Washington and Lee law professor Susan Franck will present research related to her book at the European Society of International Law’s 5th Annual Research Forum. The topic this year is International Law as a Profession. Franck’s panel is on the specific topic of the Dynamics of International Judicial Law Making, but her particular topic will focus on the role of counsel in investment treaty arbitration (ITA).
Using a dataset of 272 public ITA awards in 202 different cases rendered before January 2012, Franck’s research is the first of its kind internationally to explore the role of counsel through both descriptive and associative hypothesis testing. It first offers basic descriptive information about the number of entities involved in representing clients in ITA, the relative roles of in-house and external counsel, and the patterns of representation exhibited by investors and states that retain counsel. It next considers whether counsel involved in ITA solely represent investors, states or perhaps switch sides to represent different types of parties in different disputes. The paper then identifies the most prevalent players and constructs the “Top 21” list of legal entities involved in ITA.
On the basis of this information, the paper constructs two different measures to both identify the impact of repeat players in the legal representation involved in ITA. It constructs one variable—a binary measure—to simply identify whether counsel have ever been involved in multiple claims; and it constructs a second variable—a weighted variable—to provide a weighted assessment of the relative expertise of the individual legal entities involved in the arbitration process. These variables are then coded to assemble data about the total experience of both the investors’ and respondent’s legal teams. The research then explores the role of lawyers and the impact of the expertise of parties’ legal representation on critical variables.
The next section identifies whether the expertise of each party’s legal team is reliably linked to fundamental aspects of ITA, particularly variables such as amounts claimed, ultimate outcomes and amounts awarded. It also explores whether expertise is linked in some way to either: (a) the amounts charged by lawyers; or (b) the amount of lawyer fees shifted by tribunal’s during the cost phase. Finally, it considers the link between each side’s relative expertise, thereby offering the possibility of exploring whether the “lawyering up” by investors that retain more sophisticated counsel is linked to the expertise of respondent’s counsel and vice versa.
Ultimately, by exploring the role of lawyers in ITA and assessing whether they do (or do not) make meaningful contributions to the arbitration process, Franck argues we will have a better sense of the value of international lawyers in an area of law with critical implications for the international political economy. This, in turn, permits considered evolution of how lawyers potentially impact the generation of international law through their capacity as advisors and advocates.