, the opporunity to express themselves and tell their story, the right to be heard, and the right to have their sense of Identity recognized.  These are principles that should be upheld within the asylum processing system.  Rouyba Al-Salem of McGill ended the conference by calling upon Canada to improve civic education to Syrian refugees to improve integration.  The audience reflected on the difference between the situation now and the openness at the time of the Indo-Chinese exodus.  Everyone agreed that it was illuminating to engage in a multi-disciplinary forum and it is hoped that Cooperation will continue in the future!

The Strategic Prudence of the Inter-American Court of Human Rights-Rejection of Requests for an Advisory Opinion

Advisory opinions may be considered to challenge sovereignty because they often address political issues which may be contentious at the national level. I published an article in the Brazilian Journal of International Law which argues that the Inter-American Court of Human Rights is currently under pressure to uphold its legitimacy and examines whether the Court practices strategic prudence by rejecting certain requests for advisory opinions. In particular, it discusses four cases involving political issues: alleged incompatibility of national legislation with the American Convention, the prohibition of corporal punishment of children, the availability of judicial remedies for persons sentenced to death penalty, and due process rights relating to the impeachment of the president of Brazil. The article highlights that the examples of restraint reveal a complex balance between the Court’s role in applying and interpreting human rights in relation to nurturing democracy while respecting sovereignty. This signals a possible tension between the conventionality control doctrine and the limitation of the Court’s advisory jurisdiction.  The article is available here.

Model Guidelines on Equality, Non-Discrimination, and Diversity within Research

As a result of the #MeToo movement, women within academia have been reflecting on the need to set clear standards to change workplace culture and set the foundation for best practices.  There is currently an initiative at the University of Oslo Faculty of Law to promote new guidelines which articulate postive actions, identify negative practices, and set forth relevant substantive and procedural standards.  It is published here with the aim of serving as a model to other faculties and universities.

Model Guidelines on Equality, Non-Discrimination, and Diversity within Research

The Faculty of Law is committed to providing a positive research environment which recognizes diversity as a strength and source of creativity. The Faculty of Law seeks to enable researchers of diverse backgrounds to be able to pursue their intellectual aspirations and enjoy a meaningful careers. The increased recruitment of women and persons of diverse backgrounds to research positions and research leadership positions is an aim of the Faculty of Law. For women and persons of diverse backgrounds to enjoy equality in research programs, this requires equal right to inclusive participation, respect, and access to possibilities for advancement and enjoyment of the workplace environment. Research programs/groups are obligated to prevent discrimination by taking concrete action to correct discriminatory attitudes and structures and promote a respectful workplace environment.

Positive Structural Actions The Faculty of Law will take specific measures to ensure that all researchers, irrespective gender, transgender identity or expression, national, racial or ethnic origin, religion or belief, disability, sexual orientation or age will have equal access to research opportunities and shall not be subjected to diminished prestige and lack of power.

Recruitment: Research programs will make best efforts to recruit women and persons of diverse backgrounds as researchers and research leaders- through processes that are inclusive, clear, accessible, and transparent. The Faculty of Law will endeavor to enable researchers to pursue research-related teaching.

Evaluation: The heightened visibility of women and persons of diverse backgrounds as researchers and research leaders risks increased pressure and overly critical examination of their performance, prompting overachievement or underachievement. Evaluations should be designed to identify such risks and respond with an adequate strategy.

Transparancy: The Faculty of Law commits to upholding the principle of transparency in recruitment, evaluation, advancement, and demotion/dismissal of women and persons of diverse background within research programs.

Reporting: Research programs will submit reports on what actions they have taken to promote equal participation and advancement of women and diverse researchers. Research groups are to identify and correct both formal and informal mechanisms of subordination and marginalization. Research Leaders are to set empowerment goals for female and diverse researchers at all levels. LIMU will conduct an evaluation in situations where there are women leaving research projects.

Prizes and Citations: The Faculty of Law will commit to nominating women for research prizes, maintain a bibliography of research by women, promoting a citation policy which reminds academic staff to cite women researchers, assist women researchers in attaining access to research conferences, etc.

Seminars/Workshops to promote Advancement and Retention of Women Researchers:  The Faculty of Law commits to increasing the appointment of women to Research Leadership positions and ensuring retention of women leaders. The Law Faculty will offer workshops to women researchers on relevant topics, such as improving the CV, writing research applications, publishing in international journals, Understanding Gender Dimensions of Leadership/Women Role Models. Women researchers at all levels will be given information on their rights and possibility for redress.

The Faculty of Law will also offer regular gender training to Research Leaders to promote awareness, such as Recognizing Unconscious Gender Bias, Devaluation, Exclusion, and Stereotyping when evaluating and interacting with women research staff, Strategies for Retention of Women Research Leaders, Supporting the Work-Life Balance, etc. Research leaders are to understand that commitment to gender equality is measurable in words and actions.

Research Forum: The Faculty of Law will establish a Research Forum where researchers can meet to discuss research ideas and experiences with each other and discuss gender equality practices.

Mentor Program: Women researchers and researchers of diverse backgrounds may benefit from access to mentors to discuss the challenges of pursuing research.[1] The Faculty of Law will expand the mentor program to encourage women researchers and researchers of diverse backgrounds (including research fellows, researchers, and research leaders) to seek and serve as mentors.

Access to research assistance: The Faculty of Law will provide research assistance to women researchers in order to facilitate meeting research deadlines.[2]

Mobility: Women researchers have lower rates of mobility. One aspect is the challenge presented by combination of parenthood responsibilities with a research career. The Faculty of Law shall aim to solicit funds to create a grant for parents seeking to pursue research stays abroad in order to support costs relating to childcare, education, or other costs related to the maintenance of children abroad.

Women researchers will not be forced to commute away from small children when part of a research project. Facilitation of part-time physical presence should be pursued in order to support the balance of family commitments and academic career.

Individual Discrimination, Harassment, Exclusion, Devaluation & Tokenism

The Faculty of Law is committed to countering discrimination, exclusionary practices, devaluation of research, humiliation, and harassment within research programs and recognizes a no-tolerance position on these practices. Research staff shall not be subject to discrimination on the grounds of sex, ethnicity, age, disability, or sexual orientation.

The Faculty of Law will provide a course on discrimination, harassment, exclusionary practices, marginalization, devaluation of research, and stereotyping (“overly-sensitive-difficult-insubordinate-oppositional”) to research staff and disseminate these guidelines. Passive-aggressive exclusion is unacceptable. Examples of such behavior include failure to include a researcher in meetings or events, ignoring or overlooking a researcher in meetings and events, subtle insults, forgetting to cite or list a researcher in reports, devaluation of research, and failure to provide constructive feedback- instead providing unclear feedback or no feedback.

The Faculty of Law will seek to provide a safe work environment for women researchers by taking measures to ensure that women will not be harassed by employees or students on social media.

Definitions of Discrimination and Harassment

EU Directive 2006/54/EC of 5 July 2006 on the Implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation

Article 2- Definitions

Direct Discrimination- where one person is treated less favorably on grounds of sex than another is, has been or would be treated in a comparable situation

Indirect discrimination– Where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion, or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary

Harassment- Where unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment

Sexual Harassment– Where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment

Tokenism- The achievement of gender balance among researchers and research leadership is valued by Research Funds, such as the European Research Council. It is important that women researchers not be treated as tokens within research programs, in which they are recruited because of their gender in order to prove the non-discriminatory quality of the program. They are permitted to form part of a research program but not allowed to enjoy full participation due to coercive, authoritarian treatment, denial of advancement opportunities, exclusionary practices, psychological stress, alienation, devaluation, or demotion.  These practices carry a risk of additionally promoting gender stereotypes (the workaholic, the mother, etc.)  This results in demotivation, frustration, negative self-image, isolation, marginalization, and reduced aspirations and performance.

Complaint Mechanism: Persons who experience discrimination, harassment, or exclusion are to contact the Head of Department, alternatively LIMU or LAMU, or the Speak Up procedure. All Department Heads are to inform researchers about the availability of these procedures.[3]

 Termination, Dismissal, or Demotion within Research Programs

The Faculty of Law will conduct a gender assessment of termination of contract, dismissal, and demotions involving women within research programs. All such proceedings must meet procedural requirements of written notice, identification of substantive grounds for termination, representation by union and administration, and fair opportunity to respond.

 Documenting a Demotion

The project director or manager must be able to produce specific documentation in order to support an involuntary demotion. Examples of specific documentation include a poor performance evaluation, disciplinary warning letters, or documentation of lack of work, reorganization, or change in sponsored program needs.

LIMU, the Faculty Administration, and the Union must assist and advise project directors and managers in documenting a case for demotion.

Notifying Researcher and Reviewing a Demotion

The LIMU, administration, and Union must review the supporting documentation for a demotion before a demotion is implemented.

If a researcher elects a voluntary demotion, the union or administration must be available to counsel the employee.

Providing Notification Memorandum to Researcher/Written Request by Researcher

If the demotion action is involuntary, the project director or manager must provide, after consultation with the office responsible for personnel matters, a written notification memorandum to the researcher who is being demoted. The written notification memorandum must explain the reason(s) for the demotion, the effective dates for the demotion, and whether the demotion is temporary or permanent.

For a voluntary demotion, the researcher must provide his or her project director or manager with a written request for the demotion.

Retaining the Notification Memorandum/Written Request

For involuntary demotions, a copy of the notification memorandum sent to the researcher must be retained in the personnel file. When a researcher requests a voluntary demotion, a copy of the written request must be retained in the personnel file.

 

 

[1] https://www.uio.no/english/for-employees/competence/gender-equality/mentoring-programme/

[2] https://www.uio.no/for-ansatte/enhetssider/jus/ledelses-og-utvalgsmoter/limu/

[3] http://www.uio.no/english/about/hse/speak-up/index.html

Call for Papers: Vulnerability, Protection, and Agency: An Interdisciplinary Conference on Migration

24-25 May 2018, Law Faculty, University of Oslo, Norway

Organized by the Research Group on International Law and Governance in collaboration with the Research Group on Human Rights, Armed Conflict, and Law of Peace & Security, and the Peace Research Institute of Oslo (PRIO)

Migration is presenting a challenge to migration practitioners, policymakers and academics given the manifestation of extra-territorial approaches, increased reliance on technology, and weakening of accountability for violations of rights. Migrants are increasingly limited in accessing rights and in receiving protection from harm when fleeing, both en route and upon arrival.   The phenomenon of irregular migration, often organized by human smugglers, foments vulnerability. Legal and operational structures result in discriminatory treatment, detention, and deportation, signaling what Boaventura de Sousa Santos characterizes as “abyssal thinking”.  The majority of migrants and displaced persons actually remain within their own countries or regions in Africa and Asi, thus we also seek understanding of the consequences of internal migration/displacement and “trapped migration” e.g. the Rohingya exodus, the Syrians, and Ukrainians.

A juxtaposition is the articulation of migrants’ agency, relating to their journey, drive to seek protection and regular status, and survival.  Their agency is both strengthened and weakened by the use of technology and social media, modes of travel, smuggling and use of migration brokers, the migration industry (detention, biometrics, security), transnational remittances.

Finally, we consider the complex situation of the asylum bureaucracies; there are disagreements among and within Ministries of Justice, Immigration Boards, Immigration Judges and regular case workers as to the legality or morality of regulations and policy implementation.  There are tensions regarding limited accountability of state and non-state actors acting in a official capacity as well as the negative and positive impact on the agency of migrants.  Migrants have mixed experiences communicating with interpreters, police, caseworkers, and other actors.

The lack of an international refugee law court has resulted in a flood of cases being presented to human rights courts and committees at the universal and regional levels resulting in increased fragmentation without attaining normative clarity.

This conference calls for papers proposing how to move beyond the abyss, welcoming perspectives from law and the social sciences (including geography, anthropology, sociology, criminology, and IR); interdisciplinary approaches are encouraged.  We call for paper proposals from scholars, policy makers, or practitioners, at different stages of their careers, Phd candidates, post-docs, and professors.   Proposals for a poster session will also be evaluated:

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Go On! Legitimacy of Unseen Actors in International Adjudication

 

On 26 and 27 October, the Conference on the Legitimacy of Unseen Actors in International Adjudication will take place in The Hague, co-organised by the PluriCourts Centre of Excellence (Oslo University) and the Europa Instituut (Leiden University).

 

‘Unseen actors’ are central to the ‘institutional makeup’ of international courts and tribunals as registries and secretariats, law clerks and legal officers may exert varying levels of influence on the judicial process.

 

At this conference, legal and political science scholars and members of adjudicatory institutions will consider and discuss the legitimacy of assigning ‘unseen actors’ certain roles in the judicial process as well as the implications thereof for the dispute settlement mechanism as such.

 

The Conference Programme and link for registration are now available at http://www.leidenlawconference.nl/8-conferences/31-unseen-actors . For more information, please email Prof. dr. Freya Baetens at freya.baetens@jus.uio.no .

 

Policy Brief on Women in Da’esh- From Recruitment to Sentencing

Ester Strømmen has recently published a PRIO policy brief on Women in Da’esh

Da’esh has stunned the world with gross human rights abuses, gendered violence, and practices of sexual slavery, and yet, the organization has attracted a large amount of female recruits. Women who have joined Da’esh have been met with a storm of disbelief and gendered commentary, and have even been designated their own term – ‘jihadi brides’. This policy brief by Ester Strommen from PluriCourts, the University of Oslo, explores agency and women in Da’esh: why women join, their roles, and how women are treated if they return to the West. The brief illuminates how gendered understandings of Western female foreign fighters are affecting judicial processes and potentially creating gaps in our security structure. It examines how gendered narratives in sentencing may be in conflict with UNSCRes 2178 and CEDAW.

 

Read the full policy brief here.

Ester Strømmen is research assistant at PluriCourts at the Department of Public and International Law, University of Oslo, Norway.  She works within the pillar on International Criminal Law. She holds a Masters of Law (LLM) in Public International Law from the University of Oslo, and an M.A. (Honours) from the University of St. Andrews in International Relations. Her research areas include international criminal law, counter terrorism and human rights, foreign fighters and gender and terrorism.