Professionals of International Justice: From the Shadow of State Diplomacy to the Pull of the Market of Arbitration
Forthcoming in A. Nollkaemper, J. d’Aspremont, W. Werner & T. Gazzini (eds.), International Law as a Profession (Cambridge University Press)
Posted: 24 Feb 2015
Date Written: February 22, 2015
The growth of high stakes disputes between corporations and states has triggered a surge of interest for the professionals of international justice: the ‘club’ of international arbitrators or the ‘invisible college’ of the International court of justice (ICJ). Scholarly accounts on these professional practices tend to reinforce the fragmentation of international law into distinct poles - public international justice before the ICJ, and private international justice before institutions like the World Bank’s International Centre for Settlement of Investment Disputes (ICSID) or the Permanent Court of Arbitration (PCA). These formulations obfuscate the growing convergence between these two poles of international justice. This papers looks specifically at professional circulations: its cue is that far from being a side phenomenon, the professional assets accumulated collectively by the agents invested in international justice contribute to shaping the potential markets as much as the social credibility of transnational forms of dispute management. It argues, further, that these dynamics of circulation follow a pull of the market of private international justice. Its research strategy, based on biographical interviews and a database of over 400 profiles, underlines the inter-connectedness between the different institutions and professional arenas of international justice. Recalling first the common genesis of public and private international justice at the turn of the twentieth century, it explores their revivals in the 1980s: the symbolic boom of the ICJ contrasts with the market burst of international commercial arbitration. The flexibility of this form of ‘offshore litigation’ enabled its expansion towards high stake disputes between states and corporations from the 1990s. Mounting attacks against the legitimacy of the ICSID illustrate what the second part describes as a growth crisis: leaning on the symbolic authority of agents of public international justice has reinforced the dynamic of the market of private international justice through a pull that is transforming both poles of international justice. This is further illustrated with the revival of the PCA from the 2000s, as a new node of exchange between public and private international justice epitomizing a displacement of the centre of gravity of the field of international justice as a whole.
Keywords: investment arbitration, ICSID, permanent court of arbitration, international court of justice, international justice, professionals of international justice
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