Am I still an "international trade lawyer"?

As part of the normal course of my professional life, I find myself attending social functions in elegant venues, in some of the world's great cities. In the past year, the cities have included Prague, Brussels, London, DC and Montreal. I mention these cities not to impress (as there are those far more well-travelled than myself on this list) but rather to explain that the people I meet at these functions frequently have no idea who I am or what I do (nor I them). I do know one thing about them though; they have some interest in the teaching, research or practice of "international law" and they often do "that which they do" within the general geographic area of our meeting.

I made my name (to the extent that I actually have any sort of "name") working on the earliest NAFTA Chapter 11 investor-state disptues. I fell into the practice after working briefly in international trade policy for the Canadian Federal Government and serving as a Federal Court clerk. My professional passion, at the time, was international regulatory policy and reform. Academically, I hoped to identify and exploit the links between regulatory reform at the domestic level and international trade obligations, using the hard obligations of the new WTO Agreement and the soft law mechanisms of the OECD and APEC.

At the time I had run a successful e-mail discussion group and a web page of hard-to-find links on regulatory reform. Soon after my career change, however, the discussion group was dropped and the web sites became: www.naftaclaims.com (since 1998, to be complemented last year by: www.investmentclaims.com).

I was invited to work on the earliest NAFTA claims against Canada because I had some experience in the subject of one dispute (softwood lumber for Pope & Talbot v. Canada) and because I had published an article explaining how the process of implementing what would become the measure in the other dispute (S.D. Myers v. Canada) was violative of Canada's Federal Government Regulatory Policy and Canada's international trade obligations. Both of these cases demonstrated how a measure can simultaneously attract liability under a State's international trade obligations AND its international investment obligations. That a measure could be conceived as affecting "trade" or "investment" obligations would come as no surprise to the average business person - given that the distinction between trade and investment is one that is readily made by policy-makers, but not nearly so easily understood within the context of "the real world." In reality, most measures will have an impact on trade (on the macro level) and investment (both on macro- and micro-levels).

This short personal history brings me to the subject of today's blog: when I meet somebody at a cocktail party and they ask me "What do you do?" what should be my succinct yet sufficiently informative answer?

Sometimes I say "I am a trade lawyer" - where "trade" is proxy for "international economic law". Sometimes I say "I sue governments under investment protection treaties" - but I advise governments too (when it is to their advantage to seek the perspective of someone with more experience on the claimants' side of the bar)... and how many people know what an "investment protection treaty" is anyway? "I teach and practice international economic law" works, in that it says I'm an academic and that I spend my time on international law and that it has an economic component (and likely alerts the person that I am really quite dull and it's either time to switch the topic quickly to sports or refill his or her drink) - but I don't have a permanent teaching appointment anywhere and - outside of the many "followers of Hudec & Jackson" - not many lawyers know what "international economic law" really means.

Exascerbating this problem is the fact that I run in two circles: (1) historically and acedmically, I know a lot of trade law types (trade remedy lawyers, WTO scholars and enthusiasts, etc.; but (2) currently I spend my time with international commercial arbitration lawyers. This latter crowd inhereted all of the earliest investor-state treaty arbitration work because the drafters of these many treaties chose the international commercial arbitration model for the settlement of investor-state disputes. While most of their time was spent in resolving disputes between large multinationals, these practitioners would spend some time working on the odd expropriation case. For those lucky enough to work on international claims tribunals, or who had a public international law inclination, there was a chance to make investor-state dispute settlement a focus of their practices (focusing almost exclusively on expropriation).

The international commercial arbitration crowd still handle the bulk of investor-state arbitration, and the ranks of arbitrators in these disputes are drawn from the same pool. But they are no longer alone. The earliest NAFTA cases (that deserve a large amount of credit for acting as catalyst for the relative explosion of investor-state cases we are now witnessing) were not brought by international commercial arbitration lawyers; many were brought, and defended, by people whose background was in international trade law (such as me). The claims we made, and the law we argued, was heavily influenced by the development of what Weiler suggested might be the common law of international trade (as well as older strains of public international law). This evolution was "natural" because the obligations contained within investment protection treaties, including also NAFTA Chapter 11, are very similar to those found in other international economic agreements, including the WTO agreements as elaborated by the GATT and WTO acquis.

So today we have trade lawyers and international commercial arbitration lawyers working in the same "new" field: investor-state arbitration. As the number of cases grow, but the ranks of well-established international commercial arbitrators remains constant, the list of those who serve as arbitrator grows to include the same people who sit on WTO panels or the Appellate Body. Similarly, those who study the development of this (relatively "sexy") field include academics with backgrounds in public international law, alternative dispute settlement and international trade law. Still, however, the social circles have not yet meshed. When I mention a leading name in one field to someone who hails from another, they often don't know of whom I am speaking (and this phenomenon runs deeply: e.g. the name "John Jackson" often will not ring a bell with those from a commercial arbitration background; just as the name "Jan Paulsson" means little to the average trade lawyer).

For how long will this state of affairs continue (and, more trivially, for how long will I struggle to find a phrase describing myself and my work in investor state arbitration / international economic law)? There is already clear evidence of a convergence on the ground and in the substantive law. Perhaps the convergence can only be completed at the practice level when these two groups of international lawyers become one.

Thoughts?

Comments

[Joel P. Trachtman]

Well, Todd, to put it in current (low) cinematic terms, you are a mutant, or perhaps a hybrid. Whether your strange genetic recombination will survive (and procreate) depends on how well adapted it is for its environment. It seems to me that you represent a rather robust hybrid that can engage in needed intellectual cross-fertilization. There is, thankfully, a niche for you. The more difficult question is whether there is an academic niche for you. There seem to me to be only a handful of international investment law-oriented academics (Sornarajah, Waelde, and Salacuse come right to mind, but I know I am missing some), far fewer than the number of international trade law-oriented academics. Perhaps we will know that your strain is successful when the law schools start hiring. Perhaps that will depend on whether you manage to generate more litigation.

[Yan Luo]

I suppose the distinction between trade lawyer and other “international economic law” lawyer is not that obvious in practice. I’ve been trained as an international trade law-oriented academic and have worked for law firms specialized in trade remedy (that means nothing else than anti-dumping). However, my (future) boss also asked me to pay fairly enough attention to investment law as the firm advises clients in FDI as well. I am not sure to what extent one’s international trade law background can benefit his/her investment law practice, or verse vice. It, however, is not a disadvantage in my view. So, all in all, I still would say I am an international trade lawyer.

[Tomer Broude]

Thoughts...

Todd's post draws attention to several interesting questions. Some of them I hope will be discussed at the 2006 meeting of the American Society of International Law's International Economic Law Group at Bretton Woods ( http://www.worldtradelaw.net/asilielgpapers.pdf ), on the state and future of international economic law.

Myself, I consider investment law as part and parcel of international economic law. It would be good if more discussion on this Blog related to investment, not just trade (as well as competition, development aid, sustainable development and immigration, to mention a few).

But the questions raised are a bit nebulous, so one way to address them in a Bloggish manner is by reference to Yogi Berra's quotable legacy (although I am aware that some might find sports analogies to be politically incorrect).

Of the modern investment lawyer it might be said that she or "He hits from both sides of the plate. He's amphibious". Trade seems to be the proper context of investment (but human rights lawyers, or environmental lawyers might think otherwise). At any rate there seems to be no contradiction between the two areas. Constitutional lawyers have to sometimes understand IP, and vice versa. Same here, and more so.

So if career choices are being considered, between trade and investment, well, "If you come to a fork in the road, take it", but bear in mind that you cannot make "too many wrong mistakes". I have my own doubts about the sustainability of the recent growth of the investment litigation industry. As Yoggi said in another context, "Nobody goes there anymore; it's too crowded". This might soon be the case in investment arbitration. Many people are smelling the money, no doubt, as would be counsel or arbitrators, and one-stop-shop firms cannot afford not to have a BIT practice. But investment arbitration is not a cottage industry.

Academically - remember that "In theory there is no difference between theory and practice. In practice there is." - There are significant differences between the public-private dimensions of trade and investment, as within sub-sections of the trade area (e.g., dumping, and SPS). These are what make investment law interesting to me, at least, much more so than traditional commercial arbitration.

T.

[Sungjin Kang]

Having been studying international trade law for the last 4-5 years and now studying investor-state arbitration, I find Prof. Weiler's comment pretty interesting and timely. I personally think that more interaction should be made between international trade law circle and international commercial arbitration circle in any form.

Like Mr. Luo, I also want to develop my career as a trade lawyer primarily. However, like Mr. Luo mentioned, I think it's always good to have good understanding on investment law and practice. In this regard, I thank Prof. Weiler to raise this issue in this blog.

Sungjin Kang