Despite some modest progress, corporate responsibility for human rights abuses in domestic courts remains elusive. In U.S. federal courts, Alien Tort Statute (ATS) litigation is now more precarious than ever before. While there have been some potentially important developments in English courts, judges are reluctant to extend responsibility to parent corporations for harm caused by the operations of foreign subsidiaries. Although U.S. and English courts have been concerned with distinct doctrinal issues, the overall picture appears to be one of deference to the corporation and its anatomized form, and to the goal of promoting investment abroad.

The issue of investor responsibility reveals a stubborn bias within international investment law. That law addresses mistreatment by host states of foreign investors but consistently fails to address investor misconduct in host states. The traditional emphasis on state responsibility in this context has allowed abusive, pollutive, and corrupt investor behavior to thrive. International investment law is the current object of scrutiny, criticism, and reform in large part because many see it as overprotecting investors. However, scholars and reformers have focused on state responsibility, tinkering with the legal and institutional conditions that determine the international wrongfulness of state conduct. Unless and until investor responsibility is integrated into international investment law reform, the overprotection of investors owing to an accountability gap will continue to undermine its legitimacy. This essay posits that the first step to integration is understanding why investor responsibility scrabbles to find purchase in international investment law. I argue that elusive investor responsibility was created by omission, with injurious consequences that highlight the need to alter, rather than accept, the status quo.

International investment law is relational. It is about how we define and govern the relationship between the actors involved in and affected by foreign investment projects. Most international investment law literature confirms the relational nature of this field. The scholarship has analyzed the resolution of specific disputes and the regulatory relationship between foreign investors and host states. As could be expected, some of the key issues that have emerged include states’ right to regulate, the risk of regulatory chill, and how to review state regulation. There is, however, an important blind spot in this relational approach. A look at many foreign investment disputes, particularly in the natural resource extraction sector, shows that local communities are also central protagonists of foreign investment projects. These communities have a lot at stake but have remained almost invisible to the international investment regime. Apart from the ability to submit amicus curiae briefs, they have neither rights nor remedies in this regime. This essay discusses international investment law from an inclusive relational perspective, and shows how, contrary to this perspective, recent awards in investor-state dispute settlement continue to render invisible local communities and their rightful aspirations.

The need to address negative impacts of foreign investment on the environment, public health, and human rights has long been acknowledged. Drawing on recent case studies, this essay focuses on a number of concerns that arise when investors seek to unduly influence host government decision-making, including in the context of national policy-making in the public interest. This essay argues that International Investment Agreements (IIAs) should begin to more directly incorporate investor responsibilities so to avoid detrimental societal impacts of foreign investment and to maximize foreign investment's positive contribution to host communities. A fundamental reframing of IIA objectives is key in overcoming the existing resistance to incorporating investor obligations in new and amended treaties.

This essay suggests that amidst the various criticisms of investor-state arbitration, the most potent is the present inadequacy of this mechanism to establish a reciprocal responsibility of foreign investors. The founders of the modern era of international investment arbitration never intended to build a one-way street. In this sense, to seek a regime of investor responsibility may not be to reach toward a new frontier so much as to return to one that is familiar, though underexplored.

While the rule of law was originally developed with reference to domestic constitutional orders, it is also widely embraced by international lawyers. This essay argues that the admission of counterclaims in certain circumstances helps investment arbitration advance the rule of law on several counts. The rule of law is defined here to include not only formal elements such as rule-by-law and formal legality, but also “thicker” elements attached to certain substantive values, including fundamental human rights. The UN's work on the rule of law clearly adopts a broad interpretation of this concept. This essay examines the potential for counterclaims to bridge the gap between the lack of effective mechanisms to hold foreign investors accountable for their conduct and the extensive protection of foreign investors in international investment law. By doing so, counterclaims in investment arbitration may promote the thicker elements of the rule of law such as accountability to the law, access to justice, and fairness in the application of the law.

Since the first half of the twentieth century, the U.S. Congress has increasingly delegated its authority over tariffs to the U.S. president. Some of these statutes permit private actors to petition for tariff relief. Some also permit the president to initiate an investigation and subsequently to take trade-related or other action when certain criteria are met. Since the 1990s, however, a robust multilateral trading system has required the United States and others to resolve disputes over trade measures in Geneva, rather than through unilateral policy steps under these tariff authorities. In a stark departure from this movement away from unilateral action, the Trump Administration has returned to relying heavily on domestic statutes to impose tariffs on goods imported from U.S. trading partners and on those from one country in particular: China.

For seventy years, the security exception in the multilateral trade regime has mostly lain dormant. The exception first appeared in the General Agreement on Tariffs and Trade 1947 (GATT 1947), before being incorporated in the General Agreement on Tariffs and Trade 1994 (GATT 1994) upon the creation of the World Trade Organization (WTO). However, security exceptions also exist in several other WTO provisions, including the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the General Agreement on Trade in Services (GATS). Until recently, perhaps through a combination of WTO member restraint and fortuitous circumstances, WTO panels have not had to make a definitive ruling on the meaning and scope of these exceptions. Yet, suddenly, the security exception lies at the center of multiple explosive disputes, posing a potential threat to the WTO's very existence.

The World Trade Organization's (WTO's) dispute settlement system is facing “unprecedented challenges,” with the current U.S. government waging a “stealth war” on the Organization's Appellate Body (AB). The tactics of this war include procedural objections to the (re)appointment of AB members—those individuals selected to sit in Geneva and rule on trade disputes. Countries have blocked appointments in the past, but the Trump administration's strategy to effectively shut down the AB's ability to hear disputes—by bringing the number of sitting judges below the required three to hear a dispute—represents a new development. In short, the trade regime is dying a slow, piecemeal death, with American challenges “killing the WTO from the inside.” Yet the sources of this crisis are not new. The organization's judges and bureaucracy have deftly managed simmering discontent for nearly two decades, but we have now reached a boiling point. In this contribution, I first describe the sources of the current impasse before discussing how the WTO's adjudicative bodies have sought to address government dissatisfaction in the past and the implications of such judicial responsiveness for reform of the system moving forward.

The United States-Mexico-Canada Agreement (USMCA) differs in a few important ways from prior trade deals signed by the United States but reveals a glimpse of the infrastructure for a new era in international economic governance. This new “Geoeconomic World Order,” will be characterized by great power rivalry between the United States and China, the intense use of protectionist tools to achieve strategic and political goals, and the diminished role of legal adjudication. This approach to trade policy will likely outlast the autocratic and/or nationalistic governments emerging around the world, including the current Trump administration. While international trade law will recover, it will look different in key respects—it will be less multilateral, predictable, justiciable, and enforceable. This more transactional view of international trade law implies a limit on the role of law and an increase in the use of power. It may force a retrenchment of international interdependence and a revival of zones of influence prevalent during the Cold War era.

The world's twenty-year experiment with a rule-based international trading order is most likely ending. Trade wars are raging again for the first time in two decades as World Trade Organization (WTO) members unilaterally impose and counterimpose sanctions. In Geneva, the WTO Appellate Body, whose existence is essential to the functioning of the WTO Dispute Settlement Understanding (DSU), is on a trajectory to shut down in December 2020. For all the fireworks, however, many commentators retain an optimism that the recent events will be a passing phase and that the world will return to a more law-oriented trading system after the present crisis.

In their article, Dan Efrony and Yuval Shany claim that post-Tallinn Manual practice demonstrates that states entertain doubts about the applicability to cyberspace of the rules contained in the Tallinn Manuals. According to the authors, post-Tallinn practice reveals that states treat the application of international law to cyber operations as optional; operate in parallel—legal and nonlegal—tracks of conduct; and engage in gradated enforcement. They also claim that their study invites further research into the implications of state conduct in cyberspace for general international law theory. I will use this last point as a springboard to explain the process of normativization in cyberspace—that is, the process of subjecting states’ cyber operations and behaviors to legal standards. To do this, I will use Oscar Schachter's representation of a normative (legal) order as a three-story building. According to Schachter's metaphor, the third floor is occupied by public values and general policy aspirations; the second floor is occupied by law with its distinctive normative patterns of prescribing, proscribing, and applying; while the ground floor is occupied by the social reality of conduct. The three floors are not isolated but connected by escalators and staircases that go in both directions.

At first sight, the question that Dan Efrony and Yuval Shany ask in their article, A Rule Book on the Shelf?, makes sense. If a group of lawyers writes a legal manual for state legal advisors, the logical follow-up question would indeed be, do they use it? Do these “black-letter rules,” as the Manual itself terms them, actually “provid[e] international law advice” to states operating in cyberspace? Given the Manual's own claim that its “effort [is] to examine how extant legal norms apply” to cyber warfare, one may indeed wonder whether states have used the Manual as intended—as a manual.

In late 2018, the New York Times reported that the U.S. Cyber Command had targeted individual Russian hackers in order to deter them from engaging in conduct that could affect the organization and outcome of the U.S. mid-term elections. This unusual preemptive step suggests that states are looking for creative solutions to safeguard their national interests in cyberspace. But to what extent should their conduct be guided by considerations of international law? In this essay, I explore several key aspects of that central conundrum. I argue that (1) we should see cyberspace as an underregulated (but not ungoverned) domain; (2) a main reason for that state of affairs lies in a unique strategic dilemma innate to the cyber domain; and (3) non-state initiatives, including the eponymous “rule book on the shelf,” have a critical role to play in the development of the law in this area.

Dan Efrony and Yuval Shany's article offers some critically important observations on the reception of the Tallinn Manual 2.0 by states, as well as subsequent state practice and opinio juris with regard to the international use of cyber operations. Based on their case studies, Efrony and Shany conclude that states have largely been reluctant to adopt fully the norms, premises, and analogies offered by the Tallinn Manual. The authors argue that there is a “deep uncertainty about the treatment of cyberspace as just another physical space, like land, air, or sea—over which states may exercise sovereignty or control.” The authors further explain that there is an “uneasy fit” between traditional international law regarding internal and external state power, and the regulation of a unterritorial cyberspace. In other words, cyberspace is a sui generis domain, such that analogies to physical-space domains are often ill-suited, and at times doomed to failure.

The actors in outer space have changed dramatically, involving not only new states but also private entities including start-ups, universities, and other new market entrants. The topics that require regulation have also changed, moving from broad principles to govern the initial stages of space exploration to much more complex questions with greater interests at stake. These topics include new kinds of activities, made possible by fast technological progress and often involving great potential for commercial gain, and also issues of growing concern for humankind as a whole with regard to the continued exploration and use of outer space. This essay looks at how new state participants view established and emerging international legal principles regulating space activities and highlights potential points of agreement or disagreement in that respect.