Debates are underway internationally on reforming the international investment protection regime. Among the concerns that have been identified as meriting reform, is the lack of coherence in how judicial decisions resolving investment disputes turn out. But, as argued by Charalampos Giannakopoulos in his recent PhD thesis, achieving coherence in law may be less of a fixed or easily identifiable destination and more of a continuous process.
How did you come to choose your research topic?
I came to my topic after discovering what seemed to me to be a somewhat paradoxical picture in international investment law. International investment law is a body of law that protects private persons when they invest abroad and permits those private persons to sue the states in which they have invested in a process known as investor-state arbitration. The paradoxical picture I saw was the following. Unlike the international trading system, investment law does not have a governing institution or a single governing instrument, it is not comprised of identical substantive rules, and does not have a single judicial body. Still, we tend to treat investment law as a system. For example, we try to find commonalities between the substantive rules and we demand coherence and predictability with respect to how judicial decisions turn out.
This, to me, was an intriguing picture which was ripe for theorisation. What scope was there for coherent and predictable judicial interpretations in such a fragmented regime? In particular, I became very interested in the concept of coherence and in what coherence may mean in a legal setting. In approaching that subject-matter I decided to focus on the legal reasoning of investment tribunals. Reason-giving is a contributor to the legitimacy of a body of law and some investment tribunals have over time been, justly, criticised for inadequate or unpersuasive reasoning in their decisions.
Can you describe your thesis and its major findings?
My thesis characterises coherence as a legal principle, whose presence is pervasive in legal argumentation and necessary for the justification of judicial decisions. My aim throughout the dissertation was to describe how considerations of coherence are entering into the interpretation of treaties by international courts and into judicial decision-making more generally.
Through this type of analysis, I find that there are two sides to coherence. One side is systemic. It encourages judges to take into account other relevant rules of international law even though they are not immediately applicable; to look back at how certain legal concepts have developed historically; and to examine and scrutinise the work of their fellow judges sitting in other tribunals in order to find guidance on how to treat matters presented before them for resolution. This is a side of coherence that points towards values like authority, certainty and predictability. It is also a side that has been fairly well examined in current literature. The other side of the principle of coherence is axiological. It points towards moral correctness and just outcomes and thus asks judges to theorise and to think more abstractly. Both sides are equally important and they complement each other. However, the axiological side has not been very much scrutinised yet, especially in the domain of the settlement of investment disputes.
Considering that coherence has this dual nature, then, to call for coherence in investment arbitration cannot simply mean uniformity or absolute certainty on how decisions will turn out. Rather, aiming for coherence embodies a struggle between ideals – perfect certainty and predictability on the one hand, perfect justice on the other. Because of this, aiming for coherence is more likely to cause disagreement rather than agreement.
Now, disagreement is not necessarily a bad thing in law. Disagreement allows the law to evolve and adapt to changing circumstances rather than remaining stagnant and ossified. The capacity to disagree must not be seen as an aberration and must not be stifled. What we must learn to do is to argue and reason in a way that acknowledges the existence of disagreement. Thus, beyond simply being a principle that invites the mingling of systemic and axiological considerations in judicial reasoning, coherence also describes a way of deliberating judicially in light of certain judicial virtues.
Can you give examples of current issues which might benefit from your understanding of coherence?
In recent years, many states have undertaken efforts to modernise their stock of investment treaties. They aim to make these treaties more balanced and leave greater scope for public regulation. At the same time, there are discussions held at the international level on whether the investment arbitration system needs reform. UNCITRAL (the UN Commission on International Trade Law) has tasked a working group with answering this question and, more importantly, with coming up with options for reform that may be available to states.
Both of these kinds of reform efforts in large part react to the fact that there is a lack of coherence, predictability or correctness in the way judicial decisions turn out. And specific reform proposals often operate under the assumption that, if only we had better substantive rules or an appellate mechanism to review awards, then we would have the coherence, the predictability and the correctness that we seek in investment law almost automatically. My research challenges those assumptions somewhat. Without wishing to downplay the need for reform in investment arbitration, which is sorely needed, my research indicates that the search for greater coherence is something that is ever present, inescapable and endemic to law itself. In other words, I would not argue against one or the other proposal for reform. But I would argue for a temperance of expectations about exactly how much certainty or predictability reform can actually effect.
What are you doing now?
At the moment I am collaborating with a university research centre in a project on the reform of investment dispute settlement.
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Charalampos Giannakopoulos defended his PhD thesis in International Law in October 2018. Visiting Professor Thomas Schultz presided the committee, which included Professor Zachary Douglas, thesis director, and Professor George Letsas, from the Faculty of Laws of University College London (UCL), UK.
Full citation of the PhD thesis:
Giannakopoulos, Charalampos. “The Principle of Coherence in International Law: A Study on Investment Arbitration.” PhD thesis, Graduate Institute of International and Development Studies, Geneva, 2018.
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Interview by Nathalie Tanner, Research Office.
Front illustration by kentoh / Shutterstock.com.