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It has become a familiar trope to recite that we live in an era marked by an unprecedented growth in international courts and tribunals. Besides its empiricist overtones and familiar focus on the evolution of international law, this ritualized incantation serves to signal the increased importance of international lawyers. An entire generation of international law scholars and practitioners--of which David D. Caron was a leading representative--has been shaped by this new landscape of international adjudication that has departed from familiar professional reference points.
David D. Caron’s scholarship on the legitimacy of international law and international institutions was ground-breaking, expansive in its reach and its impact, and elegant in its analysis, form, and structure. The questions of legitimacy that he addressed in his writing represent some of the most urgent and important matters of international law, and some of the most difficult. They are questions about how power can be exercised fairly, how justice can be achieved in a diverse international community, and how institutions can be deployed to mitigate the world’s greatest challenges.
In his lectures and scholarly writings, David Caron was fond of conjuring images. Last September, he opened a lecture in Geneva by recalling an inscription over an entrance to this law school. In his American Journal of International Law article on the 1899 Hague Peace Conference, he described a rather grim statue on the grounds of the Peace Palace in The Hague called “The Spectre of War.”
“ISDS,” as many of you may know, stands for “Investor-State Dispute Settlement,” and refers to the current system of ad hoc arbitration that foreign investors and host States use to resolve their investment disputes. Because the system is ad hoc—in other words, the disputing parties pick the arbitrators and the arbitrators decide only the case before them—it has come under increasing attack. Critics say that the one-off approach produces inconsistent results across similar cases and encourages arbitrators to act self-interestedly in search of their next appointment.