Interview with Nicolás M. Perrone: Investment Treaties and the Legal Imagination – Part II: More than winning and losing

 In part I of this series, Dr Nicolás Perrone and ILA Reporter Assistant Editor Stephanie Triefus discussed the meaning of the legal imagination. This part elaborates on the content of Dr Perrone’s book and how and why the debate around how we talk about international investment law should evolve. 

ST: In your book you discuss the Philip Morris v Uruguay arbitration, which is similar to the claim brought against Australia by Philip Morris via the Australia-Hong Kong BIT. The current Australian government is not concerned about ISDS because Australia ‘won’ this arbitration, and so continues to favour ISDS in its review of its investment agreements. What does the reasoning in these awards tell us (or conceal) about how investment arbitrators conceive of the state’s right to regulate? 

NP: There is a document from the Cologne Society from around 1956 or 1957 that was submitted to the World Bank, that was saying that state regulation is very dangerous, and we should be careful about it. But then when more lawyers got involved, they were more nuanced, saying that of course the state needs to regulate, regulation is totally fine – the American Bar Association was saying that certain regulations are fine, but other regulations go too far. Something that they were very interested in back then was to make it impossible for Global South governments to expropriate when a provision prohibiting nationalisation was included in concession contracts. So they wanted to interpret a contract in a way that could trump states’ right to expropriate, even if that right was part of customary international law and enshrined in the General Assembly Resolution on Permanent Sovereignty over Natural Resources. So it’s not always obvious which regulation is the one that they want to prevent or make more difficult to implement. It depends on corporate needs, existing public policy and, of course, lawyers’ creativity.

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Interview with Nicolás M. Perrone: Investment Treaties and the Legal Imagination – Part I: How we imagine international investment law

International investment law has been facing an increasing amount of negative publicity of late. Its detractors maintain that investment treaties constrain state regulatory space, affecting human rights and environmental measures, and exclude local communities from participating in decisions affecting them. On the other hand, proponents of investment treaties claim that they are necessary to facilitate development and that investment arbitration strikes a fair balance between investor rights and the public interest. In his monograph Investment Treaties and the Legal Imagination, recently published by Oxford University Press, Dr Nicolás Perrone contributes a historical perspective to this debate. Under the international investment law regime, foreign investors enjoy a privileged position; they have strongly enforceable rights, but no obligations. Perrone shows that the unusual status of foreign investors in international law is no accident, but rather the result of a “world-making project realized by a coalition of business leaders, bankers, and their lawyers in the 1950s and 1960s”. This world-making project, which is still alive and well in the legal imagination of investment lawmakers and practitioners today, maintains the power of corporate actors while silencing and making invisible those who are affected by investment projects.  

Dr Perrone is a Research Associate Professor at Universidad Andrés Bello, Chile, and has previously taught at Durham University and Universidad Externado de Colombia. Dr Perrone has been Visiting Professor at Universidad Nacional de San Martín, the International University College of Turin, and Università del Piemonte Orientale, a faculty member of the Institute for Global Law and Policy (Harvard Law School) and a Visiting Lecturer at Xi’an Jiaotong School of Law. Dr Perrone has also consulted for the OECD and worked as a legal fellow for UNCTAD. 

Dr Perrone joined Assistant Editor Stephanie Triefus for a conversation about his monograph and how academics and policymakers should reflect on the legal imagination of investment law as they engage in reform of the international investment law regime. 

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Interview on the Elgar Companion to the Hague Conference on Private International Law – Part 2

The ILA Reporter is excited to share Part 2 of our interview about the recently released Elgar Companion to the Hague Conference on Private International Law. This text forms part of the Elgar Companions to International Organisations series and was released 19 December 2020. Part 1 is available here for viewing.

The Companion is a guide to the Hague Conference on Private International Law (HCCH). It is a critical assessment of, and reflection on, past and possible future contributions of the HCCH to the further development and unification of private international law, and was written by international experts who have all directly or indirectly contributed to the work of the HCCH.

This interview was conducted by Josephine Dooley, an Assistant Editor of the ILA Reporter, with the editors of the Elgar Companion to the Hague Conference on Private International Law

  • Thomas John, ACIArb, Partner, Grotius Chambers, The Netherlands
  • Rishi Gulati, LSE Fellow in Law, London School of Economics and Political Science, United Kingdom
  • Ben Köhler, Senior Research Fellow, Max Planck Institute for Comparative and International Private Law, Germany

In Part 2, Thomas, Rishi and Ben discuss with Josephine:

  • The future of the Hague Conference on Private International Law (HCCH) as an international organisation.
  • Future areas of work for HCCH.
  • The 2019 Hague Judgments Convention.

Many thanks to Thomas, Rishi and Ben for taking the time to speak to the ILA Reporter.

Interview on the Elgar Companion to the Hague Conference on Private International Law – Part 1

The ILA Reporter is excited to share Part 1 of our interview about the recently released Elgar Companion to the Hague Conference on Private International Law. This text forms part of the Elgar Companions to International Organisations series and was released 19 December 2020.

The Companion is a guide to the Hague Conference on Private International Law (HCCH). It is a critical assessment of, and reflection on, past and possible future contributions of the HCCH to the further development and unification of private international law, and was written by international experts who have all directly or indirectly contributed to the work of the HCCH.

This interview was conducted by Josephine Dooley, an Assistant Editor of the ILA Reporter, with the editors of the Elgar Companion to the Hague Conference on Private International Law:

  • Thomas John, ACIArb, Partner, Grotius Chambers, The Netherlands
  • Rishi Gulati, LSE Fellow in Law, London School of Economics and Political Science, United Kingdom
  • Ben Köhler, Senior Research Fellow, Max Planck Institute for Comparative and International Private Law, Germany

The ILA Reporter thanks the editors for their willingness to share these insights with our readership.

Interview with Dr Julie Fraser: Social Institutions and International Human Rights Law Implementation – Part II: Social institutions and dynamism

In Part I of this series, Dr Julie Fraser and ILA Reporter Assistant Editor Stephanie Triefus discussed how social institutions can be used to overcome the lack of resonance of human rights discourse around the world, including Australia. This part delves deeper into what social institutions are, how they change, and busts some myths about the concept of culture.

ST: Religion is so structured that it seems to have more in common with public institutions, whereas other social institutions like the media, universities etc are more fast and loose, so it really depends on who sets up these organisations and what their intentions are. 

JF: I like the term fast and loose! I think I phrase it in my book as ‘dynamic and evolving’. But that really is it. All of these social situations, because they’re part of our culture, are fast and loose – to varying degrees. Even though we might think of religion as ancient and that we’ve had these practices for sometimes thousands of years, they are constantly changing. For example, Muslims may still pray five times a day, but they now can download smartphone apps that tell the prayer times and play the call to prayer.  So yes, the norms and rules do change based on different influences, and this is the beauty of social institutions: they give the perception of permanence despite constant evolution. We can all be agents within our culture – and if we can bring our social institutions more in line with human rights, then it can be really powerful. And that approach again goes against the legalistic top-down approach. Instead of the international community or national government imposing certain rules, it’s individual people within their social institutions saying, ‘we want these rules’. In my case study, it was Muslim women from within Islamic organisations saying, ‘we want equality and we want reproductive rights’. And that is really powerful.

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Interview with Dr Julie Fraser: Social Institutions and International Human Rights Law Implementation – Part I: Lessons for international human rights implementation in Australia

Human rights are now extensively codified in international treaties that enjoy widespread State ratification. The pressing challenge of today is therefore the realisation of human rights in States parties around the world. This has been a difficult task for both governments and international human rights bodies that supervise human rights compliance, which have to date typically taken a legalistic approach. Prioritising State-centric legislative measures in the implementation of human rights, while necessary to an extent, is not always the most effective method of translating human rights law into lived experience. The use of non-legal, culturally sensitive measures is typically neglected in international human rights discourse, to the detriment of implementation in societies where human rights can be seen as a foreign imposition. Dr Julie Fraser’s book Social Institutions and International Human Rights Law Implementation: Every Organ of Society, recently published by Cambridge University Press, addresses this problem by examining the permissibility of other measures of implementation and advocating culturally sensitive approaches for realising human rights. Dr Julie Fraser is a human rights lawyer with experience in both academia and practice. As an Assistant Professor with the Netherlands Institute of Human Rights (SIM) at Utrecht University, Dr Fraser has published, presented, and taught on topics including human rights law, women’s rights, and transitional justice.

Using Islam in Indonesia as a case study, Dr Fraser demonstrates how the right to reproductive health has been successfully implemented through the central involvement of Islamic law and institutions, complemented by grassroots advocacy by Muslim women. Dr Fraser joined Assistant Editor Stephanie Triefus for a conversation about her study and its resonance for Australia’s domestic implementation of human rights.

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