Stephen M. Schwebel

Ad Hoc Chambers of the International Court of Justice

The International Court of Justice formed its first Chamber for dealing with a particular case in 1982; its second, in 1985; and, in 1987, its third and fourth ad hoc Chambers. This article examines what appears to be an accelerating trend toward recourse to ad hoc Chambers in the light of the provisions of the Statute and Rules of the Court and of its pertinent practice to date. The discussion seeks to elucidate four principal questions:

National Judges and Judges Ad Hoc of the International Court of Justice

When the Statute of the Permanent Court of International Justice was drafted by an Advisory Committee of Jurists in 1920, a paramount question was, should a judge of the nationality of a State party to the case sit? The sensitivity of the issue was encapsulated by a report of a committee of the Court in 1927 on the occasion of a revision of the Rules of Court. It observed that: “In the attempt to establish international courts of justice, the fundamental problem always has been, and probably always will be, that of the representation of the litigants in the constitution of the tribunal. Of all influences to which men are subject, none is more powerful, more pervasive, or more subtle, than the tie of allegiance that binds them to the land of their homes and kindred and to the great sources of the honours and preferments for which they are so ready to spend their fortunes and to risk their lives. This fact, known to all the world, the [Courts] Statute frankly recognises and deals with.” 1

The Influence of Bilateral Investment Treaties on Customary International Law

My simple thesis, which I hope that this sophisticated audience will not find simplistic, is this: Customary international law governing the treatment of foreign investment has been re shaped to embody the principles of law found in more than two thousand concordant bilateral investment treaties. With the conclusion of such a cascade of parallel treaties, the international community has vaulted over the traditional divide between capital-exporting and capital-importing states and fashioned an essentially unified law of foreign investment. For some two hundred years, the international community was divided over what law gov erned the treatment of foreign investment and over the content of that law. In large and loose terms, capital-exporting countries maintained that international law, which indisputably related to the treatment of aliens, related to the treatment and taking of their property as well. The standard of that treatment could not lawfully fall below the minimum standard of international law. If the property of a foreigner was expropriated by a state, the expropriation was lawful only if it was for a public purpose, not discriminatory, and accompanied by the payment of prompt, adequate, and effective compensation. Capital-importing countries tended to have another perspective. The foreign investor was governed by the law of the host state and the remedies afforded by that law alone; he was en titled to no more than national treatment, the treatment accorded by the host state to the investments of its own nationals. This fundamental doctrinal division, illustrated by the Calvo Clause, the Russian Revolution, and the famous exchanges between Cordell Hull and the Mexican Foreign Minister over Mexi can oil expropriations, was carried into the post-World War II world?so much so that when the Supreme Court of the United States in the Sabbatino case in 1964 invoked the act of state doctrine to decline to pass upon Cuban expropriation of American property, it stated that:

Sir Gerald Fitzmaurice and the World Crisis: A Legal Adviser in the Foreign Office (Book)

Examines the impact of the legal advice of G.G. Fitzmaurice on the making of British foreign policy during the key phases of the developing World Crisis, from 1932 to 1945, in relations with Japan and Germany. Particular attention is given to whether relations with Germany were defined in terms of classical power politics or in a new language of the rule of law in international society. The main themes highlight Fitzmaurices contribution to the shaping of major issues and illustrate the breadth of scope in the work of the legal adviser: the Manchurian Crisis; Anglo-German relations in the 1930s; the concluding of the Anglo-Polish Treaty of 1939; economic warfare and the laws of war at sea (1939--43); and debate surrounding the nature of Germanys surrender and the drafting of armistice terms. The text emphasizes the complexity of the technical crafts of the international lawyer. It shows how the skills of the diplomatic historian, working with unpublished Foreign Office archives, are essential to unravelling the true legal practice of a state as an element in the evolution of customary international law. The aim is not simply to unearth and present, in a minimally edited form, the legal opinions of Fitzmaurice, but also to assess his impact within the Foreign Office. It concludes that the role of the individual international lawyer in government institutions is potentially very significant. However, his influence depends not simply on the stubbornness with which he holds onto his professional expertise, but also on his moral vision and sensitivity towards the complexities of the context in which he has the potential to shape events.

Sir Elihu Lauterpacht (1928–2017)

Judge Sir Hersch Lauterpacht died on May 8, 1960. His death at the age of sixty-two was unexpected and bitterly premature. At his funeral, one of his greatest contemporaries,Wilfred Jenks, gave a magnificent address, in which he recognized the joy that a son of high promise and early attainment in their mutual field brought to a father. Eli more than lived up to his father’s demanding expectations. He became an unsurpassed international legal advocate of the twentieth century. For decades he was a Cambridge lecturer of extraordinary flair and popularity. A Fellow of Trinity College Cambridge for some sixty-five years, he supervised law students of Trinity and mentored students of international law throughout Cambridge University. Some of the leading international lawyers of our time were his students. Four of them became president of the International Court of Justice. Eli had entrepreneurial flair as well. He founded Grotius Publications, which took over the publication of International Law Reports and published many other books in the field. It ultimately was acquired by Cambridge University Press. In that enterprise, as in much else, he was mightily helped by his wife Cathy, who ran the administration of Grotius Publications. Eli founded the Cambridge Research Center in International Law, which the then Whewell Professor James Crawford renamed the Lauterpacht Center of International Law. It remains central to international legal studies at Cambridge. Eli’s career as a practicing international lawyer par excellence was launched when he was in his twenties. The Imperial Government of Iran expropriated the assets of the Anglo-Iranian Oil Company in 1951. Iranian oil exports were largely suspended and oil that was shipped was pursued as “hot oil.” Eli acted as counsel for the renamed British Petroleum (BP). Iranian oil returned to international markets after prolonged negotiations between the Shah’s government, BP, and the other major international oil companies. Eli, at the ripe age of twenty-five, joined the chief legal counsel of BP and “the majors” in Tehran to work out those terms. Some ten years later, the general counsel of Exxon recounted that he and his colleagues were suffering through interminable negotiations in Tehran when Eli was parachuted in from London into their midst to deal with the international law elements of the nascent Consortium Agreement. “Eli,” he said, “was a breath of fresh air.”He not only deftly handled his elements of the negotiations, he enlivened the proceedings. Mr. Monaghan put his finger on a key element of Eli’s extraordinary professional success: his charm. Eli was refreshing. He

The outlook for the continued vitality, or lack thereof, of investor–State arbitration

Criticism of investor–State arbitration has reached its apogee with the proposal of the European Commission for replacing it with a standing tribunal and appeals recourse whose members would be appointed exclusively by States Parties to the Transatlantic Trade and Investment Partnership. The proposal is cast in terms designed to appease the unsound elements of that criticism. The arguments for so replacing investor–State arbitration are unpersuasive. Negotiating and realizing the EU’s proposal would be problematic. While the substantive principles of international investment law envisaged by the EU proposal rightly maintain the principles embodied in bilateral investment treaties, the EU’s approach risks producing international negotiations over those principles that could lead to sterile international confrontation.

Principles of International Investment Law@@@The "Fair and Equitable Treatment Standard" in the International Law of Foreign Investment

The treatment of foreign investors and of their investments on the territory of a host State is often subject to a bilateral investment treaty (BIT) signed by the national State of the investors and the host State. These BITs usually contain a clause in which the two States offer fair and equitable treatment (FET) to the foreign investors on their territory. Moreover, this clause has become a norm of customary law, implying that investors may rely on it even outside the context of the BIT. Foreign investors whose rights under this clause have not been respected may bring the State in front of an international tribunal. This book analyses not only the conventional and customary framework se the FET clause but also its scope and all its applications in the existing case law. This book tackles the standard of fair and equitable treatment by applying four conceptual frames: the legal basis of FET, its nature as a standard, its content and finally the implications of its breach. The first two chapters explore the two classical sources of international law as possible sources for FET. The main sources of FET lie in a rich conventional framework, mainly bilateral and regional. Yet the high number of BITs does not appear to offer a uniform model of FET clauses, quite the opposite; the book offers a classification of the FET clauses found in more than 400 BITs. Having concluded that the conventional framework is essential to FET, the book turns to the examination of the possible customary character of FET and argues that the view equating FET with the International Minimum Standard is erroneous and it limits the scope of FET. Alternatively, it suggests that the FET standard is an independent standard of customary nature. Then the book looks at the nature of FET, that of being a standard and retains three direct consequences for its meaning: its flexibility, the absence of a fixed content and its evolutionary character. With these three characteristics in mind, it proceeds to the third conceptual framework, the content of FET. Although no fixed content may be given to it, it identifies and develops each one of those situations in which the FET standard has already been applied. Finally, the last conceptual framework aims at discussing the final act of a FET claim, i.e. the amount of compensation awarded. It argues that FETis a standard which balances the interests and behaviours of both the States and the investors, at the stage of compensation.