An article co-authored by Associate Professor Esmé Shirlow proposes a methodology to guide a more structured identification and use of negotiating records in treaty interpretation.
Associate Professor Esme Shirlow
Associate Professor
PhD (King's College London), LL.M.(Hons) (Cambridge), LL.B. (Hons.) (ANU), BA (ANU), GDLP (ANU)
ANU College of Law, Fellows Rd, Acton ACT 2600
ANU College of Law, 5 Fellows Rd, Acton ACT 2600
Research Theme
Research Centre
Biography
Esmé Shirlow teaches and researches in the fields of public international law, international dispute settlement, and international investment law and arbitration. Esmé is admitted as a Solicitor in the Australian Capital Territory and trained as a civil and commercial mediator in England. She maintains a practice in the field of international law, and has been involved as an advisor to parties to investment treaty claims and in proceedings before the International Court of Justice, and has served as an assistant to a number of investment treaty tribunals. Prior to joining the ANU, she worked in the Australian Government’s Office of International Law.
Esmé completed her PhD as a Dickson Poon Scholar at King's College London, for which she was awarded the King's Elsevier Outstanding PhD Thesis Prize. She completed her LL.M. at the University of Cambridge, where she was awarded - among other prizes - the BRD Clarke Prize for Best Overall Performance in the LL.M. and the Clive Parry Prize for Best Result in International Law, as well as the Whewell Scholarship in International Law. Esmé completed her LL.B.(Hons) and a B.A. at the Australian National University.
Appointments
- Academic Editor, Australian Year Book of International Law
- Associate Editor, ICSID Review - Foreign Investment Law Journal
- Associate Editor, Kluwer Arbitration Blog
- Editorial Board Member, Journal of International Arbitration
- Senior Editor, Brill Research Perspectives in International Legal Theory and Practice
- Vice-President (Australia) and Member, Council of the Australian and New Zealand International Law Society (ANZSIL)
- Co-Chair, ANZSIL International Economic Law Interest Group
- Subject Matter Expert, Australian Department of Foreign Affairs & Trade
- Fellow, Australian Centre for Federalism
- Solicitor, Australian Capital Territory
- Member, ANU Energy Change Institute
- Fellow, Tuckwell Scholarship Program
- Fellow, Higher Education Academy
- Team Member, Zero-Carbon Energy for the Asia-Pacific Grand Challenge initiative
Significant research publications
- Judging at the Interface: Deference to Domestic Authority in International Adjudication (Cambridge University Press, 2021)
- A Sliding Scale Approach to Travaux in Treaty Interpretation: The Case of Investment Treaties (2021) 89 British Yearbook of International Law (with Professor Michael Waibel)
- The Promises and Pitfalls of Investor-State Mediation (2021) Yearbook on International Investment Law and Policy
- E-Discovery in Investment Treaty Arbitration: Procedures, Challenges, and Opportunities (2020) 11(4) Journal of International Dispute Settlement 549-588
- Dawn of a New Era? The UNCITRAL Rules and UN Convention on Transparency in Treaty-Based Investor-State Arbitration (2016) 31(3) ICSID Review – Foreign Investment Law Journal, pp. 622-654
- Deference and Indirect Expropriation Analysis in International Investment Law: Observations on Current Approaches and Frameworks for Future Analysis (2014) 29(3) ICSID Review – Foreign Investment Law Journal, pp. 595-626
- ‘Dissecting Backlash: The Unarticulated Causes of Backlash and its Unintended Consequences’ in Geir Ulfstein and Andreas Follesdal, The Judicialization of International Law – A Mixed Blessing? (Oxford University Press, 2018) (with Professor David D. Caron)
- Three Manifestations of Transparency in International Investment Law: A Story of Sources, Stakeholders and Structures (2017) 8(1) Goettingen Journal of International Law, pp. 73-99 (winner of the Goettingen Journal of International Law Essay Competition)
View more publications on the ANU Researchers website
Recent news
11
Mar
2021
It's been described as a "ground-breaking" study and a "tour de force" by international law experts. Learn more about Associate Professor Esmé Shirlow's new book.
11
Nov
2020
A new chapter by Dr Esmé Shirlow and the late Professor David D. Caron develops a framework for analysing transparency in international arbitration, in order to understand the structure, objectives and limits of different transparency reform efforts.
03
Jun
2020
Teaching and studying online is a brave new world for many of us at ANU College of Law, but it's one we're navigating together with trademark collegiality.
Upcoming events
27
Oct
2022
5.30PM to 6.30PM ANU College of Law Research Showcase Series
- Associate Professor Esme Shirlow
This virtual and in-person series acknowledges and promotes the outstanding research by ANU College of Law academics.
Past events
06
May
2021
5.30PM to 7.00PM Book launch
- Various
Book launch and symposium event to celebrate the latest book by Associate Professor Esmé Shirlow, Judging at the Interface: Deference to Domestic Authority in International Adjudication (Cambridge University Press, 2021).
View more publications on the ANU Researchers website
Grants
- Member, Zero-Carbon Energy for the Asia-Pacific Grand Challenge
- ANU College of Law, Internal Research Grant (2019-2020): Mapping International Conceptions of the Rule of Law and Democracy: A Study of International Adjudicative Review of Domestic Regulatory Decisions
- ASEAN Cyber Futures Grant (2018-2019)
Books & edited collections
- Esmé Shirlow, Judging at the Interface: Deference to Domestic Authority in International Adjudication (Cambridge University Press, 2021)
- Esmé Shirlow and Kiran Nasir Gore (eds), The Vienna Convention on the Law of Treaties in International Arbitration (Kluwer Law International, 2022) (see here for abstracts of all chapters and the book's foreword, written by Meg Kinnear, ICSID Secretary-General and Vice-President, World Bank Group)
- Joan E. Donoghue, Charles N. Brower, Cian C. Murphy, Cymie R. Payne, Esmé Shirlow (eds), By Peaceful Means: International Adjudication and Arbitration (Oxford University Press, forthcoming 2022)
Refereed journal articles
- The ILC Articles on State Responsibility in Investment Treaty Arbitration, ICSID Review – Foreign Investment Law Journal (2022) (with Kabir Duggal)
- Investment Protection in the AEUFTA: Missed Opportunities or Strategic Exclusions?, European Yearbook of International Economic Law (2022)
- Renewable Energy Development on the Indigenous Estate: Free, Prior and Informed Consent and Best Practice in Agreement-Making in Australia (2021) 81 Energy Research & Social Science (with Lily O’Neill, K Thorburn, Bradley Riley, Janet Hunt)
- Deference, Max Planck Encyclopedia of International Procedural Law (2021)
- A Sliding Scale Approach to Travaux in Treaty Interpretation: The Case of Investment Treaties (2021) 89 British Yearbook of International Law (with Professor Michael Waibel)
- The Promises and Pitfalls of Investor-State Mediation (2021) Yearbook on International Investment Law and Policy 2019, 461-513
- E-Discovery in Investment Treaty Arbitration: Procedures, Challenges, and Opportunities (2020) 11(4) Journal of International Dispute Settlement 549-588
- Three Manifestations of Transparency in International Investment Law: A Story of Sources, Stakeholders and Structures (2017) 8(1) Goettingen Journal of International Law, pp. 73-99 (winner of the Goettingen Journal of International Law Essay Competition)
- Dawn of a New Era? The UNCITRAL Rules and UN Convention on Transparency in Treaty-Based Investor-State Arbitration (2016) 31(3) ICSID Review – Foreign Investment Law Journal, pp. 622-654
- Taking Stock: Assessing the Implications of the Kadi Saga for International Law and the Law of the European Union (2014) 15(2) Melbourne Journal of International Law, pp. 534-559
- Deference and Indirect Expropriation Analysis in International Investment Law: Observations on Current Approaches and Frameworks for Future Analysis (2014) 29(3) ICSID Review – Foreign Investment Law Journal, pp. 595-626
- Les Laboratoires Servier, S.A.A., and others v Republic of Poland: Defining the Nature of the Police Powers ‘Defence’ and the Deference Applicable in Regulatory Expropriation Cases (2014) 29(3) ICSID Review – Foreign Investment Law Journal, pp. 559-566
- Australian Professional Practice Bodies and the Tort of Negligent Investigation (2009) 17(1) Journal of Law and Medicine, pp. 46-51 (with Professor Thomas Faunce)
- Recent Legal Developments and the Authority of the Australian Therapeutic Goods Administration (2009) 16(5) Journal of Law and Medicine, pp. 764-769 (with Professor Thomas Faunce)
Book chapters
- ‘An Introduction to the VCLT and its Role in Investor-State Dispute Settlement: Looking Back, Looking Forward’, in Esmé Shirlow and Kiran Nasir Gore (eds), The Vienna Convention on the Law of Treaties in International Arbitration (Kluwer Law International 2022) (with Kiran Nasir Gore)
- ‘The VCLT and the Creation and Application of Treaties: Introductory Reflections’, in Esmé Shirlow and Kiran Nasir Gore (eds), The Vienna Convention on the Law of Treaties in International Arbitration (Kluwer Law International 2022) (with Kiran Nasir Gore)
- ‘The VCLT and the Validity, Termination, and Amendment of Treaties in Light of Ongoing ISDS Reform: Introductory Remarks’, in Esmé Shirlow and Kiran Nasir Gore (eds), The Vienna Convention on the Law of Treaties in International Arbitration (Kluwer Law International 2022) (with Kiran Nasir Gore)
- ‘The VCLT, Future Fragmentations, and Opportunities for Innovation: Concluding Remarks’, in Esmé Shirlow and Kiran Nasir Gore (eds), The Vienna Convention on the Law of Treaties in International Arbitration (Kluwer Law International 2022) (with Kiran Nasir Gore)
- ‘Applications of the VCLT in Investor-State Arbitration, with accompanying table recording references to the VCLT in some 361 different procedural orders, decisions and awards of investor-State arbitral tribunals’, in Esmé Shirlow and Kiran Nasir Gore (eds), The Vienna Convention on the Law of Treaties in International Arbitration (Kluwer Law International 2022)
- ‘Article 32 of the VCLT and Precedent in Investor-State Arbitration: A Sliding Scale Approach to Interpretation’, in Esmé Shirlow and Kiran Nasir Gore (eds), The Vienna Convention on the Law of Treaties in International Arbitration (Kluwer Law International 2022) (with Michael Waibel)
- ‘The Role of International Law in Enhancing Climate Resilience’ in Angela van der Berg and Jonathan Verschuuren (eds), Urban Climate Resilience – The Role of Law (Edward Elgar 2022)
- ‘The Rule of Law, Standards of Review, and the Separation of Powers’ in August Reinisch and Stephan Schill (eds), Investment Protection Standards and the Rule of Law (Oxford University Press, forthcoming)
- ‘Back into the Shadows? Public Participation in the Peaceful Settlement of Investment Disputes through Non-Arbitral Means’ in Avidan Kent, Eric de Brabandere and Tarcisio Gazzini (eds), Public Participation and Foreign Investment Law: From the Creation of Rights and Obligations to the Settlement of Disputes (Brill 2021)
- ‘The Multiple Forms of Transparency in International Arbitration, Their Implications, and Their Limits’ in Thomas Schultz and Federico Ortino (eds), The Oxford Handbook on International Arbitration (Oxford University Press 2020) (with Professor David D. Caron)
- ‘Article 25(2)(b)’ in Gloria Alvarez, Remy Gerbay and Julien Fouret, The ICSID Convention, Rules and Regulations: A Commentary’ (Edward Elgar Publishing 2019) (with Professor David D. Caron)
- ‘Dissecting Backlash: The Unarticulated Causes of Backlash and its Unintended Consequences’ in Geir Ulfstein and Andreas Follesdal, The Judicialization of International Law – A Mixed Blessing? (Oxford University Press 2018) (with Professor David D. Caron)
- ‘Most-Favored-Nation Treatment: Substantive Protection’ in Meg Kinnear, Geraldine R. Fischer, Jara Minguez Almeida, Luisa Fernanda Torres and Mairee Uran Bidegain (eds), Building International Investment Law: The First 50 Years of ICSID (Wolters Kluwer 2015) (with Professor David D. Caron)
Conference papers & presentations
Selected Conference Papers/Presentations
2022:
- Approaches of International Courts and Tribunals to the Award of Compensation in International Private Property Cases and Implications for the Reform of Investor-State Arbitration (2 June 2022, International Institute for Sustainable Development)
- Meet the Scholars – Cutting Edge Issues in International Dispute Resolution (7 April 2022, American Society of International Law, Dispute Resolution Interest Group)
2021:
- ‘International Law and the Unitary State: Inertia or Innovation?’ (1 July 2021, Australia and New Zealand Society of International Law 2021 Annual Conference)
- ‘Enhancing Urban Climate Resilience: The Role of International Law’ (24 June 2021, International Union for Conservation of Nature Academy of Environmental Law & Tilburg Sustainability Centre Workshop)
- ‘Judging at the Interface: Deference to Domestic Decision-Making Authority in International Adjudication’ (10 June 2021, American Society for International Law, International Economic Law Interest Group Summer Book Series)
2020:
- ‘Reshaping International Investment Law to Respond to Disconnects between International Law-Makers and Law-Breakers’ (1-2 September 2020, Society of Legal Scholars 2020 Annual Conference)
- ‘Locating Deference – The Function of Deference in Legal Adjudication’ (24-25 November 2020, PluriCourts-iCourts ‘Concepts & Methods’ Workshop)
2019:
- “Whose Gaze Matters? Disconnects between International Law-Makers and Law-Breakers”, presented at a CIPL Workshop (“International law-making away from the public gaze”), Canberra Australia, 4 February 2019
- “Deference to Domestic Expertise in the International Adjudication of Private Property Disputes”, presented at the Australia and New Zealand Society of International Law’s Annual Conference, Canberra Australia, 5 July 2019
- “The Rule of Law, Authority and Deference to Domestic Decision-Making in International Adjudication”, presented at the Asian Society of International Law’s Annual Conference, Manila The Philippines, 22 August 2019
- “International Articulations of the Rule of Law: Deference to Domestic Decision-Making in International Adjudication”, presented at the Society of Legal Scholars Annual Conference, Preston UK, 6 September 2019
- “The Promises and Pitfalls of Investor-State Mediation”, presented on a panel convened by the International Economic Law Interest Group as part of the European Society of International Law’s Annual Conference, Athens Greece, 12 September 2019
- “Democracy and Deference to Domestic Decision-Making in International Adjudication”, presented at the European Journal of International Law’s 30th Anniversary Symposium, New York USA, 19 September 2019
Commissioned reports
- Approaches of International Courts and Tribunals to the Award of Compensation in International Private Property Cases, and Implications for the Reform of Investor-State Arbitration (International Institute for Sustainable Development, June 2022) (62 pages)
- Regional Cyber Futures Initiative Scoping Study: Legal Frameworks in the Indo-Pacific Region – Cyber Resilience of Critical Infrastructure in Indonesia’s Energy Sector (2019) (co-author: Dr. Sarah Heathcote)
- Report on Legal Methodology and Research Training for PhD Students, King’s College London Transnational Law Institute, Graduate Programme and Research Coordination Committee (2016)
Government submissions
- Response to UN Working Group on Business and Human Rights, “Human Rights-Compatible International Investment Agreements (IIAs)” (1 April 2021)
- Response to Attorney-General’s Department’s Public Consultation Paper on the United Nations Convention on International Settlement Agreements Resulting from Mediation (20 November 2020)
- Response to the Australian Department of Foreign Affairs and Trade, Review of Australia’s Bilateral Investment Treaties (29 September 2020)
- Response to the Australian Department of Foreign Affairs and Trade, Review of Australia’s Bilateral Investment Treaties (30 September 2020) (with Emma Aisbett, Christian Downie, and Lily O’Neill)
- Response to Australia’s Cyber and Critical Technology International Engagement Strategy (CCTIES) Consultation (9 June 2020) (co-author: Dr. Sarah Heathcote)
Case notes & book reviews
- 'Deference and the Practice of International Law' (2022) 21 The Law and Practice of International Courts and Tribunals 457-466 (author response to reviews in a book review symposium covering my monograph)
- ‘Book Review: Contributory Fault and Investor Misconduct in Investment Arbitration, by Martin Jarrett’ (2021) European Journal of International Law
- 'Most Favoured Nation Treatment', Jus Mundi Database (2020)
- ‘Statute of the International Tribunal for Law of the Sea’, Oxford International Organizations Database (2017)
- ‘Convention on the Settlement of International Disputes between States and Nationals of Other States’, Oxford International Organizations Database (2017)
- ‘UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration’, Oxford International Organizations Database (2017)
Other
- ‘COVID-19 and International Law: Sketching the Parameters’ (2021) Australian Year Book of International Law 3-12 (introduction to a special issue, co-authored with Imogen Saunders, David Lettts and Donald R Rothwell)
Blog Posts
-
ECT Modernisation Perspectives: An Update (5 August 2021) Kluwer Arbitration Blog (with Ylli Dautaj)
-
Investor-State Arbitration Meets Mediation: Potential Problems? (30 September 2020) Kluwer Arbitration Blog
- Investor-State Arbitration Meets Mediation: Developments, Intersections and Future Trajectories (28 September 2020) Kluwer Arbitration Blog
- ECT Modernisation Perspectives: An Introduction (20 July 2020) Kluwer Arbitration Blog (co-author: Lauren Abrahams)
- The USMCA/CUSMA/T-MEC’s Entry into Force: Evolution, Innovation, and Reform (28 June 2020) Kluwer Arbitration Blog (co-author: Kiran Nasir Gore)
- The USMCA/CUSMA/T-MEC’s Entry into Force: Introducing a New Era in Regional ISDS with NAFTA 2.0 (22 June 2020) Kluwer Arbitration Blog (co-author: Kiran Nasir Gore)
- UNCITRAL Working Group III: An Introduction and Update (23 March 2020) Kluwer Arbitration Blog
- The ICSID Reforms and Working Paper 4: Push or Pull? (14 March 2020) Kluwer Arbitration Blog (co-author: Ylli Dautaj)
- 2019 in Review: Australia, New Zealand and the Pacific (2 January 2020) Kluwer Arbitration Blog
- Celebrating 50 Years of the VCLT: 'Supplementary Means' of Interpretation in Investor-State Arbitrations (6 December 2019) Kluwer Arbitration Blog (co-author: Professor Michael Waibel)
- Celebrating 50 Years of the VCLT: An Introduction (2 December 2019) Kluwer Arbitration Blog (co-author: Kiran Nasir Gore)
- The Indonesia-Australia Comprehensive Economic Partnership Agreement: Repeated Debates, New Issues and Open Questions (24 April 2019) Kluwer Arbitration Blog
- 2018 in Review: Australia and New Zealand (21 January 2019) Kluwer Arbitration Blog
- The Australian Centre for International Commercial Arbitration’s Guideline on the Use of Arbitral Secretaries (23 February 2017) Kluwer Arbitration Blog
- The Rising Interest in the Mediation of Investment Treaty Disputes, and Scope for Increasing Interaction between Mediation and Arbitration (29 September 2016) Kluwer Arbitration Blog
- UNCITRAL’s 2016 Notes on Organizing Arbitral Proceedings: Evolutions and Fragmentations in International Arbitration (7 September 2016) Kluwer Arbitration Blog
- Unpacking the Complexities of Backlash and Identifying its Unintended Consequences (25 August 2016) EJIL: Talk! (co-author: Professor David D. Caron)
- Recent Developments in Australia’s Approach to Confidentiality and Transparency in International Arbitration (19 December 2015) Kluwer Arbitration Blog
- Addressing the Problem of the ‘Unknown’ Claimant in Investor-State Arbitration (25 November 2015) Kluwer Arbitration Blog
- Reviewing Australia’s Approach to the Negotiation of Trade and Investment Treaties (8 September 2015) Kluwer Arbitration Blog
- Reforming Investment Treaties: UNCTAD’s 2015 World Investment Report (23 July 2015) Kluwer Arbitration Blog
- Weighing in on the Debate about the Future of ISDS in Australia: the Productivity Commission’s 18th Trade and Assistance Review (9 July 2015) Kluwer Arbitration Blog
- A Step Toward Greater Transparency: The UN Transparency Convention (30 March 2015) Kluwer Arbitration Blog
- Looking behind the Statistics for Investment Arbitration (24 February 2015) Kluwer Arbitration Blog
- What is an Arbitration, and Does it Really Matter? (An Australian Perspective) (19 February 2015) Kluwer Arbitration Blog
Interviews
- Interview with Shane Spelliscy, Chair of UNCITRAL Working Group III on Investor-State Dispute Settlement Reform (24 August 2022) Kluwer Arbitration Blog (with Maria Alarcon)
- Interview with Meg Kinnear, Secretary General of the International Centre for Settlement of Investment Disputes (ICSID) (22 March 2022) Kluwer Arbitration Blog (with Maria Alarcon)
- NU Centre for Teaching and Learning, ‘The Intensity of Online Conversion’, Interact Blog (5 August 2020)
- ANU Law, ‘Rising to the Challenge: How Our students and Staff Are Thriving Online’ (3 June 2020)
- Interviews of Our Editors: “What Does Kluwer Arbitration Blog Mean to You?” (3 May 2020) Kluwer Arbitration Blog
- ANU Law Students' Society, 'Legal Academia' in 2020 Law Career Guide (March 2020)
Currently supervising
LLM Masters thesis supervision
Dr. Shirlow currently supervises students undertaking the Graduate Research Unit on topics related to international law and/or investment treaty law and arbitration.
- 2020 - J Cummings, "International Property Law and Investor-State Dispute Settlement"
- 2020 - A Bell-Rowe, "The Spectrum of Relevance: How Much Does a State's Place on the Monism-Dualism Spectrum Affect the Influence of International Law on that State's Regulation of Administrative Decision-Making?"
- 2019 - B McDonald, "Anti-doping proceedings before the Court of Arbitration for Sport: Lawful or foul play? A focus on proportionality and Article 6 of the European Convention on Human Rights"
Honours thesis supervision
Dr. Shirlow currently supervises students undertaking Supervised Research Papers (Hons) on topics related to international law and/or investment treaty law and arbitration.
- 2020 - L Abrahams, "Can the Due Diligence Principle Overcome Difficulties in Attributing State Responsibility in Cyberspace?"
- 2019 - S Collins, "Hold Outs and Hold Ups: The Role of Specially Affected States in the Formation of Customary International Law"
- 2019 - Z Qayyum, "All Bark and No Bite: The Enforceability of Proposed Reforms to Investor-State Dispute Settlement"
Current courses
| Year | Course code | Course name |
|---|---|---|
| 2022 |
LAWS8182 Class #4598 |
Principles of International Law |
Previous courses
| Year | Course code | Course name |
|---|---|---|
| 2021 |
LAWS8336 Class #1611 |
International Investment Treaty Law and Arbitration |
| 2021 |
LAWS8182 Class #1575 |
Principles of International Law |
Past courses
- At ANU:
- International Law (LAWS2250/6250)
- Advanced International Law (LAWS4264)
- Jessup Moot (LAWS4010)
- International Investment Treaty Law and Arbitration (LAWS4306/8336)
- Principles of International Law (LAWS8182)
- International Investment Law (Visiting Lecturer, King's College London)
- Public International Law (Visiting Lecturer, King's College London and Sessional Tutor, Australian National University)
- Various (Jabal Centre, Australian National University)
