<?xml version="1.0" encoding="UTF-8"?>

<rdf:RDF
 xmlns:rdf="http://www.w3.org/1999/02/22-rdf-syntax-ns#"
 xmlns="http://purl.org/rss/1.0/"
 xmlns:content="http://purl.org/rss/1.0/modules/content/"
 xmlns:taxo="http://purl.org/rss/1.0/modules/taxonomy/"
 xmlns:dc="http://purl.org/dc/elements/1.1/"
 xmlns:syn="http://purl.org/rss/1.0/modules/syndication/"
 xmlns:admin="http://webns.net/mvcb/"
>

<channel rdf:about="http://www.opiniojuris.org/">
<title>Opinio Juris</title>
<link>http://www.opiniojuris.org/</link>
<description></description>
<dc:language>en-us</dc:language>
<dc:date>2008-07-07T11:07+00:00</dc:date>
<items>
 <rdf:Seq>
  <rdf:li rdf:resource="http://www.opiniojuris.org/posts/1215430146.shtml" />
  <rdf:li rdf:resource="http://www.opiniojuris.org/posts/1215326527.shtml" />
  <rdf:li rdf:resource="http://www.opiniojuris.org/posts/1215021624.shtml" />
  <rdf:li rdf:resource="http://www.opiniojuris.org/posts/1215019451.shtml" />
  <rdf:li rdf:resource="http://www.opiniojuris.org/posts/1214947707.shtml" />
  <rdf:li rdf:resource="http://www.opiniojuris.org/posts/1214760889.shtml" />
  <rdf:li rdf:resource="http://www.opiniojuris.org/posts/1214543775.shtml" />
  <rdf:li rdf:resource="http://www.opiniojuris.org/posts/1214423868.shtml" />
 </rdf:Seq>
</items>
</channel>

<item rdf:about="http://www.opiniojuris.org/posts/1215430146.shtml">
<title>Women in International Economic Law:  Meeting in Geneva, July 15</title>
<link>http://www.opiniojuris.org/posts/1215430146.shtml</link>
<description>Professor Tracey Epps sends along the following announcement about a new women's group for those teaching or researching in the field of international economic law:...</description>
<dc:creator>Peggy McGuinness</dc:creator>
<dc:date>2008-07-07T11:07+00:00</dc:date>
<content:encoded><![CDATA[Professor <a href="http://www.otago.ac.nz/law/staff/tracey_epps.html">Tracey Epps </a>sends along the following announcement about a new women's group for those teaching or researching in the field of international economic law:<blockquote><i>Women in International Economic Law (WIEL), a new global organization in international law, will hold its organizational meeting from 1.30 to 3 pm on Tuesday 15 July, in conjunction with the inaugural meeting of the Society of International Economic Law (SIEL) in Geneva. Jennifer Hillman, Member of the WTO Appellate Body, will speak on the past, present and future of women in international economic law and the group will discuss its objectives for the future and how it can best serve the needs of its members.<br />
<br />
The WIEL meeting will take place at the Institut de Hautes Etudes Internationales et du Developpement/Graduate Institute of International and Development Studies, 132 rue de Lausanne, in room AJF (above the coffee-bar in the park near the Villa Barton).  All those interested in women in international economic law are welcome to attend, including those who are not registered for the SIEL conference. Please contact either Susan Franck (francks@wlu.edu) or Tracey Epps (tracey.epps@otago.ac.nz) for any further information.</blockquote></i><br />
]]></content:encoded>
</item>

<item rdf:about="http://www.opiniojuris.org/posts/1215326527.shtml">
<title>Americans Are Fat -- and So Is Almost Everyone Else</title>
<link>http://www.opiniojuris.org/posts/1215326527.shtml</link>
<description>I notice it every time I'm in the States &amp;mdash; Americans seem really, really fat. And so they are: according to recent Calorie Lab statistics, more than 50% of the...</description>
<dc:creator>Kevin Jon Heller</dc:creator>
<dc:date>2008-07-06T06:07+00:00</dc:date>
<content:encoded><![CDATA[I notice it every time I'm in the States &mdash; Americans seem really, really fat.  And so they are: according to recent <a href="http://calorielab.com/news/2008/07/02/fattest-states-2008/">Calorie Lab statistics</a>, <i>more than 50% of the people in every state in the Union</i> are either clinically obese (BMI 30%+) or clinically overweight (BMI 25%+).  Mississippians are the fattest, more than 66% of the population, while Coloradans (which include me) are the "slimmest," at "only" 55%.  <br />
<br />
Here's the map of obesity rates:<br />
<br />
<center><a href="/files/kevin-fattest-states-2008-468.gif"><img src="/files/kevin-fattest-states-2008-468-small.gif" width="220" height="172"  alt=""></a></center><br />
To be fair, being obese or overweight is <a href="http://www.world-heart-federation.org/press/facts-figures/obesity/">an international problem</a>.  Worldwide, more than 1.6 billion adults are overweight and at least 400 million are obese.  Europe is particularly fat: the obese or overweight rate is 60% in Scotland, 58% in England, 53% in Austria, 51% in Germany, 49% in Poland and Hungary, and 48% in Greece, Ireland, and Portugal.  The Swedes, Dutch, Italians, Belgians, and Romanians are the slimmest in Europe, all coming in at less than 39%.  But those countries pale in comparison to China and Japan, whose obesity rates are less than 5%.  <br />
<br />
Here is a nice visual representation of obesity rates in OECD countries:<br />
<br />
<center><a href="/files/kevin-2007-05-06--world-fatness.png"><img src="/files/kevin-2007-05-06--world-fatness-small.png" width="220" height="177"  alt=""></a></center><br />
I have no profound point to make, other than to note that McDonalds, Burger King, KFC, and Pizza Hut are no less WMDs than anthrax and sarin.  As the World Heart Federation notes with characteristic understatement, worldwide obesity rates have risen because "diets have moved from being plant-based to high-fat, energy-dense animal-based diets."  Kudos to Mayor Bloomberg for <a href="http://www.msnbc.msn.com/id/16051436/">banning trans fats</a> in New York City!<br />
<br />
I would, however, kill for a Taco Bell in Auckland...<br />
<br />
P.S.: I was very surprised that 21% of Kiwis are obese, given how active and outdoorsy they tend to be.  Sadly, I think it's very much a racial thing, reflecting the sizable (pun not intended) Pacific Islander population in New Zealand.  The most obese nations in the world are in the Western Pacific: in Nauru, 80% of men and 79% of women are obese; in Tonga, it's 47% and 70%; and in Samoa, it's 33% and 63%.]]></content:encoded>
</item>

<item rdf:about="http://www.opiniojuris.org/posts/1215021624.shtml">
<title>A Response to David Zaring</title>
<link>http://www.opiniojuris.org/posts/1215021624.shtml</link>
<description>First, I would like to thank David Zaring again for his comments on my essay: Empiricism and International Law: Insights for Investment Treaty Dispute Resolution. I was deeply humbled...</description>
<dc:creator>Susan Franck</dc:creator>
<dc:date>2008-07-03T15:07+00:00</dc:date>
<content:encoded><![CDATA[First, I would like to thank <a href="http://lgst.wharton.upenn.edu/zaring/">David Zaring</a> again for his comments on my essay: <a href="http://scs.student.virginia.edu/~vjil/PDF/48_768-815.pdf"><i>Empiricism and International Law: Insights for Investment Treaty Dispute Resolution</i></a>. I was deeply humbled to read David’s thoughts about both the utility of the essay and the direction of my current research.  David’s comments, however, raise a variety of issues worthy of a bit deeper exploration.<br />
<br />
I wholeheartedly agree that empirical work in international law is decidedly not déclassé.  As a proud alumna of the <a href="http://www.law.umn.edu/">University of Minnesota Law School</a>, I had the privilege of taking classes with <a href="http://query.nytimes.com/gst/fullpage.html?res=9C0DE7DD1239F932A05750C0A9659C8B63">Bob Hudec</a>. I have profound respect for Hudec’s empirical exploration of international trade dispute settlement system and have been grateful to see others continue the empirical exploration of international economic law in the trade context.  Perhaps more selfishly, as my research has developed, I have found myself wishing that Hudec was still with us so that I could benefit from his methodological insights related to the analysis of international economic dispute resolution.  I would nevertheless hope that Hudec would have been pleased the development of empirical methodologies to areas of international law outside of the trade context.  The work of junior scholars such as <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=311359">Oona Hathaway</a>, <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=956368">Elena Baylis</a>, <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1023923">Bill Burke-White</a>, and <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=934108">Melissa Waters</a> spring immediately to mind although there are certainly others engaging in research. In the meantime, I will look forward to hearing the <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1144724">remarks</a> of <a href="http://law.wisc.edu/profiles/index.php?iEmployeeID=221">David Trubek</a> and my co-panelist <a href="http://www.law.syr.edu/faculty/facultymember.aspx?fac=148">Juscelino Colares</a> at the forthcoming <a href="http://www.sielnet.org/Default.aspx?pageId=108611"><i>Society of International Economic Law</i></a> as they both have critical observations about Hudec’s legacy to empirical assessment of international economic law phenomena.  <br />
<br />
David also makes an interesting point about how research in international investment law might evolve in the future.  I am sympathetic to the reference to <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=913336">Wright & Miller’s</a> recent exploration of <a href="http://writing.colostate.edu/guides/research/content/">content analyses</a> and the value of using rigorous social science methodology to study the content of judicial decisions.  No doubt this literature, and its underlying methodological rigor, will aid the evolution of methodological approaches involving the analysis of investment treaty arbitration awards.  As the essay also suggests, there are other critical methodological approaches that could be likewise as this area evolves.  For example, provided that scholars are sufficiently transparent in the description and analysis of their quantitative research, meta-analysis may be possible.  As discussed eloquently in <a href="http://www.law.syr.edu/faculty/facultymember.aspx?fac=150">Jeremy Blumenthal</a>’s article <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=910962"><i>Meta-Analysis: A Primer for Legal Scholars</i></a>, meta-analysis can synthesize empirical analysis across studies in order to summarize the research and identify variables influencing the findings of particular research.  These additional methodological approaches only scratch the surface of potential ways to develop international law empiricism.  One might even imagine – much like social science counterparts – the development of research methodologists, who are dedicated to the exploration and improvement of empirical methodologies, as a type of international law sub-specialty. But my suspicion is these last two evolutionary advances may be years in the offing.  <br />
<br />
Finally, in providing the cautionary observation about the need for training, David observes that inter-disciplinary collaboration can help bridge the methodological divide by providing much needed skills in this regard.  I decidedly agree with David about the value that collaboration brings on the methodological side and offer two counter-points.<br />
<br />
First, there are also practical benefits to be garnered from collaboration beyond methodological insights.  Chief among these benefits is: sleep.  Empirical research, while rewarding, can take time.  The development of datasets can be labor intensive – even with the help of able research assistants (and I have been profoundly blessed in that department with the assistance of Melanie Neely and Jenna Perkins).  Working in collaboration with others means that some of the most laborious aspects of empirical research – namely data collection – can be shared.  In other words, it means that you are less likely to be sleep deprived and able to work more effectively.  (And yes, there is empirical literature in related contexts to <a href="http://www.neurology.org/cgi/content/full/64/7/E25">back up this claim</a>.)  Sharing of such tasks may also mean, provided proper research protocols related to inter-coder reliability are followed, that the reliability of data collection may be enhanced.  It also means that research methodology choices can be considered with a view to considering multiple perspectives; and as none of us is perfect, the use of group-think to develop research and analysis can be invaluable.  Collaboration also creates research efficiencies.  For example, those with an expertise in or aptitude for the creation of graphs, tables and charts can develop them readily.  I may, however, say this given my own graduate coursework at the <a href="http://psycweb.unl.edu/psylaw/">University of Nebraska Law and Psychology JD/PhD program</a> with <a href="http://psycweb.unl.edu/psypage/faculty.asp?id=21">Cal Garbin</a> on multivariate research design and data analysis (see <a href="http://psych.unl.edu/psycrs/941/index.html">here</a> and <a href="http://psych.unl.edu/psycrs/942/index.html">here</a>) and the learning curve I have experienced in the creation of graphs during my work for Cal this summer.  <br />
<br />
The second counterpoint suggests that there may be a gap to fill within legal education.  More particularly, while there are benefits to collaborating in an inter-disciplinary manner, one wonders whether such collaboration may be even more fruitful if legal scholars had access – for example in law school – to methodological classes to provide basic training.  There are certainly useful programs for professors such as the Northwestern/WashU “<a href="http://www.law.northwestern.edu/faculty/conferences/empiricalworkshop.html">bootcamp</a>” or programs for quantitative methods at the <a href="http://www.icpsr.umich.edu/sumprog/">University of Michigan</a>, <a href="http://www.essex.ac.uk/methods">University of Essex</a> or the <a href="http://www.essex.ac.uk/ecpr/events/summerschools/ljubljana/index.aspx">European Consortium for Political Research’s program</a> at the University of Ljubljana.  Nevertheless, the <a href="http://scs.student.virginia.edu/~vjil/PDF/48_768-815.pdf">essay</a> explores the unique benefit of systematically providing the next generation of research assistants, lawyers and law professors with training in the law school context. Some law schools, such as <a href="http://www.law.berkeley.edu/courses/coursePage.php?cID=6099&termCode=B&termYear=2008">Berkeley</a>, <a href="http://support.law.cornell.edu/students/forms/current_Course_Descriptions.pdf">Cornell</a>, <a href="http://www.law.harvard.edu/academics/courses/2008-09/?id=5560">Harvard</a>, <a href="http://lawprofessors.typepad.com/law_econ/2006/09/empirical_metho.html">Illinois</a>, <a href="http://www.law.leiden.edu/general/img/Course%20outline%20Empirical%20Researc">Leiden University</a>, <a href="http://www.law.northwestern.edu/curriculum/coursecatalog/details.cfm?CourseID=LAWSTUDY015879">Northwestern</a>, <a href="http://www.law.upenn.edu/cf/registrar/descriptions/alphabetical.cfm">Penn</a>, <a href="http://www.law.stanford.edu/program/courses/details/366/Statistical%20Inference%20and%20Empirical%20Research/">Stanford</a>, <a href="http://www.law.uchicago.edu/courses/coursedetails.html?CourseNumber=73302&SectionNumber=1&Quarter=3&Year=2008">University of Chicago</a>, <a href="http://law.vanderbilt.edu/academics/curriculum/elective-courses/empirical-methods-for-legal-analysis/index.aspx">Vanderbilt</a>, <a href="http://law.wustl.edu/Academics/index.asp?id=180#internationalcomparativeandforeignlaw">Washington University</a>, and <a href="http://ylsinfo.law.yale.edu/wsw/prereg/course_overview.asp?Term=Spring">Yale</a> have classes related to the empirical methods and the law (and apologies for the lack of a complete list in this regard for other law schools with separate courses focused on empirical methods). A casebook with an accessible teacher’s manual, such as the one being developed by faculty at the University of Illinois, goes a long way to filling this particular gap in U.S. legal training.  I understand Empirical Methods in Law (Aspen, forthcoming), written by <a href="http://www.law.uiuc.edu/faculty/directory/RobertLawless">Bob Lawless</a>, <a href="http://www.law.uiuc.edu/faculty/directory/JenniferRobbennolt">Jennifer Robbennolt</a> and <a href="http://www.law.uiuc.edu/faculty/directory/ThomasUlen">Tom Ulen</a>, should be available for Fall 2009; and based upon the draft chapters I have seen, I am looking forward to getting my copy.  <br />
<br />
Ultimately, if we are willing to take on the challenge, we are at the first step of a journey of empirical assessment of investment treaty dispute resolution.  There are inevitably places where we can grow and develop in collaboration or consultation with others.  And that, at least in my view, is certainly a worthy undertaking.<br />
]]></content:encoded>
</item>

<item rdf:about="http://www.opiniojuris.org/posts/1215019451.shtml">
<title>Empirical Research And International Economic Law: A Comment on Susan Franck’s Essay</title>
<link>http://www.opiniojuris.org/posts/1215019451.shtml</link>
<description>[David Zaring is Assistant Professor of Legal Studies and Business Ethics, Wharton School, University of Pennsylvania]...</description>
<dc:creator>David Zaring</dc:creator>
<dc:date>2008-07-03T12:07+00:00</dc:date>
<content:encoded><![CDATA[[<a href="http://lgst.wharton.upenn.edu/zaring/">David Zaring</a> is Assistant Professor of Legal Studies and Business Ethics, Wharton School, University of Pennsylvania]<br />
<br />
<a href="http://scs.student.virginia.edu/~vjil/PDF/48_768-815.pdf">Susan Franck’s essay</a> makes the case for more empirical research in international economic law; a project that she has pursued – I might venture to say that she owns an important part of the field, given the unique and comprehensive data on investment arbitrations that she has collected and continues to analyze – in her other work.  It is worth noting both how precise and how important Susan’s recommendations are.  First, when I think about empirical research in international economic relations more generally (and here I should clear my throat apologetically – I’m not an empirical scholar except in a rather mild sense, but primarily a reader of some of that work), I think of the big picture claims made by some applied economists – Andrew Rose’s claim that <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1009445">membership in the WTO doesn’t lead to growth</a>, for example, and the endless debates over whether NAFTA or bilateral investment treaties have been good or bad for their signatories. Susan cites a number of examples of these in her essay.<br />
<br />
What is underdeveloped is empirical research on the law part of international economic law, specifically the litigation part.  There is so much we don’t know about what happens when investments disputes are subject to arbitrations, but that hasn’t stopped people like Bolivia’s president Evo Morales making consequential decisions based on their priors about what the process will mean.<br />
<br />
So that’s why I say Susan’s empirical claims are precise – she thinks we need a new perspective on what happens in actual litigation, which is arguably both the signal offer of an investment or trade treaty and its most lawyerly manifestation.  And it makes sense to recommend that assumptions like those of Morales be tested.<br />
<br />
I will also commend her essay for giving us a bit of an intellectual history of the place of empiricism in international law ... which I think she would say comes largely from the increasing empiricism of international relations scholarship and the increasing popularity of ELS.  She also offers outline of one way to pursue empirics in international legal research, which is all to the good.<br />
<br />
This is already a long post, but I’d like to do three more things in it: 1. Note that there increasingly is empiricism in international legal scholarship, 2. Urge a bit of caution on the part of would-be empiricists, and 3. Speculate about some empirical research that might be particularly worth reading in the future.<br />
<br />
1. The sort of work that Susan urges is, I agree, unnecessarily rare, but it is not déclassé. It has a worthy past and increasingly vibrant future.  Robert Hudec, after all, kept track of WTO decisions, and Simon Lester and Kara Leitner <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=915561">continue to build</a> on his work. John Yoo and Eric Posner have made empirical claims about effective international tribunals that occasioned a <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=670821">useful response</a> by Anne-Marie Slaughter and Larry Helfer. And so on.<br />
<br />
2. Cutting edge empirical work is technical – increasingly so – and takes training.  Disciplinary barriers are often higher than you think.  Pick up a copy of the American Political Science Review and Quarterly Journal of Economics and give them a casual read if you think you might disagree.  I am, as I have said, no empiricist, but my sense is that legal scholars are often best-served by co-authoring if they feel the urge to do empirical work and by training themselves to read empirical papers (no easy task!) as a prelude to pursuing empirical work.<br />
<br />
3. A couple of predictions about the future. <a href="http://www.theconglomerate.org/2008/06/you-can-do-an-e.html">Careful event studies</a> might be useful evidence in determining whether and which international legal institutions matter. Ron Wright and Marc Miller have noted the growing <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=913336">prevalence of content analyses</a> in legal research, and, done well, it seems to me that they are a natural complement to doctrinal work (it’s often hard getting enough observations to make that useful, though).<br />
]]></content:encoded>
</item>

<item rdf:about="http://www.opiniojuris.org/posts/1214947707.shtml">
<title>Empiricism and International Law: Insights for Investment Treaty Dispute Resolution</title>
<link>http://www.opiniojuris.org/posts/1214947707.shtml</link>
<description>[Professor Susan Franck is Associate Professor of Law, Washington &amp; Lee University School of Law. Please find her SSRN author page here.]...</description>
<dc:creator>Susan Franck</dc:creator>
<dc:date>2008-07-03T11:07+00:00</dc:date>
<content:encoded><![CDATA[<a href=""></a>[<a href="http://law.wlu.edu/faculty/profiledetail.asp?id=267">Professor Susan Franck</a> is Associate Professor of Law, Washington & Lee University School of Law. Please find her SSRN author page <a href="http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=518280">here</a>.]<br />
<br />
First, I want to take the opportunity to thank the editors of the <a href="http://scs.student.virginia.edu/~vjil/"><i>Virginia Journal of International Law</i></a> and Opinio Juris for an opportunity to discuss my recent essay, <a href="http://scs.student.virginia.edu/~vjil/PDF/48_768-815.pdf"><i>Empiricism and International Law: Insights for Investment Treaty Dispute Resolution</i></a>.  I would also like to thank <a href="http://lgst.wharton.upenn.edu/zaring/">David Zaring</a> in advance for commenting on the essay.  I look forward to a thoughtful and provocative discussion.  <br />
<br />
This essay develops ideas implicit in the work of certain international law, international relations and empirical legal scholars - namely that there are areas of international law deserving of and ripe for empirical analysis.  More particularly, the use of empirical methodologies can create new facts, offer different perspectives and promote a more nuanced analysis of international law phenomena. <br />
<br />
The potential benefits of such an epistemological approach are easily understood in the context of international investment law and dispute resolution.  <br />
<br />
The President of Bolivia, Evo Morales, has suggested that the World Bank's International Centre for Settlement of Investment Disputes (ICSID) is an international organization where <a href="http://www.funsolon.org/publicaciones/TUNUPA33CIADI.pdf">no country, except perhaps the US, will ever win</a>.  The International Herald Tribune quotes Morales as saying <a href="http://www.iht.com/articles/ap/2007/04/30/america/LA-GEN-Venezuela-Leftist-Alternative.php">“Governments in Latin America and I think all over the world never win the cases. The transnationals always win”</a>. Although this assertion was used to justify <a href="http://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=OpenPage&PageType=AnnouncementsFrame&FromPage=NewsReleases&pageName=Announcement3">Bolivia's withdrawal from ICSID</a>, <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=969257">quantitative data</a> flatly contradicts Morales’ allegation.  <br />
<br />
Meanwhile, a March 2008 story in the <a href="http://us.ft.com/ftgateway/superpage.ft?news_id=fto031120082246383316"><i>Financial Times</i></a>, referred to investment treaty arbitration awards involving: (1) "hundreds of millions of dollars in compensation," (2) a claim by Mobil for "billions of dollars," and (3) Bolivia's "loss" in a case against Bechtel.  Empirical information aids the contextualization of these claims.  It is useful to consider that: (1) the average value of awards in one study was in the order of US$10 million, (2) the difference between amounts claimed and awarded was in the order of US$333 million, and (3) Bolivia's "loss" at the jurisdictional phase actually resulted in a settlement where the investors dropped their claims and were paid nothing. Meanwhile, issues related to international economic law – particularly trade and investment – are becoming a focal point for politicians and the public.  <br />
<br />
Against this backdrop, this essay does three things to consider the potential integration of empirical methodologies into the analysis of international investment law and dispute resolution.  <br />
<br />
First, it explores the historical relationship with international law and empirical methods.  Acknowledging the re-integration of international relations and international law as well as the increased appreciation for empirical legal studies in domestic law contexts, the essay suggests that the mutual interest in empirical methodologies - broadly defined - could be developed further.  For example, this might involve international lawyers drawing upon the methodological debates and insights from the empirical legal scholars and adapting them to analyze international law phenomenon; likewise, empirical legal scholars can gain new areas of research that may provide a useful counterpoint to study of domestic (whether in the U.S. or broad) legal phenomenon.  <br />
<br />
Second, the essay adopts <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=292100">Professor Korobkin's definition of empiricism</a> and argues for a broad understanding of empirical methodologies in international investment law.  The essay posits that quantitative, qualitative and mixed methods may all be usefully applied to the analysis of investment treaty dispute resolution and encourages debate on how different methodologies might be suitable for different research questions.<br />
<br />
Third, the essay argues that the benefits of using empirical methodologies outweigh the costs and suggests five steps for developing an empirically infused research agenda in investment treaty dispute resolution.  These steps may include, but not be limited to: (1) building research capacity, (2) obtaining data, (3) designing research methodology, (4) conducting research, analyzing the results, and contextualizing the findings properly, and (5) disseminating the results to stakeholders for consideration.   <br />
<br />
As befits an essay, it concludes on a note designed to spark conversation as much as it is to articulate a particular position.  In particular, the essay argues that while empirical methodologies may not work for every research area or question, the use empirical methodologies can infuse international investment law with information to inform normative choices.  Particularly for investment dispute resolution, systematically gathered and properly analyzed empirical data can correct misperceptions about existing dispute resolution processes, permit considered analysis of legal issues affecting the public, and could – for example – facilitate informed decisions about the negotiation and revision of investment treaties.  <br />
<br />
Particularly in the <a href="http://worldtradelaw.typepad.com/ielpblog/2008/06/the-global-trad.html">United States</a>, Latin American countries such as <a href="http://www.latinbusinesschronicle.com/app/article.aspx?id=2129">Ecuador</a> and even in <a href="http://worldtradelaw.typepad.com/ielpblog/2008/05/expropriation.html">Norway</a>, there is a hot political dialogue about the proper terms of investment treaties.  The issue is sufficiently compelling that the American Society of International Law’s <a href="http://www.asil.org/economiclaw/index.html">International Economic Law Interest Group</a> is going to be hosting a <a href="http://worldtradelaw.typepad.com/ielpblog/2008/06/asil-ielg-confe.html">conference in November 2008</a> to discuss the intersection between the political dimensions of the debates about trade and investment.  (A previous Opinio Juris post is <a href="http://www.opiniojuris.org/posts/1214423868.shtml">here</a>, and the call for papers is <a href="http://www.asil.org/pdfs/ieligcallforpapers.pdf">here</a>.) Given this context, there is particular utility in examining what opportunities there might be to infuse scholarship with empirical methodologies to generate information that can form part of a dialogue to promote a more informed discourse on international investment law. <br />
<br />
It is too early to know whether the approach I recommend will provide utility in the long run.  There are inevitable challenges and practicalities that will be difficult to ignore that we might discuss here in greater detail.  Nevertheless, I do believe that there is tangible, potentially useful research that can be done with relative inconvenience in the short term.  These small, foundational projects can form the basis for replicating, developing and converging research in the hopes of ultimately creating a more dynamic and informed tapestry of international investment law.  And after all, if we do not at least try, we will never know what might have been.<br />
<br />
]]></content:encoded>
</item>

<item rdf:about="http://www.opiniojuris.org/posts/1214760889.shtml">
<title>There Will Be Blood</title>
<link>http://www.opiniojuris.org/posts/1214760889.shtml</link>
<description>The NY Times Week in Review has an article written by Graham Bowley on the effect of recent attacks by Movement for the Emancipation of the Niger Delta (MEND) on...</description>
<dc:creator>Chris Borgen</dc:creator>
<dc:date>2008-06-29T17:06+00:00</dc:date>
<content:encoded><![CDATA[The NY Times Week in Review has <a href="http://www.nytimes.com/2008/06/29/weekinreview/29bowley.html?ref=weekinreview">an article written by Graham Bowley </a>on the effect of recent attacks by  Movement for the Emancipation of the Niger Delta (MEND) on Nigeria’s oil infrastructure and the effects of these attacks on world oil prices. The piece begins:<blockquote><i>When armed rebels from the Movement for the Emancipation of the Niger Delta attacked an enormous oil facility 75 miles off the swampy West African coast on June 19, traveling hours by speedboat under cover of darkness and kidnapping an oil worker, their brazen assault underlined the perhaps underappreciated dependence of the United States — and the world — on oil from Nigeria.<br />
<br />
Three days afterward, Nigerian officials said at a hastily arranged global energy summit in Jidda, Saudi Arabia, that recent attacks had cut Nigeria’s oil production to its lowest level in nearly two decades, giving oil markets the jitters and helping to send prices higher…<br />
<br />
“We always focus on the Persian Gulf but this is one of the key oil security issues in the world today,” said Daniel Yergin, one of the nation’s best-known energy experts and chairman of Cambridge Energy Research Associates, a consulting firm. “It’s tied up with Nigerian politics, regional and national battles for power, and criminality.” When Mr. Yergin spoke to lawmakers at a hearing in Congress last week, he was asked what would most help stabilize world markets. “Helping bring peace to the Niger Delta would be a major contribution,” he responded.</i></blockquote>The Times article continues that responding to the situation in Nigeria will need both a sound development policy and a counter-insurgency strategy:<blockquote><i>According to J. Stephen Morrison, director of the Africa program at the Center for Strategic and International Studies in Washington, the government led by Nigeria’s new president, Umaru Yar’Adua, must break with decades of neglect and pay attention to the troubles of the southern delta region by promoting development but also cracking down on the rebels and “demonstrating that these guys cannot operate with impunity.”<br />
<br />
He’s not very optimistic, however. “When you look at the delta, the overwhelming picture is that the situation has very little promise of being fixed,” he said.</i></blockquote>While development policy is always a complex issue, the “operate with impunity” part is also a problem, as MEND has started attacking not just oil pipelines, but offshore oil platforms, as well. MEND even issued <a href="http://www.cnn.com/2008/WORLD/africa/06/22/nigeria.rebels/index.html">a press release </a>that states, "The location for today's attack was deliberately chosen to remove any notion that off-shore oil exploration is far from our reach." <a href="http://www.theoildrum.com/node/4196">Jeff Vail </a>of <i>The Oil Drum</i> explains that this is especially significant as 90% of Nigeria’s oil growth is expected to be <i>via</i> new offshore platforms. Which now seem vulnerable to attack.<br />
<br />
John Robb, who writes extensively on guerilla-based “fourth generation warfare” is concerned that <a href="http://www.theoildrum.com/node/4170#more">destabilization from infrastructure attacks will worsen</a>:<blockquote><i>So, given production limitations and strong/concentrated demand, even small disruptions by guerrilla groups on light sweet crude production is likely to have a direct influence on global oil pricing (in contrast, disruptions aimed at heavy crude production should have little impact on global pricing). Further, there are already active groups in many of the most critical production areas.<br />
<br />
Fortunately, from the demonstrated behavior of these groups it doesn't appear that guerrilla/terrorist groups have fully grasped their potential market power with small attacks (despite aspirational pronouncements from al Qaeda and large scale attacks in 2005/2006). Once they do, as bad as disruption is today, it could get MUCH worse.<br />
<br />
Why? A direct connection to scalable profits...<br />
<br />
As we saw with e-mail spam/phishing, even the faintest whiff of profits can turn a loose collection of individuals/groups into a torrential crime-fueled marketplace generated billions and attracting tens of thousands of participants. Are we about to see the same occur with oil?</i></blockquote>For example, consider Columbia. <a href="http://globalguerrillas.typepad.com/globalguerrillas/2008/06/global-oil-unde.html#comments">John Robb notes that</a><blockquote><i>Disruption isn't limited to Nigeria. A remote control bomb by the FARC on Occidental Petroleum's pipeline in Colombia just knocked out 100,000 barrels a day. It's also interesting to note how irrelevant the US military/national security system has become in regards to global energy security. The entire paradigm of warfare has changed but the $1 Trillion behemoth has barely budged.</i></blockquote>While I doubt that <a href="http://www.canada.com/vancouversun/news/story.html?id=2eeece50-285f-4c4b-bb37-2d053d04d4e8&p=1">the end is nigh</a>, the situation is obviously serious and it won’t be solved by a combination of a dithering domestic energy policy and a foreign policy of “assisted” regime-change. So, for now, only one thing is certain…<br />
<br />
]]></content:encoded>
</item>

<item rdf:about="http://www.opiniojuris.org/posts/1214543775.shtml">
<title>An Important Maori Land Settlement -- But Where's the Treaty Itself?</title>
<link>http://www.opiniojuris.org/posts/1214543775.shtml</link>
<description>The BBC reports that the New Zealand government and seven Maori tribes have entered into an historic agreement concerning Maori ownership of...</description>
<dc:creator>Kevin Jon Heller</dc:creator>
<dc:date>2008-06-27T06:06+00:00</dc:date>
<content:encoded><![CDATA[<img src="/files/kevin-treaty_of_waitangi.jpg" width="134" height="250" style="float: left; margin: 4px;" alt="">The BBC reports that the New Zealand government and seven Maori tribes have entered into <a href="http://news.bbc.co.uk/2/hi/asia-pacific/7472653.stm">an historic agreement</a> concerning Maori ownership of a number of forests in the North Island, where I live:<blockquote><i>The NZ$420m ($319m) agreement transfers ownership of nine forests - covering 435,000 acres (176,000 hectares) of land - in the central North Island.<br />
<br />
Hundreds of Maori, some in traditional dress, thronged parliament to witness the signing of the accord.<br />
<br />
"It's a historic journey we are on," Prime Minister Helen Clark said.<br />
<br />
"We came into politics to address injustice and seek reconciliation. Thank you for walking that road with us on this historic day," she added, according to AP news agency.<br />
<br />
The settlement - the largest single deal between the government and Maori tribes - seeks to address grievances dating back to the 1840 Treaty of Waitangi.<br />
<br />
The treaty guaranteed the indigenous Maori people use of their land and resources in return for ceding sovereignty to the British crown. But land seizures and ownership breaches followed.<br />
<br />
The forests signed over are mainly large commercial pine plantations, generating about NZ$13m a year in rents.<br />
<br />
The settlement also hands over rents that have accumulated on the land since 1989.<br />
<br />
Between them, the seven tribes or iwi include more than 100,000 members. They will manage the land collectively, setting up a holding company structure and forestry management structure.</i></blockquote>The agreement, known as the "Treelords" deal &mdash; echoing the very controversial 1992 <a href="http://www.hartford-hwp.com/archives/24/055.html">Sealords deal</a>, which ultimately led the New Zealand Parliament to extinguish all Maori claims to commercial fishing rights &mdash; is indeed historic.  I would take issue, though, with the article's claim that the Treaty of Waitangi "guaranteed the indigenous Maori people use of their land and resources in return for ceding sovereignty to the British crown."  That interpretation is consistent with the English version of the Treaty &mdash; but not with the Maori version.  (The two versions were drafted separately, and the English version is not a translation of the Maori, even though the Maori version was drafted first.)  <br />
<br />
Here is Article 1 of the Treaty in English:<blockquote><i>The Chiefs of the Confederation of the United Tribes of New Zealand and the separate and independent Chiefs who have not become members of the Confederation cede to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of <b>Sovereignty</b> which the said Confederation or Individual Chiefs respectively exercise or possess, or may be supposed to exercise or to possess over their respective Territories as the sole Sovereigns thereof.</i></blockquote>And here is Article 1 in Maori:<blockquote><i>Ko nga Rangatira o te Wakaminenga me nga Rangatira katoa hoki ki hai i uru ki taua wakaminenga ka tuku rawa atu ki te Kuini o Ingarani ake tonu atu-te <b>Kawanatanga </b>katoa o o ratou wenua.</i></blockquote>I have bolded the operative terms.  The problem is that <i>kawanatanga </i>does not mean "sovereignty"; it means "governance" &mdash; a much weaker term.  Indeed, it is clear that the Maori did not intend to cede anything resembling sovereignty to the Queen, given that the Maori version of the Treaty does not use the Maori word for "sovereignty," <i>kingitanga</i>, or even the Maori word for "independence," <i>rangatiritanga</i>.<br />
<br />
Just as important, the British had to have known that the Maori did not intend to cede sovereignty to the Queen.  In 1835, the British and the Maori had signed the <a href="http://www.nzhistory.net.nz/politics/treaty/background-to-the-treaty/declaration-of-independence">Declaration of Independence</a>, in which the British guaranteed that the Maori chiefs would maintain sovereignty over their land.  The Declaration made use of all three of the words that are at the heart of the dispute over the Treaty, with the British translating <i>rangatiritanga </i>as "independence," <i>kingitanga </i>as "sovereign power and authority," and <i>kawanatanga </i>as "functions of government."  How then could the British have honestly believed a mere five years later &mdash; with many of the same British officials present at the signing of both documents &mdash; that Article 1's use of the term <i>kawanatanga</i>, as opposed to <i>kingitanga</i>, meant that the Maori were giving up their sovereignty?<br />
<br />
Regardless, the question is now moot &mdash; New Zealand courts have long since given up trying to determine the "true" meaning of the Treaty.  Now they &mdash; and the Waitangi Tribunal, which makes recommendations to the government concerning Maori grievances &mdash; simply apply the so-called "Treaty Principles":<blockquote><i><b>The principle of government or the kawanatanga principle</b> <br />
<br />
Article 1 gives expression to the right of the Crown to make laws and its obligation to govern in accordance with constitutional process. This sovereignty is qualified by the promise to accord the Māori interests specified in article 2 an appropriate priority. This principle describes the balance between articles 1 and 2: the exchange of sovereignty by the Māori people for the protection of the Crown. It was emphasised in the context of this principle that ‘the Government has the right to govern and make laws’.<br />
<br />
<b>The principle of self-management (the rangatiratanga principle) </b><br />
<br />
Article 2 guarantees to Māori hapū (tribes) the control and enjoyment of those resources and taonga that it is their wish to retain. The preservation of a resource base, restoration of tribal self-management, and the active protection of taonga, both material and cultural, are necessary elements of the Crown’s policy of recognising rangatiratanga. The Government also recognised the Court of Appeal’s description of active protection, but identified the key concept of this principle as a right for iwi to organise as iwi and, under the law, to control the resources they own.<br />
<br />
<b>The principle of equality </b><br />
<br />
Article 3 constitutes a guarantee of legal equality between Māori and other citizens of New Zealand. This means that all New Zealand citizens are equal before the law. Furthermore, the common law system is selected by the Treaty as the basis for that equality, although human rights accepted under international law are also incorporated. Article 3 has an important social significance in the implicit assurance that social rights would be enjoyed equally by Māori with all New Zealand citizens of whatever origin. Special measures to attain that equal enjoyment of social benefits are allowed by international law.<br />
<br />
<b>The principle of reasonable cooperation </b><br />
<br />
The Treaty is regarded by the Crown as establishing a fair basis for two peoples in one country. Duality and unity are both significant. Duality implies distinctive cultural development while unity implies common purpose and community. The relationship between community and distinctive development is governed by the requirement of cooperation, which is an obligation placed on both parties by the Treaty. Reasonable cooperation can only take place if there consultation on major issues of common concern and if good faith, balance, and common sense are shown on all sides. The outcome of reasonable cooperation will be partnership.<br />
<br />
<b>The principle of redress</b> <br />
<br />
The Crown accepts a responsibility to provide a process for the resolution of grievances arising from the Treaty. This process may involve courts, the Waitangi Tribunal, or direct negotiation. The provision of redress, where entitlement is established, must take account of its practical impact and of the need to avoid the creation of fresh injustice. If the Crown demonstrates commitment to this process of redress, it will expect reconciliation to result.</i></blockquote>The Treaty Principles are important, and they do occasionally protect Maori interests.  But their importance cannot obscure the fact that the Treaty itself still has no formal legal status in New Zealand, making Maori interests subject to the whims of Parliament.  And that's no accident: taking the Treaty seriously would mean taking the Maori version of the Treaty seriously &mdash; and taking the Maori version seriously would mean that deals like Treelord would be the very tiny tip of a very large iceberg.]]></content:encoded>
</item>

<item rdf:about="http://www.opiniojuris.org/posts/1214423868.shtml">
<title>International Economic Law Interest Group Call for Papers</title>
<link>http://www.opiniojuris.org/posts/1214423868.shtml</link>
<description>Susan Franck forwards the following call for papers for what looks to be an interesting and well-timed conference:...</description>
<dc:creator>Peggy McGuinness</dc:creator>
<dc:date>2008-06-25T19:06+00:00</dc:date>
<content:encoded><![CDATA[Susan Franck forwards the following call for papers for what looks to be an interesting and well-timed conference:<blockquote><i>The ASIL's International Economic Law Interest Group will hold its biennial conference in Washington this year just after the U.S. Presidential election, on the timely theme of "The Politics of International Economic Law: The Next Four Years."  The conference committee has just issued its Call for Papers <a href="http://www.asil.org/pdfs/ieligcallforpapers.pdf">here</a>. Paper proposals are due by July 20.  The Call supplies a wide range of suggested topics, but it is open for "politics-of" topics in any area of international economic law, not just trade.  The conference will take place at George Washington University Law School in downtown Washington, on Friday and Saturday November 14-15, in a month when new vistas will open, no matter which candidate wins.</i><br />
</blockquote>]]></content:encoded>
</item>

</rdf:RDF>