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Proliferation of International Dispute Settlement Mechanisms: The Threat of Fragmentation vs. the Promise of a More Effective System? - Some Reflections from the Perspective of Investment Arbitration

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(From the introduction) For more than a decade, international lawyers and international relations scholars have been fascinated by an ever-increasing number of international courts and tribunals. These are producing more international case-law, thereby replacing the traditional scarcity of international law precedents embodied in a few celebrated ICJ and PCIJ cases. Today, there is a host of frequently highly specialized international dispute settlement mechanisms like the WTO Dispute Settlement Body, the International Tribunal for the Law of The Sea, the International Criminal Court, various investment tribunals acting under The International Centre for Settlement of Investment Disputes (ICSID) Convention or other arbitration rules. All apply, interpret and probably ‘make’ international law. One question frequently raised in this context is whether these institutions contribute to the development of a single uniform body of international law or whether they make ‘their own’ ever more fragmented law. To the extent that they must apply specifically agreed upon rules, such as the WTO agreements, various bilateral investment protection treaties or the Law of the Sea Convention, etc., this is of course largely a false problem. In so far as they rely on common rules of international law, coherence vs. fragmentation does indeed arise and is a serious issue.

Scholars of international law have intensely debated these problems mostly under the heading ‘fragmentation’ of international law or ‘proliferation’ of international courts and tribunals. Gerhard Hafner has significantly contributed to this scholarly debate in a number of articles, and most importantly in a report prepared for the International Law Commission (ILC), which triggered the Commission’s work on fragmentation and was further pursued by Gerhard Hafner’s successor on the ILC, Martti Koskenniemi.

It thus appears appropriate to dedicate a few modest thoughts about these issues to a great international lawyer with whom I have had the privilege to work at the Department of International Law and International Relations at the University of Vienna during the last twenty years. Gerhard Hafner will understand that due to the space allotted in this liber amicorum, I must limit the scope of my remarks on fragmentation and proliferation to a specific subfield of international law. He will also appreciate that the chosen field is investment law and arbitration, which, in many respects, may be viewed as a test laboratorium of international law where many of the pertinent problems mentioned above have appeared in particularly visible form.

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Martinus Nijhoff Publishers in "International Law between Universalism and Fragmentation - Festschrift in Honour of Gerhard Hafner", J. Crawford/A. Pellet/I. Buffard/S. Wittich (eds.)
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December 2008 Dispatch - Democracy and Decentralization in Indonesia: Ten Years after Suharto

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Christian von Luebke
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At first sight, political turmoil in Thailand and the Philippines—repeated violent protests, impeachment battles, and military coups—gives the impression that democracy in Southeast Asia is on a downward spiral. One country in the region, however, has sustained a stable pluralistic democracy: the Republic of Indonesia.

In 1999, after thirty years of Suharto’s centralistic, authoritarian rule, Indonesia embraced far-reaching decentralization and election reforms. Within a brief period of two years, the Indonesian government reshaped its administrative architecture, including the devolution of local tax and service responsibilities to more than 400 district governments. In view of its deep-seated authoritarian traditions, beginning with Javanese kingdoms and sultanates, moving through Dutch colonialism (1619–1942), and ending with Suharto’s New Order (1965–98), Indonesia’s rapid shift toward democratic decentralization stands out as one of the most remarkable political transitions in recent history.

Particularly notable is the peaceful and competitive conduct of Indonesian elections. Over the last decade, local citizens have elected more than 30,000 local councilors and over 400 mayors, regents, and governors, with little violence or intimidation. High voter turnouts (around 70 percent) and high replacement rates of incumbent executives (roughly 40 percent) bear witness to rising electoral competition in local polities. While subnational elections display considerable flux, the upcoming presidential elections in July 2009 suggest continuity. The latest national polls, for example, predict a comfortable lead for President Susilo Bambang Yudhoyono (49 percent) over his main competitor, Megawati Soekarnoputri (36 percent).

The institutionalization of democracy and decentralization, however, has yet to translate into substantive public sector reforms. Indonesia continues to score low in global governance assessments. According to Transparency International and the World Bank, Indonesia’s government ranks 126th (out of 180) in terms of corruption, and 129th (out of 181) in terms of administrative efficiency for business start-ups. With the introduction of regional autonomy, these governance problems have, to a considerable extent, been decentralized to hundreds of districts. Yet, despite formally uniform institutional settings, local governments exhibit vast differences in regulatory quality, administrative efficiency, and anticorruption measures.

What motivates some local governments to perform better than others? Implicit in this question, which stands at the center of my research, is the idea that local democracy is not only an end in itself, but also a means for improving government outcomes. The pronounced policy differences that arise in Indonesia’s district polities provide a good opportunity to examine the workings of Indonesian local democracy or, to use a different terminology, the political economy of local decision-making.

The findings from controlled case comparisons and subnational datasets suggest that policy variations are best explained by differences in government leadership. Good policy environments emerge primarily in cases where local regents and mayors, whose career aspirations are tested by direct elections, skillfully use their office powers to forge reform coalitions and supervise bureaucratic practices. Societal reform pressures that arise from local parliaments, business chambers, and nongovernmental organizations, in comparison, tend to be less significant drivers of good governance. While broad-based interest groups continue to struggle with collective-action problems, district council members seem more concerned with provincial/national party elites (and their party list positions) than with representing local constituencies. Thus, in Indonesia’s early stage of democratic transition, where societal pressures are yet to fully unfold, much seems to depend on leadership efforts to initiate, facilitate, and oversee government improvements.

Under what conditions, then, are local leaders likely to act in the public interest, rather for private gain? While direct elections provide basic incentives, the direction and strength of these incentives also hinge upon existing socioeconomic structures. Government leaders need to accommodate interests of powerful economic groups in order to secure support for campaign funding and co-investments in public goods. Whether these interest alignments result in unproductive rent-seeking and corruption, or in constructive government reforms, depends on the constellation and transparency of economic powers.  The more economic powers become concentrated in specific sectors, groups, and firms, and the less public-private interactions are monitored by local media, the greater the likelihood that leaders will pursue self-preferential and collusive strategies.

As a result, it is plausible to assume that a moderate economic concentration and strong media presence are conducive to better governance. At this point, only some districts fall into this category. But as globalization and communication technologies progress, local polities are bound to become more economically diverse and politically informed. With growing political awareness and increased incentives for better leadership, it is likely that Indonesia, over time, will see more public-private symbioses for reform and, thus, bridge the gap between well-functioning elections on the one hand and poor governance
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Is Asia Still Rising? Repercussions Of Recession

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Asia’s economies have been hard hit by the current global financial crisis, despite in most cases enjoying strong macroeconomic fundamentals and stable financial systems.  Early hopes were that the region might be “decoupled” from the Western world’s financial woes and even able to lend the West a hand through high growth and the investment of large foreign exchange reserves.  But that optimism has been dashed by slumping exports, plunging commodity prices, and capital outflows.  The region’s most open, advanced and globally-integrated economies—Hong Kong, Singapore, and Taiwan—are already in severe recession, with Japan, Korea and Malaysia not far behind, and dramatic slowdowns are underway in China, India, Indonesia, Thailand and Vietnam.  What role did Asian countries play in the genesis of the global crisis, and why have they been so severely impacted?  How is their recovery likely to be shaped by market developments and institutional changes in the West, and in Asia itself in response to the crisis?  Will the region’s embrace of accelerated globalization and marketization following the 1997-98 Asian financial crisis now be retarded or reversed?

Linda Lim is a leading authority on Asian economies, Asian business, and the impacts of the current global financial crisis on Asia, and she has published widely on these topics. Her current research is on the ASEAN countries’ growing economic linkages with China.

Forthcoming in 2009 are Globalizing State, Disappearing Nation: The Impact of Foreign Participation in the Singapore Economy (with Lee Soo Ann) and Rethinking Singapore’s Economic Growth Model. She serves on the executive committees of the Center for Chinese Studies and the Center for International Business Education at the University of Michigan, where formerly she headed the Center for Southeast Asian Studies. Before coming to Michigan, she taught economic development and political economy at Swarthmore. A native of Singapore, she obtained her degrees in economics from Cambridge (BA), Yale (MA), and Michigan (PhD).

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Linda Yuen-Ching Lim Professor of Strategy, Stephen M. Ross School of Business Speaker University of Michigan
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Opportunities and Constraints in East Asian Regionalism

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The U.S. financial crisis has spread around the globe. Financial globalization means that most countries and regions are not immune to the contagious effects of a financial crisis that originates in one country.

East Asian countries had already experienced the contagious effects of a financial crisis in 1997. That year, a financial crisis that broke out in Thailand and Indonesia reached Malaysia and then South Korea. Each of these countries reacted differently to the crisis. South Korea, Indonesia, and Thailand accepted International Monetary Fund (IMF) conditionalities that required neoliberal economic restructuring in return for emergency loans, while Malaysia rejected the IMF offer and instead encouraged the inflow of speculative financial capital, while reforming the banking and financial system. In the aftermath of the East Asian financial crisis, regional economic, financial and security cooperation were discussed among East Asian countries. These efforts resulted in the Chiang Mai Initiative, the Bond Initiative, the East Asian Summit, the Shanghai Cooperation Organization, and the Six Party Talks.

Thus, regionalism in East Asia was revived in response to external shocks, such as global financial volatility, endogenous opportunities such as East Asian market compatibility (Pempel, 2008), endogenous security threats such as the North Korean nuclear development, and exogenous opportunities such as "bringing in the U.S." (Pempel, 2008).

Nonetheless, East Asian regionalism is still at a low level of institutionalization compared to Europe. East Asian regionalism is still basically "bottom-up, corporate (market)-driven regionalism" (Pempel, 2005). 

I will discuss the obstacles and the opportunities that Northeast Asian countries are facing since the end of the Cold War and the advent of globalization.

Hyug Baeg Im is Professor at the Department of Political Science and International Relations, Korea University, Seoul, South Korea. He is Dean at the Graduate School of Policy Studies and Director at Institute for Peace Studies. He received B.A. in political science from Seoul National University, M.A. and Ph.D. in political science from the University of Chicago. He was visiting professor at Georgetown University (1995-1996), Duke University (1997), Stanford University (2002-2003) and visiting fellow at International Forum for Democratic Studies, National Endowment for Democracy, Washington DC (1995-1996). He served as a presidential adviser of both Kim Dae Jung and Roh Moo Hyun presidency. His current research focuses on the impact of IT revolution and globalization on Korean democracy. His publications include “The Rise of Bureaucratic Authoritarianism in South Korea,” World Politics, Vol. 34, No. 2 (1987), “South Korean Democratic Consolidation in Comparative Perspective” in Consolidating Democracy in South Korea (Lynne Rienner, 2000) and “’Crony Capitalism’ in South Korea, Thailand, and Taiwan: Myth and Reality,” (co-authored with Kim, Byung Kook) Journal of East Asian Studies, Vol. 1, No. 1 (2001), “Faltering Democratic Consolidation in South Korea: Democracy at the End of Three Kims Era” Democratization, Vol. 11, No. 5(2004), “Christian Churches and Democratization in South Korea” in Tun-jen Cheng and Deborah A. Brown (eds.), Religious Organizations and Democratization: Comparative Case Studies in Contemporary Asia (M.E. Sharpe, 2006) and “The US Role in Korean Democracy and Security since Cold War Era,” International Relations of the Asia Pacific, Vol. 6, No.2 (2006).

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HYUG BAEG IM Department of Political Science and International Relations Speaker Korea University
Seminars

Making Sense of Domestic Intelligence

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Gregory Treverton is director of the RAND Corporation's Center for Global Risk and Security.  Earlier, he directed RAND's Intelligence Policy Center and its International Security and Defense Policy Center, and he was associate dean of the Pardee RAND Graduate School.    His recent work has examined at terrorism, intelligence and law enforcement, with a special interest in new forms of public-private partnership.  He has served in government for the first Senate Select Committee on Intelligence, handling Europe for the National Security Council and, most recently as vice chair of the National Intelligence Council, overseeing the writing of America's National Intelligence Estimates (NIEs).  He holds an A. B. summa cum laude from Princeton University and an M.P.P (Master's in Public Policy) and Ph.D. in economics and politics from Harvard.  His latest books are Intelligence for an Era of Terror, forthcoming; Reshaping National Intelligence for an Age of Information, Cambridge University Press, 2001; and New Challenges, New Tools for Defense Decisionmaking, (edited,), RAND, 2003.

Frank Foley, a 2008-09 Zukerman Fellow, is a postdoctoral student in international security at CISAC. His research concerns counterterrorist policy and operations, the reform of intelligence and police agencies and the increasing role of judicial and prosecutorial actors in the field of security. His PhD dissertation, currently under revision for publication, is a comparative analysis of British and French counterterrorist policies, which argues that western states' different institutional characteristics and norms in the field of security are shaping their responses to Islamist terrorism, leading to divergent approaches to a common problem. At CISAC, Frank is analyzing the co-ordination of counterterrorist agencies within the United States, France and Britain, drawing on organization theory to explain why some countries achieve higher levels of inter-agency co-operation than others. He has also written on European Union security policy and on terrorism and community conflict in Northern Ireland. Upcoming projects include a review of the terrorism and counterterrorism literature for the International Studies Association's Compendium Project and an analysis of the forces shaping international co-operation on counterterrorism at both the diplomatic and operational levels.

Frank received his PhD from the Department of Political and Social Sciences at the European University Institute in Florence, Italy, and is a graduate of the University of Cambridge (MPhil) and University College Cork (BA, MA). He worked as a journalist in Brussels and as a researcher in Northern Ireland between 2001 and 2004.

If you would like to be added to the email announcement list, please visit https://mailman.stanford.edu/mailman/listinfo/socialscienceseminar 

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Gregory Treverton Senior Policy Analyst, RAND Corporation; Professor, Pardee RAND Graduate School Speaker
Frank Foley CISAC Postdoctoral Zukerman Fellow; PhD, Political Science and Social Sciences, European University Institute Commentator
Seminars

US Civil - Military Relations and the Implications of the Private Military Contractors

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Thomas Bruneau is a Distinguished Professor of National Security Affairs at the Naval Postgraduate School. He has researched and written extensively on Latin America, especially Brazil, and Portugal. Dr. Bruneau has published more than fifteen books in English and Portuguese as well as articles in journals including Latin American Research Review, Comparative Politics, Third World Quarterly, Encyclopedia of Democracy, South European Society and Politics, Journal of Democracy, International Journal of Intelligence and Counterintelligence, Democratization, and Military Affairs.

In addition to his position as Professor in the NSA Department, Professor Bruneau was the Academic Associate for the curriculum in International Security and Civil-Military Relations from its founding in 1996 until 2002. Between 1998 and 2001 he served as rapporteur of the Defense Policy Board that provides the Secretary of Defense and his staff with independent and informed advice on questions of national security and defense policy.

He has three recently published books. He is co-editor, with Scott Tollefson, of Who Guards the Guardians and How: Democratic Civil - Military Relations (Austin: University of Texas Press, 2006). His second book, also published by University of Texas Press, with CDR Steve Boraz, is Reforming Intelligence: Obstacles to Democratic Control and Effectiveness. His co-edited book with Harold Trinkunas, Global Politics of Defense Reform, was published by Palgrave-Macmillan in February 2008.

A native of California, Professor Bruneau received his BA from California State University at San Jose and his MA and PhD from the University of California at Berkeley

Stephen Krasner is a former director of CDDRL, former deputy director of FSI, an FSI senior fellow, and the Graham H. Stuart Professor of International Relations at Stanford University.

From February 2005 to April 2007 he served as the Director of Policy Planning at the US State Department. While at the State Department, Krasner was a driving force behind foreign assistance reform designed to more effectively target American foreign aid. He was also involved in activities related to the promotion of good governance and democratic institutions around the world

At CDDRL, Krasner was the coordinator of the Program on Sovereignty. His work has dealt primarily with sovereignty, American foreign policy, and the political determinants of international economic relations. Before coming to Stanford in 1981 he taught at Harvard University and UCLA. At Stanford, he was chair of the political science department from 1984 to 1991, and he served as the editor of International Organization from 1986 to 1992.

He has been a fellow at the Center for Advanced Studies in the Behavioral Sciences (1987-88) and at the Wissenschaftskolleg zu Berlin (2000-2001). In 2002 he served as director for governance and development at the National Security Council. He is a fellow of the American Academy of Arts and Sciences and a member of the Council on Foreign Relations.        

He received a BA in history from Cornell University, an MA in international affairs from Columbia University and a PhD in political science from Harvard.

If you would like to be added to the email announcement list, please visit https://mailman.stanford.edu/mailman/listinfo/socialscienceseminar 

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Thomas C. Bruneau CISAC Visiting Scholar; Distinguished Professor of National Security Affairs, Naval Postgraduate School Speaker

Stephen D. Krasner

CDDRL
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Senior Fellow at the Freeman Spogli Institute for International Studies, Emeritus
Graham H. Stuart Professor of International Relations
Senior Fellow at the Hoover Institution, Emeritus
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Stephen Krasner is the Graham H. Stuart Professor of International Relations. A former director of CDDRL, Krasner is also an FSI senior fellow, and a fellow of the Hoover Institution.

From February 2005 to April 2007 he served as the Director of Policy Planning at the US State Department. While at the State Department, Krasner was a driving force behind foreign assistance reform designed to more effectively target American foreign aid. He was also involved in activities related to the promotion of good governance and democratic institutions around the world.

At CDDRL, Krasner was the coordinator of the Program on Sovereignty. His work has dealt primarily with sovereignty, American foreign policy, and the political determinants of international economic relations. Before coming to Stanford in 1981 he taught at Harvard University and UCLA. At Stanford, he was chair of the political science department from 1984 to 1991, and he served as the editor of International Organization from 1986 to 1992.

He has been a fellow at the Center for Advanced Studies in the Behavioral Sciences (1987-88) and at the Wissenschaftskolleg zu Berlin (2000-2001). In 2002 he served as director for governance and development at the National Security Council. He is a fellow of the American Academy of Arts and Sciences and a member of the Council on Foreign Relations.

His major publications include Defending the National Interest: Raw Materials Investment and American Foreign Policy (1978), Structural Conflict: The Third World Against Global Liberalism (1985), Sovereignty: Organized Hypocrisy (1999), and How to Make Love to a Despot (2020). Publications he has edited include International Regimes (1983), Exploration and Contestation in the Study of World Politics (co-editor, 1999),  Problematic Sovereignty: Contested Rules and Political Possibilities (2001), and Power, the State, and Sovereignty: Essays on International Relations (2009). He received a BA in history from Cornell University, an MA in international affairs from Columbia University and a PhD in political science from Harvard.

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Stephen D. Krasner Graham H. Stuart Professor of International Relations and Former Director, CDDRL; Former Deputy Director, FSI; FSI Senior Fellow; Hoover Institution Senior Fellow Commentator
Seminars

Why Terrorism Still Does Not Work

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Max Abrahms is a PhD candidate at UCLA focusing on the interface of terrorism and international relations theory. Abrahms has published in International Security, Security Studies, Terrorism and Political Violence, Studies in Conflict and Terrorism, and Middle East Policy. Prior to coming to Stanford, Abrahms was a research associate at Harvard University's Belfer Center for Science and International Affairs; a fellow at Tel Aviv University; a fellow at the Washington Institute for Near East Policy; and a commissioned op-ed writer on Palestinian terrorism for the Los Angeles Times. He has appeared as a terrorism analyst on ABC News, Al-Arabiyya, Al-Hurra, Al-Jazeera, BBC, CBS, CNN, CNN Financial, Fox News, National Public Radio, and PBS. Abrahms is a graduate of the University of Pennsylvania (summa cum laude) and Oxford University, where he read his MPhil in International Relations.

Paul Stockton is a senior research scholar at Stanford University's Center for International Security and Cooperation (CISAC). He was formerly the associate provost at the Naval Postgraduate School in Monterey, California, and was the founding director of its Center for Homeland Defense and Security. His research focuses on how U.S. security institutions respond to changes in the threat (including the rise of terrorism), and the interaction of Congress and the Executive branch in restructuring national security budgets, policies and institutional arrangements. Stockton also serves as co-teacher of the CISAC Honors Program, which assists Stanford seniors in writing theses on international security.

Stockton joined the faculty of the Naval Postgraduate School (NPS) in August 1990. From 1995 until 2000, he served as director of NPS' Center for Civil-Military Relations. From 2000-2001, he founded and served as the acting dean of NPS' School of International Graduate Studies. He was appointed associate provost in 2001.

Stockton is the editor of Homeland Security, a graduate text to be published by Oxford University Press in 2009. Stockton serves on the editorial review board of Homeland Security Affairs, the quarterly journal he helped establish in 2005. His research has appeared in Political Science Quarterly, International Security, and Strategic Survey. He is co-editor of Reconstituting America's Defense: America's New National Security Strategy (1992). He has also published an Adelphi Paper and has contributed chapters to a number of books, including James Lindsay and Randall Ripley, eds., U.S. Foreign Policy After the Cold War (1997).

From 1986-1989 Stockton served as legislative assistant to U.S. Senator Daniel Patrick Moynihan. Stockton was Senator Moynihan's personal representative on the Senate Foreign Relations Committee, and was principal advisor to the senator on defense, intelligence, counter narcotics policy and foreign affairs. Stockton was awarded a Postdoctoral Fellowship for 1989-1990 by CISAC. During his graduate studies at Harvard, he served as a research associate at the International Institute for Strategic Studies in London.

Stockton received a bachelor's degree from Dartmouth College in 1976 and a doctorate in government from Harvard in 1986.

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Max Abrahms Speaker
Paul Stockton CISAC Senior Research Scholar Commentator
Seminars

Foreign Investors in the World's Workshop: Legislative Battles and Factory Struggles in China

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This talk is an overview of the changing role of foreign investment in Chinese workplaces. Foreign investment inflows helped transform the Chinese industrial landscape in the 1990s. As ownership has become blurred and increasingly mixed between domestic-foreign and public-private in China, preferential policies and laws for foreign-invested firms have diminished. A more level playing field has raised the stakes for foreign business and led to their increased participation in national debates on labor legislation and legal protections for workers. This talk will focus on this new role for foreign investors and how it is changing Chinese laws and the Chinese workplace.

Professor Gallagher studies Chinese politics, law and society, and comparative politics. She is currently working on two projects. The first, funded by a Fulbright Research Award and the National Science Foundation, examines the development of rule of law in China by examining the dynamics of legal mobilization of Chinese workers. "The Rule of Law in China: If They Build It, Who Will Come?" focuses on the demand-side of rule of law through an exploration of legal aid plaintiffs in Shanghai, a four-city household survey on legal knowledge, attitude, and practice, and in-depth case analysis of labor disputes. The second project examines labor standards and practices in four Chinese regions. One goal is to find if there are diffusion effects in legislation, court behavior, and labor practices across different regions. Another goal is to look for evidence of a "race to the bottom" in labor standards and social welfare not between China and other competing economies, but within China's own domestic economy.

This talk is part of the Stanford China Program Winter 2009 China Seminar Series titled "30 Years of Reform and Opening in China: How Far from the Cage?"

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Mary E. Gallagher Associate Professor of Political Science Speaker University of Michigan
Seminars
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