Publications

This is a searchable catalogue of the College's most recent books and working papers. Other papers and publications can be found on SSRN and the ANU Researchers database.

A Sliding Scale Approach to Travaux in Treaty Interpretation: The Case of Investment Treaties

A Sliding Scale Approach to Travaux in Treaty Interpretation: The Case of Investment Treaties

Author(s): Esme Shirlow

Materials produced during the negotiation of treaties, commonly called travaux préparatoires (‘travaux’), are given formal significance as a ‘supplementary means’ of treaty interpretation under article 32 of the Vienna Convention on the Law of Treaties (VCLT). Travaux present both risks and opportunities for treaty interpretation, and international adjudicators have differed in how they define the rationale for referring to travaux, how they use these materials, and even more fundamentally, what materials they classify as travaux.

This article proposes a methodology to guide the more structured identification and use of travaux. Under the proposed sliding scale approach, treaty interpreters assess the utility of material to the interpretive exercise by reference to its precise qualitative features and the context of interpretation, rather than by categorizing materials as ‘travaux’ or not. The article uses the interpretation of investment treaties in investor-state arbitration as a case study to illustrate the proposed approach and its utility. The discussion, including the proposed sliding scale approach, is nonetheless equally relevant for interpreting all manner of treaties.

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Centre: CIPL

Research theme: International Law

Judging at the Interface Deference to State Decision-Making Authority in International Adjudication

Judging at the Interface Deference to State Decision-Making Authority in International Adjudication

Author(s): Esme Shirlow

This book explores how the Permanent Court of International Justice, the International Court of Justice, the European Court of Human Rights, and investment treaty tribunals have used deference to recognise the decision making authority of States. It analyses the approaches to deference taken by these four international courts and tribunals in 1,714 decisions produced between 1924 and 2019 concerning alleged State interferences with private property. The book identifies a large number of techniques capable of achieving deference to domestic decision-making in international adjudication. It groups these techniques to identify seven distinct 'modes' of deference reflecting differently structured relationships between international adjudicators and domestic decision-makers. These differing approaches to deference are shown to hold systemic significance. They reveal the shifting nature and structure of adjudication under international law and its relationship to domestic decision making authority.

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Centre: CIPL

Research theme: Regulatory Law and Policy

Yearbook on international investment law policy

The Promises and Pitfalls of Investor-State Mediation

Author(s): Esme Shirlow

This chapter analyses how mediation interacts with investment treaty arbitration, and explores the benefits and risks associated with this form of dispute settlement. It begins by introducing mediation as a non-arbitral means of settling investor-state disputes at the international level, examining uses of investor-state mediation, and references to its use, under investment treaties to date. The chapter then considers the relative strengths of mediation vis-à-vis arbitration. This includes the potential for the mediation of investment disputes to produce a quicker, more cost-effective, flexible, and holistic dispute settlement procedure with different outcomes than are available through investor-state arbitration.

The chapter also looks at three key disadvantages potentially associated with investor-state mediation: issues of confidentiality, issues of authority, and issues of enforcement. It argues that these disadvantages may weaken the efficacy and legitimacy of mediation as a dispute settlement option for investor-state disputes, while also undermining the improvements to investor-state arbitration procedures secured through recent reform efforts. Finally, the chapter looks at how mediation could be leveraged alongside arbitration to improve both procedures for the settlement of investment disputes.

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Centre: CIPL

Research theme: Private Law

Using Travaux to Interpret Treaties: A Proposed Sliding Scale

Author(s): Esme Shirlow

Materials produced during the negotiation of treaties, commonly called travaux préparatoires, are given formal significance as a ‘supplementary means’ of treaty interpretation under article 32 of the Vienna Convention on the Law of Treaties (‘VCLT’). Travaux present both risks and opportunities for treaty interpretation, and international adjudicators have differed in how they define the rationale for referring to travaux; how they use these materials, and even more fundamentally, what materials they classify as travaux. This article proposes a methodology to guide the more structured identification and use of travaux. The article uses the interpretation of investment treaties in investor-state arbitration as a case study to illustrate the proposed approach and its utility. The discussion, including the proposed sliding scale approach, is nonetheless equally relevant for interpreting all manner of treaties. Section I illustrates three practical challenges associated with the use of travaux in investment treaty disputes to highlight the advantages and pitfalls associated with using travaux. Section II considers what may constitute ‘travaux’. Based on an extensive review of arbitral practice, Section II argues in favour of a sliding scale approach to travaux, whereby treaty interpreters assess the utility of a given material by reference to its precise qualitative features and the context of interpretation. Section III considers how arbitral tribunals have used – and should use – travaux by reference to the interpretive framework established by the VCLT. Section IV considers how investment tribunals have regulated access to and use of travaux through their powers to order document production.

Read on SSRN

Centre: CIPL

Research theme: International Law

Book Review: Martin Jarrett, Contributory Fault and Investor Misconduct in Investment Arbitration

Author(s): Esme Shirlow

Investment treaties and investor-State arbitration have both been subject to sustained criticism and calls for reform in recent years. Critics have called, inter alia, for a ‘rebalancing’ of treaties to address perceived asymmetries between States and investors, and for a reconnection of investment law to other bodies of law. As reform discussions have matured, analysis of how to address these asymmetries and fragmentations in investment law have become increasingly nuanced. Contributing to this line of scholarship, Martin Jarrett‘s book tackles difficult questions associated with when an investor’s ‘faultworthy’ conduct should impact the analysis of a host State’s responsibility for internationally wrongful conduct under an investment treaty. Jarrett’s book introduces and examines three defences to investor-State arbitration claims, which are each based on an investor’s contribution to investment damage and/or an investor’s misconduct in connection with a protected investment. Jarrett’s analysis holds important implications for the apportionment of liability between States and investors for their contribution to the injury at issue in an investor-State arbitration claim.

Read on SSRN

Centre: CIPL

Research theme: International Law

the_multiple_forms_of_transparency_in_international_investment_arbitration.jpg

The Multiple Forms of Transparency in International Investment Arbitration: Their Implications, and Their Limits

Author(s): Esme Shirlow

This Chapter traces the development of procedural transparency in international investment arbitration to tease apart different types of transparency, whilst also considering their objectives and consequences. The analysis indicates that the meaning, promise and limits of transparency will differ for different stakeholders and different reform objectives. The Chapter draws out the differences between the concepts of transparency as ‘availability’, ‘access’, and ‘participation’ to identify three distinct types of ‘transparency’. It connects these concepts to the reforms to procedural transparency that have occurred for investment arbitration to date. This supports an analysis of whether the types of transparency reforms that have been pursued thus far are adapted to achieving their stated purposes. What emerges is an understanding of transparency that is closely connected to the development of, and hopes for, international investment arbitration. Transparency has emerged as a key means of improving international investment arbitration, including to make it more accountable and more legitimate. An agenda that seeks to identify and enact effective reforms to reach this promise must take into account the types of transparency best adapted to achieve these goals. In considering transparency in international investment arbitration, then, it is vital that States, arbitral institutions, and other stakeholders confront the assumptions and motivations underpinning suggested reforms in order to best adapt those reforms to achieve their stated objectives. The contours of the discussion in this Chapter hold importance for reform agendas in other fields of international arbitration. It highlights the importance of clarifying what is being proposed, what is being excluded from that discussion, and how these understandings influence the concrete outcomes of reform efforts as well as the appraisal of their success by disparate stakeholders.

Read on SSRN

Centre: CIPL

Research theme: International Law

Australian Professional Practice Bodies and the Tort of Negligent Investigation

Australian Professional Practice Bodies and the Tort of Negligent Investigation

Author(s): Esme Shirlow

The New South Wales Supreme Court has examined the statutory and common law duties of the New South Wales Health Care Complaints Commission and the New South Wales Medical Board in the recent case of Attorney General (NSW) v Bar-Mordecai [2008] NSWSC 774. The judgment establishes that a professional practice body investigating the alleged misconduct of a doctor will rarely be liable under Australian statutory or common law duties to compensate that doctor for harm arising as a result of negligent investigatory practices. In particular, it establishes that such a body owes no duty to take reasonable care to avoid psychiatric injury to a medical practitioner against whom a complaint has been lodged that is being investigated by it. It is argued that the differing relevant approaches to the tort of negligent investigation in Canada and Australia stem from differences not only in policy values but in the legal frameworks used in each jurisdiction to determine the existence of duties of care at common law.

Read on SSRN

Centre: CIPL

Research theme: International Law

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