International Arbitration and Sovereignty - WAMR 2013 Vol. 7, No. 1

Author(s):

W. Michael Reisman

Page Count:

14 pages

Media Description:

1 PDF Download

Published:

June, 2013

Jurisdictions:

International

Practice Areas:

Commercial Disputes,

Enforcement of Arbitral Awards,

Sovereign Immunity,

States as Parties

Author Detail:

W. MICHAEL REISMAN is Myres S. McDougal Professor of International Law at the Yale Law School where he has been on the Faculty since 1965. He has been a visiting professor in Tokyo, Hong Kong, Berlin, Basel, Paris and Geneva. He is a Fellow of the World Academy of Art and Science and a former member of its Executive Council, a member of the Advisory Committee on International Law of the Department of State, President of the Arbitration Tribunal of the Bank for International Settlements and a member of the Board of The Foreign Policy Association. He has been elected to the Institut de Droit International and is Honorary Professor in City University of Hong Kong. He was President of the Inter-American Commission on Human Rights of the Organization of American States, Vice-President and Honorary Vice-President of the American Society of International Law, Editor-in-Chief of the American Journal of International Law and Vice-Chairman of the Policy Sciences Center, Inc. He has served as arbitrator and counsel in many international investment cases and was presiding arbitrator in the OSPAR arbitration (Ireland v. UK) and arbitrator in the Eritrea/Ethiopia Boundary Dispute and in the Abyei (Sudan) Boundary Dispute. His most recent books are: THE QUEST FOR WORLD ORDER AND HUMAN DIGNITY IN THE TWENTY-FIRST CENTURY: CONSTITUTIVE PROCESS AND INDIVIDUAL COMMITMENT: GENERAL COURSE ON PUBLIC INTERNATIONAL LAW (Hague Academy of International Law, 2012); L’ECOLE DE NEW HAVEN DE DROIT INTERNATIONAL (A. Pedone, 2010); STOPPING WARS AND MAKING PEACE: STUDIES IN INTERNATIONAL INTERVENTION (with Kristen Eichensehr, eds.) (Martinus Nijhoff Publishers, 2009). His forthcoming book is: FRAUDULENT EVIDENCE BEFORE PUBLIC INTERNATIONAL TRIBUNALS: THE DIRTY STORIES OF INTERNATIONAL LAW (with Christina P. Skinner), Cambridge University Press, (2013). Professor Reisman may be contacted at michael.reisman@yale.edu.

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Description:

Originally from World Arbitration And Mediation Review (WAMR)

The great revolutions in the opening decades of the last century in Mexico and then in Russia installed a new meaning of sovereignty, the modern version of the “command economy.” The state, as the putative representative of the people, would hold inalienable title to the wealth of the national community and reserve an exclusive right to organize and, if it wished, to conduct, through the governmental apparatus, the most critical economic activities. Government subsumed the market.

If these revolutionary events had occurred in a global system with little cross-border exchange, their significance would have been limited to the internal affairs of the states where they took place. The world would scarcely have taken notice; and if it had, it would not have cared. But the revolutions coincided with growing international trade and investment, facilitated by unprecedented advances in transportation and communications. So private sector actors in the free market systems of the most economically important parts of the rest of the world increasingly found that they were now conducting business, whether trade or direct investment, with governments rather than, as in the past, with private counterparts. If the law and the national courts applying it had treated governments that engaged in commerce like private parties, the fact that trading partners were now agencies of states would not have altered legal equations. Yet the national courts in free market systems still granted a high degree of immunity, if not absolute immunity, to governments.