Article from: TDM 5 (2006), in Editorial
TDM has now been operating for close to 4 years. With the end of 2006, we are again publishing a large and highly topical issue on international dispute resolution - including international arbitration but with a focus on our specialty, investment disputes. The issue also contains interesting papers on oil, gas and energy-related disputes. It looks as if the lasting increase in oil prices will give many host states the resources, confidence and desire to renegotiate earlier deals; that is likely to generate a large batch of international disputes in these industries in the years to come.
The issue is introduced by a general feature of great interest by Professor Buergenthal, the American Judge in the International Court of Justice. Judge Buergenthal takes a critical look at some of the features of modern investment arbitration in particular the currently topical question of conflict between the roles of counsel and arbitrator. The greater public focus on investment disputes has made this issue much more sensitive than in commercial arbitration where a simultaneous role as counsel and arbitrator has been much more accepted. Several comments follow up on this issue together with a growing number of contributions on procedural issues.
Professor Sir John Baker, of the University of Cambridge, has allowed us to publish a first installment on his history of arbitration. It provides a historical perspective to our work.
TDM continues with the publication of legal expert opinions submitted in particular in investment disputes. The trend towards transparency should not only cover final awards, but also pleadings and in particular expert opinions. Expert opinions are considered formally to be "objective", but they are arranged by the parties and part of their advocacy. It seems to me that an expert opinion should be much more credible and persuasive if it is of a type and content that is ready to be publicly available during or after the arbitration. Legal opinions and their authors that shun day-light, so to speak, and are not subject to review and debate by the professional and academic communities are likely to become less convincing as tribunals and counsel appreciate that only a transparent expert opinion is a credible one. That process will take time; it will, in technical terms, also probably require the consent of the party which sponsored an expert opinion. I am very pleased that we are able to publish Professor Andrew Lowenfeld's expert opinion in the Genin case.
I am particularly pleased about the large number of case comments. In essence, we will try to get a case comment written on every new investment award of some significance by an academic observer or participant in the arbitration community. It looks to me as if no younger and aspiring member of this community can not afford contributing to TDM. A good case comment is both very helpful for readers and users as investment awards now acquire increasingly a - soft- precedent effect. The fact that most of them are now publicly available increases the precedent effect, but also requires for critical commentary by the interested academic and professional peer community, both for education, but also as an instrument of quality control and gradually evolving greater doctrinal clarity and consistency.
In 2007, we will introduce a much better search system for TDM materials - including case comments an awards. We will also continue to seek to encourage prolific scholars and practitioners to work with us to develop a "Collected Works" Archive of their still relevant works on TDM.