Beyond Fragmentation

Andrea K. Bjorklund

McGill University - Faculty of Law

Sophie Nappert

Three Verulam Buildings

January 13, 2011

UC Davis Legal Studies Research Paper No. 243

The fragmentation of international law is in some ways an embarrassment of riches, with multiple tribunals creating jurisprudence in particularized areas. This richness leads also to complexity and to the phenomenon that Marti Koskiennemi has so accurately termed “fragmentation.” Our purpose in this essay is to look “beyond fragmentation” given that the status quo of multiple discrete nuclei developing in isolation from one another is unsatisfactory and, we argue, stands in the way of the continuing relevance of international law in modern times. The international investment arena, with its myriad ad hoc tribunals and legal doctrines enshrined in treaties that either codify or build on customary international law, offers an excellent laboratory in which to theorize about communication between the nuclei and when such communication is appropriate. We have suggested an inter-nuclei communication model for use when tribunals are obliged to give content to treaty norms that are inherently vague or to fill lacunae in treaties. This approach takes advantage of the positive aspect of fragmentation – the development of specialized jurisprudence in particular areas of the law. Yet this does not mean that all expertise is freely transferable. A specialized doctrine deeply embedded in a complex treaty might be a poor candidate for transfer to another regime in which the analogous doctrine operates in an altogether different context. For this reason we have suggested a cautious approach to inter-nuclei communication characterized by a willful awareness by tribunals in one sphere of international law of what goes on in other related spheres, and an exercise of canvassing the views expressed by other tribunals in these related spheres for guidance to inform, or test, one’s own analysis. We test our propositions by reference to two recurring issuing in international investment arbitration – the principle of denial of justice and the doctrine of necessity.

Number of Pages in PDF File: 48

Keywords: international investment arbitration, investment treaty arbitration, international investment law, investor-state arbitration, fragmentation, necessity, denial of justice, BITs

JEL Classification: F00, F02, F10, F13, F20, F21, F34, F40, K33

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Date posted: January 16, 2011 ; Last revised: February 28, 2011

Suggested Citation

Bjorklund, Andrea K. and Nappert, Sophie, Beyond Fragmentation (January 13, 2011). NEW DIRECTIONS IN INTERNATIONAL ECONOMIC LAW – IN MEMORIAM THOMAS WÄLDE, CMP Publishing, 2011; UC Davis Legal Studies Research Paper No. 243. Available at SSRN: https://ssrn.com/abstract=1739997

Contact Information

Andrea K. Bjorklund (Contact Author)
McGill University - Faculty of Law ( email )
3644 Peel Street
Montreal H3A 1W9, Quebec
5143985372 (Phone)
Sophie Nappert
Three Verulam Buildings ( email )
London, WC1R 5NT
United Kingdom
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