The World Is Not Enough

AT LEAST NOT THE WORLD OF JAMES BOND. IF THE MOST FAMOUS MOVIE SPY HAD BEEN A JURIST, HE WOULD HAVE DEALT WITH INTERNATIONAL ARBITRATION. DON'T BELIEVE IT? READ THIS ARTICLE, AND TAKE A LOOK AT THE WHOLE SAGA

by Catherine A. Rogers, Full Professor of Domestic and International Arbitration, Bocconi University

If James Bond practiced law, it would be international arbitration. Don’t believe it? Just consider how many international arbitrations would make a great plot for a James Bond movie.

For example, in a plot stranger than any 007 fiction, an Israeli investor in one case found out the hard way that The Spy Who Loved Me can be a dangerous double-agent. That case brought together a buccaneering tycoon investor who owned a lavish Italian yacht, an aging (now deceased) Guinean dictator, his most recent of four wives, the largest iron-ore resources on the planet located in one of its poorest countries, the FBI, a wiretapping sting operation, philanthropist George Soros, a French businessman, armies of lawyers, several Swiss investigators, racketeering charges in New York, a McMansion in Florida, and allegations of South African secret agents interfering in an African election.
In 007 movies, the audience knows from the opening credits that Bond is on the side of good, battling for nothing less than the survival of the free world.
Today, however, critics have flipped the script. Critics claim that international arbitration is a dark villain that subverts the common good in favor of mustache-twirling corporate conglomerates and their maleficent financiers.

In light of these criticisms, a Spectre is hanging over international arbitration. Like a Thunderball barreling downhill, these criticisms are also gaining momentum. Beyond investment arbitration, a leading jurist in England and Wales cast himself as Dr. No by arguing that international arbitration undermines the development of the common law in commercial disputes.

Taken together, these complaints are not necessarily a Skyfall. But they should scare The Living Daylights out of those who believe international arbitration is an important form of global governance and an essential mechanism for international trade.

Unrivaled by any viable alternatives, international arbitration had historically rested on a dismissive Live and Let Die approach to criticisms. But as mediation and forum selection clauses become more viable and a global investment court threatens to displace investment arbiration, we should be shaken, not stirred, into action.

From Russia with Love, the $50 billion award in Yukos, is a good illustration. Although the biggest award in history, it is at least as well-known for bringing the cameras in for a close-up on alleged tribunal secretary excesses. For the audience, it seems difficult to understand how everyone failed to foresee the problems.

Some dismissed the case as anomalous, but most instead took the position that that we should Never Say Never Again. In response, new sources were created to establish clear guidelines to limit the role of tribunal secretaries.

What does all this mean for international arbitration? It does not require a Goldeneye to see the answer. It merely requires that—in tending to the needs of clients, organizations, institutions, and their own professional goals—arbitration specialists must look beyond their most immediate, short-term self-interests. They should consider how their individual actions affect the system’s legitimacy, and hence their long-term enlightened self-interest.
It does not do anyone—not lawyer, not client, not arbitrator, not outside funder, and not institution—any good to have their case become the poster child for some endemic problem or controversy. When one actor in a particular case does not have the wherewithal to see or act beyond immediate strategic considerations, others have a longer-term self-interest to step in.

Despite increasing criticism of international arbitration, it is No Time to Die. Instead, a Quantum of Solace can be taken from the fact that those professionals active in international arbitration care deeply about the field’s real and perceived legitimacy. Internal reforms demonstrate a collective impulse to address problems through self-reassessment, internal recalibration, and self-regulation.  These reforms ensure that, for international arbitration, Tomorrow Never Dies.