My research focuses in large part on dispute resolution. Arbitration in particular can be assessed on a “micro” level – how does it work; how can it be made better, and on a “macro” level – how does it fit within the general realm of international law, and how does it contribute to the rule of law. I approach these issues from both a practical and a theoretical basis.
On the “micro” level, I have focused on discrete issues because of the need to enhance the efficacy and legitimacy of the arbitral process, whether it be investment or commercial. On the “macro” level, it is clear that to be just, a system must be founded on and must perpetuate the rule of law. There are significant questions about whether investment arbitration in particular satisfies these criteria; there is also significant disagreement among stake-holders about the purpose and goals of investor state dispute settlement and investment law generally. One must keep in mind that a goal of dispute resolution should be to understand the differences that gave rise to the dispute and the reasons underlying them.
I also work on international trade and transnational commercial law matters. Facilitating the cross-border flow of goods and capital is the general goal of international economic law. Developing transnational legal principles such as the Convention on the International Sale of Goods permits international traders to speak a common language and enhances their ability to trade. Public international law pacts such as the WTO Agreements and international investment treaties provide a structural apparatus within which private arrangements can thrive.
My work dovetails with that of McGill’s research team on Private Justice and the Rule of Law. A justification for investment arbitration is that it enhances the rule of law both by resolving disputes via adjudication rather than by force and by contributing the development of international law in ways that regulate and constrain both states and private actors The Fortier Chair permits me to complement and enhance the work of other McGill faculty members by building a team of students, including DCL, LLM and BCL/LLB candidates, and post-doctoral researchers to address theoretical and practical problems related to investment arbitration and international dispute settlement more generally, and to transnational commercial activity. It also permits me to bring arbitration and commercial law scholars and practitioners to the Faculty to enrich the experience of McGill students.
Professor Andrea Bjorklund