Comment - Vol. 12 Nos. 3-4 ARIA 2001
Originally from American Review of International Arbitration - ARIA
What a strange review this is!1 It is impossible to tell if the reviewer has failed to penetrate my doctoral thesis sufficiently in detail, simply not understood it, or lacked the interest and/or the time. It goes without saying that every reviewer has the right, and should, express his own views. A review which is merely a personal gloss without any attempt at a straightforward account of what the thesis is all about, let alone at a scholarly discussion of the legal issues analyzed in a doctoral thesis is, however, to put it in diplomatic terms, a bit unusual.
The reviewer states that the subject of “this book is extinctive prescription.” This is true of course – but only partially. As indicated already by the title of the thesis the subject is extinctive prescription “and applicable law in Interstate Arbitration.” In section 1.1 (The Problem) at page 15, I explain that extinctive prescription will be used as an illustrative example in discussing and analyzing the law applicable in interstate arbitration. That is why almost 200 pages of the thesis discuss various aspects of the applicable law in interstate arbitration, a fact which would come as a complete surprise to the reader of the thesis, having seen only the review. Extinctive prescription is defined on the next page, page 16, after having been mentioned on the first page of the introductory chapter, page 13, thus not addressed for the first time on page 248, as suggested by the reviewer.
The purpose and the scope of my study are explained in section 1.4 of the thesis. The analysis of the law applicable in interstate arbitration is done both at a general level, focusing on party autonomy and possible limitations thereon, and at a detailed level using extinctive prescription as an illustrative example. Why extinctive prescription? As explained on page 16 of the thesis, because of the fatal effect of extinctive prescription – extinction of the claim in question, thus leading to the end of the arbitration – the issue of applicable law is brought to a head, and the arbitral tribunal must address it squarely and rule on it. As I explain on page 13, the first page of the introductory chapter, the issue of extinctive prescription has arisen in a number of relatively recent arbitrations, one example being the arbitration concerning the U.S. Embassy in Moscow which was initiated at the beginning of the 1980’s. It is thus not correct to say, as the reviewer does, that none of the arbitrations cited by me since the end of World War I involved extinctive prescription. Not only does he miss the other arbitrations referred to on pages 13–14, but also the wellknown Ambatielos Case, decided in 1956. Remarkable!