In most domestic legal systems, the domestic judiciary has great power over the actors (individuals, business, government entities, and so on) it oversees. By contrast, the international judiciary has traditionally had a more limited role, in part because of the central role of states in the governance of the international legal system (Cheng 1983). States maintain control over their participation in international legal disputes, over the power of the international judiciary to interpret and apply the law, and over the enforcement of international legal decisions. In recent years, however, the role of supranational entities that are hierarchically above states has grown, as international courts and tribunals with a moderate degree of authority have proliferated. While the fears of lost sovereignty expressed by many nationalists are greatly exaggerated, it is true that there has been a slight shift of authority from the national to the supranational through the establishment, by states themselves, of various international dispute settlement bodies.

There often exists a gap between public perceptions about how the proverbial sausage is made, and the reality of sausage-making. Just as often, sausage-makers have an incentive to preserve this gap between facts and perception. This chapter considers the analogous incentives of the various sausage-makers in international judicial settings, with a focus on the World Trade Organization (WTO). I show how recent empirical advances can offer an unprecedented glimpse into the sausage-making of international adjudication.

For the first time since its establishment, on 11 December 2019, the Appellate Body of the World Trade Organization (WTO) did not have the requisite number of Appellate Body Members to form a Division to adjudicate disputes. This date had been long anticipated in international trade circles and was precipitated by an unfortunate sequence of events. At the centre of these, was the dissatisfaction of the United States with, inter alia, the functioning of the Appellate Body.

The demise of the Appellate Body as it existed since 1 January 1995 has reverberated far beyond the WTO’s dispute settlement system. It brings to the fore the delicate balance of ideas and opinions that have been at the core of decision making at the WTO since the Uruguay Round.

There is widespread consensus that investor–state dispute settlement (ISDS) is in need of reform. In late 2018, Working Group III of the United Nations Commission on International Trade Law (UNCITRAL), tasked with considering investor–state dispute settlement reform, agreed by consensus that reforming the current system of investor–state arbitration was “desirable” in order to address concerns relating to: (1) consistency, coherence, predictability, and correctness of arbitral rulings; (2) independence, impartiality, and diversity of decision-makers; and (3) costs and duration of proceedings (UNCITRAL 2018). Since then, delegations at UNCITRAL have started looking at potential solutions in order to address the concerns identified (Sachetim and Codeço 2019; UNCITRAL 2019a).

Some years ago, I was invited to a fancy dinner in an elegant city full of international law elites. Gathered at the table were a few current and former judges from international courts, a famous international arbitrator or two, renowned international legal scholars, and the odd family member. The mood was celebratory and the wine flowed. Conversations in French, German, Spanish, and English hung in the air above the long, candlelit table. As a guest of an invited guest, I was not an insider, so I played the part of eager and respectful listener. At least until the end of the evening.

As a diffuse, sprawling, relatively opaque and increasingly polarized legal order, the international investment regime, with its thousands of largely bilateral investment treaties, ad hoc system of adjudication – called investor–state arbitration or investor–state dispute settlement (ISDS) – and a decades-long legitimacy crisis and backlash against its practice make it a challenging phenomenon to accurately describe and assess. It also makes the identification and prioritization of its most problematic and reform-worthy areas of concern difficult to pin down. Without empirical data, the international investment regime has been, and to some degree continues to be, very susceptible to heuristics based on limited information, anecdote, and surface-level policy prescription.

In addition to prescribing laws governing resort to force (jus ad bellum), international law also seeks to regulate the conduct of hostilities (jus in bello). These principles cover, for example, the treatment of prisoners of war, civilians in occupied territory, sick and wounded personnel, prohibited methods of warfare and human rights in situations of conflict. This subject was originally termed the laws of war and then the laws of armed conflict. More recently, it has been called international humanitarian law. Although international humanitarian law is primarily derived from a number of international conventions, some of these represent in whole or in part rules of customary international law, and it is possible to say that a number of customary international law principles exist over and above conventional rules, although international humanitarian law is one of the most highly codified parts of international law. Reliance upon relevant customary international law rules is particularly important where one or more of the states involved in a particular conflict is not a party to a pertinent convention. A good example of this relates to the work of the Eritrea–Ethiopia Claims Commission, which noted that since Eritrea did not become a party to the four Geneva Conventions of 1949 until 14 August 2000, the applicable law before that date for relevant claims was customary international humanitarian law. On the other hand, treaty provisions that cannot be said to be part of customary international law will bind only those states that are parties to them. This is particularly important with regard to some provisions deemed controversial by some states contained in Additional Protocols I and II to the Geneva Conventions 1949. One additional factor that has emerged recently has been the growing convergence between international humanitarian law and international human rights law, coupled with the relevance in this context of the rules of international criminal law. This is discussed below.

Modern historical consciousness is ambivalent towards Medieval and Early Modern conflict of laws. The key to these attitudes is found in classical conflict of laws, and our relationship with it. We – modern private international lawyers – identify as the descendants of the private international lawyers of the late nineteenth and early twentieth centuries. While remaining mindful of our own differences from these immediate ancestors, we also perceive them as having made a decisive break with their own Medieval and Early Modern ancestors. Which raises the question of how distant modern doctrine is from its preclassical counterpart: are we twice removed from our ancestors’ ancestors, or has modern doctrine been moving in a circular pattern?

Having rebuffed Western pressure throughout the 1990s on human rights norms, ASEAN was under little external pressure to enact stronger protections in its 2007 charter whose main impetus was accelerating economic integration to ward off growing rival blocs and the emergence of China. Yet it did so anyway, as liberal and authoritarian norm circles clashed and the liberal circle tipped the scales just enough to ensure its inclusion in the charter. While they could not control the initiative alone, shared norms and metis sufficed to bring an ambiguous commitment across the line.

This chapter goes back in history to explore the roots of Norway and Sweden’s postulated peace traditions and some key features of the two states’ mediation efforts during and after the Cold War. With particular attention paid to Norway’s attempt to take national ownership of the peace nation narrative in the 1990s and the 2000s, the chapter discusses why Sweden and Norway both found peacemaking an attractive tool for national image building, and demonstrates how the quest for a peace nation identity sparked competition and friction between the two states. The chapter uses examples from Guatemala, the Middle East and Sri Lanka to illustrate the possibilities and limitations of Nordic mediation, and argues that although the mediation successes have been relatively few, the peace nation narrative is hard to challenge since its overarching telos is to be the good, spread the good, and fulfill the good.

For all the epistemological distinctness of private international law, a tract or treatise in our field is not unlike other doctrinal works, especially in private law, in the sense that it performs similar functions – and is built on similar premises. This chapter identifies six such themes and doctrinal tools and queries their significance for conflict-of-laws scholarship.