The annual Freshfields Arbitration Lecture took place on 14 November 2023 with former judge at the International Court of Justice and current arbitrator, Sir Christopher Greenwood, GBE, CMG, KC, delivering the keynote address. The lecture was held for a second year at the Great Hall in Lincoln’s Inn.
Sir Christopher was introduced by Sylvia Noury KC, Head of Freshfields’ International Arbitration Group in London, and Professor Julian Lew KC, Head of the School of International Arbitration.
Sir Christopher spoke about current issues in Public International Law (PIL), including the role it has to play in arbitration, whether that be in inter-state disputes where international law takes centre stage, investor-state, or commercial disputes. He noted that even hybrid examples exist, such as the US-Iran Claims Tribunal which for much of its life tackled questions of domestic law, despite its origins being firmly rooted in international law.
Sir Christopher also touched upon the similarities between arbitral tribunals and the International Court of Justice (the ICJ). He argued that the ICJ is more like arbitral tribunals than one might think, including in the ability to select the members that comprise the court (or tribunal): where the parties before the ICJ elect to have a chamber of the Court hear the case, the parties will be consulted as to which judges are selected.
Turning to the body of the lecture, Sir Christopher focused on three applications of international law to arbitral tribunals: (i) where international law forms the lex arbitri (the governing law of the arbitration itself); (ii) where international law forms the substance of the arbitration; and (iii) ways in which courts outside the arbitration system police, enforce and execute arbitration awards.
The lex arbitri
Sir Christopher noted that international law is, almost always, the law governing inter-state arbitrations: it would be incredibly rare for states to elect to resolve such a dispute via the application of domestic law. He further analysed the impact of international law on the arbitrators hearing these disputes, considering the need for arbitrators to be impartial and scrupulously independent. This was not, Sir Christopher noted, how PIL arbitration began.
Early arbitrations, such as the Alabama arbitration arising from Britain’s conduct as a neutral during the American Civil War, were far removed from the levels of impartiality one expects today. In Alabama, the American-appointed arbitrator had played a central role in the facts of the case leading up to the arbitration while the British-appointed arbitrator was in near constant contact with the British Government and counsel throughout the proceedings.
Sir Christopher noted that, historically, inter-state tribunals have tended to take a rather conservative approach to questions of impartiality: nationality is not a ground for challenge, nor is the fact that an arbitrator used to work for or represent a party in the proceedings.
However, in investor-state arbitrations conflicts have been more widespread. Arbitrators have faced challenges as a result of issuing an award on a particular issue or appearing as counsel on a related topic. Sir Christopher concluded that the reality is that there is very little consensus on the nature of international law in the procedure of arbitrations.
International law as substantive law
First, Sir Christopher argued that international law has a role to play in questions of jurisdiction. He questioned whether, in inter-state cases, tribunals have the ability to deal with questions of international law that arise outside the interpretation of a particular treaty. He took the UN Convention on the Law of the Sea (UNCLOS) as an example: in the Chagos case, the UNCLOS-constituted tribunal decided it did not have the ability to decide whether Britain could declare a marine protected area around Diego Garcia as this went beyond its scope of interpreting the provisions of the convention.
Second, in the investor-state context, Sir Christopher noted that the influence of PIL concerns the grounding of the arbitration in either the relevant bilateral investment treaty or multinational treaty such as the ECT. Tribunals established in accordance with these treaties apply international law to certain matters, most clearly the Vienna Convention on the Law of Treaties to matters of treaty interpretation and the ILC Articles on State Responsibility to states’ actions. Sir Christopher questioned whether they could apply international law in a broader context but suggested that this depends on the individual treaty in question.
Third, Sir Christopher emphasised the difference between tribunals established in commercial arbitrations and national courts. National courts, he surmised, are bound by principles such as constitutional supremacy and the notion that the judiciary must speak with one voice with the executive (for example on questions of state recognition). These principles do not necessarily apply to arbitral tribunals: a commercial arbitration tribunal sitting in the UK, would not for example, be required to follow the British Government’s lead on the identity of the legitimate government of Venezuela.
International law in the national courts
Sir Christopher touched upon the role that national courts have to play in interpreting and applying international law, most notably in enforcement proceedings. In the investor-state context, the role of national courts depends on the arbitral institution. The ICSID Convention limits the role of domestic courts, while enforcement of arbitrations under the UNCITRAL rules typically involve the New York Convention, which allows for greater levels of intervention.
Sir Christopher urged the audience to look closely at the conduct of arbitrators in investor-state arbitrations, noting how seldom challenges to arbitrators for misbehaviour have been upheld. He also drew the audiences’ attention to the popular rhetoric of not allowing unaccountable international tribunals to interfere in exercises of sovereign government authority. This rhetoric, Sir Christopher underlined, is the same that is levied against bodies such as the European Court of Human Rights. Only a day before the Supreme Court’s ruling on the UK Government’s Rwanda policy, which Sir Christopher duly noted, he argued that it is tragic that those who swing the hammer against investor-state arbitration, by doing so help to strengthen the hammer wielded by opponents of international human rights tribunals.
In her vote of thanks, Norah Gallagher thanked Sir Christopher for his lecture, noting in particular its breadth of scope. She commented on how the lecture reflected her earlier experiences of Sir Christopher as a speaker: able to “present on any topic without preparation” while still managing to be informative and funny.
To watch the 2023 Arbitration Lecture, click here.