The changing role of international arbitration

19 November 2013
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Dr Caroline Foster

The Marsden Fund has awarded Dr Caroline Foster from the University of Auckland’s Faculty of Law a $390,000 grant to study the changing role of the judge and arbitrator under international law.

In recent years the Faculty has had a high profile among New Zealand law schools in securing Marsden funding, with grants for Professor Jane Kelsey in 2009, Dr Richard Ekins in 2010, and this year Professor David V. Williams’ as a co-principal investigator.

Dr Foster’s project, entitled On the Forge: The Role of the International Judge and Arbitrator in the 21st Century, deals with disputes arising over matters such as tobacco control, food safety, horticultural diseases, fisheries, seabed-mining, rare earth production, fracking, renewable energy, biotechnology, nanotechnology, aerial spraying, whaling and major pollution episodes.

It focuses on how international judges and arbitrators are inevitably taking positions on vitally important policy matters, moving beyond the existing conception of the international judicial role that has prevailed for more than a century.

“They are becoming a dimension of international government, in addition to serving as agents of dispute settlement,” says Dr Foster.

Their influence has grown tremendously with so many new international tribunals established since the mid-1990s in trade, investment and law of the sea.

Given their growing influence and importance, it is necessary to study the tools and techniques judges and arbitrators are using, and what these reveal about their changing role.

Accountability and transparency will be another focus of the project, for example asking whether there should be more avenues for appeal of decisions, and whether stakeholders like the wider international community and environmental interests are sufficiently represented.

She says: “If we want a strong public international law system that advances the international public interest, then we have to invest thought in how we design it.”

That requires debate and objective study, and the Marsden funding is making this possible.

The funding will enable Dr Foster to undertake fieldwork interviewing judges and arbitrators in international legal centres like The Hague, Geneva and Hamburg, as well as buying her time to analyse recent decisions.

Her project is being supported by respected international legal scholar Dr Andrew Lang from the London School of Economics and Political Science, who is collaborating on the design of the research.

She intends the research to be published as a book.

Her last book Science and the Precautionary Principle in Courts and Tribunals: Expert Evidence, Burden of Proof and Finality was published by Cambridge University Press in 2011 and reprinted this year.

The book was cited by judges in the International Court of Justice in the Case Concerning Pulp Mills (Argentina v Uruguay) and by counsel in Whaling in the Antarctic (Australia v Japan).

Dr Foster holds an LLM (first class) and PhD from the University of Cambridge and has been teaching international law at the Auckland Law School for 10 years.