The Rise and Decline of the International Rule of Law and the Job of Scholars

Heike Krieger/Georg Nolte/Andreas Zimmermann (eds), The International Rule of Law: Rise or Decline? (c) Anne Peters, Forthcoming

Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2017-16

14 Pages Posted: 5 Sep 2017

Anne Peters

Max Planck Institute for Comparative Public Law and International Law

Date Written: August 30, 2017

Abstract

International law feeds on preconditions which it cannot guarantee itself. International scholarship, too, must come to grips with pre-conditions and existing parameters over which it has no control itself. But such scholarship must not ‘succumb’ to these factual and ideational realities by adapting its methods and findings to any given political, social, and economic climate. It is the job of international legal scholars to produce ideas in a spirit of realist utopianism (John Rawls). Depending on the existing parameters, these ideas are apt to shape attitudes and actions, or not. Such scholarship also needs to distance itself from its object of study in order not to lose its capacity to criticise the law and the practice. How far exactly scholarly writing should transcend or keep aloof from the prevailing political climate and from concerns of feasibility depends on the research questions under discussion and is a matter of judgment.

The style of scholarship suggested here is illustrated by the work of three eminent scholars whose careers continued through different political eras more or less favourable to the international rule of law: Hersch Lauterpacht, Antonio Cassese, and Josef Kunz.

Referência:

PETERS, Anne. The Rise and Decline of the International Rule of Law and the Job of Scholars (August 30, 2017). In: KRIEGER, Heike; NOLTE, Georg; ZIMMERMANN, Andreas (Eds.). The International Rule of Law: Rise or Decline? Forthcoming. Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2017-16. Disponível em: <https://ssrn.com/abstract=3029462>. Acesso em: 22 set. 2017.

The Control Over Knowledge by International Courts and Arbitral Tribunals

Oxford Handbook of International Arbitration, Schultz, Thomas and Ortino, Federico (Eds), Oxford University Press, 2018, Forthcoming

25 Pages - Posted: 14 Sep 2017

Jean d'Aspremont

University of Manchester - School of Law; Sciences Po Law School

Date Written: September 9, 2017

Abstract

This chapter constitutes a heuristic exercise meant to re-imagine international courts and arbitral tribunals as bureaucratic bodies controlling the social reality created by the definitional categories of international law. It primarily claims that, in performing their wide variety of functions, international courts and arbitral tribunals, not only make use of the social reality created by international law, but also exert control over it. This control over the social reality created by the definitional categories of international law is approached as a form of control over knowledge and, it is argued, constitutes a feature of bureaucratic processes. In contending that international courts and arbitral tribunals control knowledge in this way, this chapter projects an image of international dispute resolution processes as bureaucratic sites where power is exercised. By virtue of this specific representation of international courts and arbitral tribunals as bureaucratic bodies controlling knowledge, this chapter challenges some common representations of international courts and arbitral tribunals as resorting to some pre-existing knowledge and accordingly sheds light on the extent to which international courts and arbitral tribunals define social reality and the problems in which they intervene. This chapter ultimately aims at providing new perspectives on the power exercised by international courts and arbitral tribunals, while also inviting international lawyers to reflect on the extent to which the knowledge they rely on to manage the world is controlled by international courts and arbitral tribunals.

Referência
D'ASPREMONT, Jean. The Control Over Knowledge by International Courts and Arbitral Tribunals (September 9, 2017).In: SCHULTZ, Thomas; ORTINO, Federico (Eds.). Oxford Handbook of International Arbitration. Oxford: OUP, 2018, Forthcoming. Disponível em: <https://ssrn.com/abstract=3034682>. Acesso em: 22 set. 2017.

Lessons for the USA from the Hague Principles

Uniform Law Review 2017, 1-13

NYU School of Law, Public Law Research Paper No. 17-30

14 Pages Posted: 15 Aug 2017 

Linda Silberman

New York University School of Law

Date Written: August 2017

Abstract

In this article, Professor Silberman offers a review of US choice of law approaches that address party autonomy in international commercial contracts. She explains that choice of law rules in the United States are the province of state, not federal law, and to that end gives examples from two states that have codified choice of law and identifies several states that have an absolute autonomy rule for situations when the parties choose forum law. However, the focus is on the provision in the Restatement (Second) of Conflict of Laws dealing with party autonomy in contracts because most states in the United States have adopted that approach. Professor Silberman criticizes the existing Restatement rule for its failure to distinguish between interstate and international contracts and observes that several US. Supreme Court decisions would seem to support broader autonomy for parties to an international contract to choose the applicable law to govern the contract. 

Professor Silberman also explains that there is an ongoing American Law Institute project to revise the Restatement (Second) – the Restatement (Third) – and she suggests that the recent Hague Principles offer several features that might be included in a revision of the Restatement provision on party autonomy in contracts. In particular, she points to elimination of the requirement that there be a geographical connection to the applicable law chosen and distinguishing between commercial and other types of contracts.

Professor Silberman then compares the Hague Principles and the present Restatement provisions in their treatment of other limitations on the parties’ ability to choose the applicable law in an international commercial contract. She criticizes several of the specific options offered in the Hague Principles and concludes that the present Restatement approach in this area is more desirable for courts in the United States.

Referência:
Silberman, Linda. Lessons for the USA from the Hague Principles (August 2017). Uniform Law Review 2017, 1-13; NYU School of Law, Public Law Research Paper No. 17-30. Disponível em: <https://ssrn.com/abstract=3017295>. Acesso em: 20 set. 2017.