In this issue, we provide perspectives on international arbitration—a market occupied by a small, elite group of lawyers and arbitrators and mind-boggling monetary amounts. In our lead story, “How Counsel Shape Arbitral Outcomes,” Harvard Law School (HLS) Center on the Legal Profession postdoctoral fellow Tobias Traxler provides an adapted excerpt from his forthcoming Cambridge University Press book, exploring the influence that lawyers have on investor-state arbitration (or investment treaty arbitration) specifically. Traxler writes:
It may not be surprising that the “haves”—often large corporations or highly developed states—also “come out ahead” in investment treaty arbitration. Indeed, the systems’ lack of transparency may have “served to entrench the advantages of insiders over outsiders.” The investment treaty system’s rules—particularly unwritten procedural rules and rules developed through case law—tend to be readily apparent to experienced counsel but difficult or impossible to ascertain for outsiders. In effect, this may have significantly increased the benefits that the “haves” can garner from engaging counsel who have frequently acted in that capacity before. The fact that this imbalance is unsurprising, however, does not detract from the fact that it is deeply troubling.
In two supporting stories, we explore international arbitration in the context of legal education and by mapping its evolving landscape. In “An Unlikely Underdog on the World Moot Stage,” we document the HLS team preparing to compete in the Willem C. Vis International Commercial Arbitration Moot. Unlike many European teams with a storied tradition of competing in the “Vis,” as it’s affectionately known, the HLS team has bootstrapped themselves. “I think if you ask many people at Harvard what the Vis Moot is, they might not know,” says Ben Mays, an LLM student on the team who competed in 2024 as an undergrad at the University of Cambridge. At Cambridge, he says, there is a cache and an understanding of the time commitment if you say you’re competing in Vis. “Here at Harvard, it’s very much a grassroots campaign,” he explains.
In “Mapping International Arbitration,” we ask whether the geographical landscape of international commercial arbitration is shifting, if at all. “‘The widening and ‘flattening’ of international arbitration—more seats, more institutions, more diverse participants—is one of the most important developments of the past decade,” says Catherine Rogers, professor at the University of Bocconi. “But, it’s almost impossible to capture statistically or empirically.”
We conclude with an interview with Philippe Sands, Professor of the Public Understanding of Law at University College London and Samuel LLM ’55, SJD ’59 and Judith Pisar Visiting Professor of Law at Harvard Law School. Sands reflects on the concept of “double-hatting” in investor-state arbitration—where the same person appears as an arbitrator in one dispute and counsel in another with similar issues—calling attention to the potential legitimacyconcerns that arise. He also discusses career pathways for those entering the field, and how young lawyers can enter a practice area only growing in size, scale, and complexity. “It’s incredibly important to be supportive of the next generation because they are the ones to whom we have entrusted the responsibility of maintaining the rule of law in international matters,” says Sands.
