PUBLIC INTERNATIONAL LAW: An Introduction to Global Market Leaders

Public international law (PIL) practice has become steadily more important over the past 25 years, with a proliferation of litigation and advisory work for sovereign States and the rapid growth in PIL disputes involving corporations and other private parties. With the growth in PIL practice, the legal representation of sovereigns has been steadily professionalised such that today it is treated by most clients like any other major litigation. What was traditionally the exclusive domain of the “academic practitioner” has evolved into a sophisticated and complex area of legal practice where issues of procedure and evidence (documentary, expert, witness and otherwise) play a central role alongside issues of law. This has spawned the growth in multidisciplinary teams and the need for experienced lead counsel to coordinate such teams and provide a singular point of contact with clients (political leaders, officials or other senior decision-makers) engaged in the litigation, the outcome of which is often critical to countries and private actors involved.

What is public international law and why has it become a global practice area in its own right? 

PIL is traditionally the law that governs relations between sovereign States, or between sovereign States and international organisations. The rules of PIL are comprised mainly of treaties (whether multilateral or bilateral), customary international law and “general principles of law recognised by civilised nations”. They comprise “laws of peace” and “laws of war”. Most law firms and leading individuals listed in the upper bands of the Chambers Global directory will practice “laws of peace” (which include boundary disputes, the law of the sea, international environmental law, international investment law, sovereign immunity or otherwise), while a small number of the top firms and individuals will also practice “laws of war” (which include international criminal law, international humanitarian law and the law of armed conflict).

One of the reasons that public international law has become a prolific practice area is the increasing resort by sovereign States to litigation and other peaceful procedures (arbitration, mediation, conciliation, negotiation etc) as a means of resolving their disputes, whether as an alternative to armed conflict or (sometimes) following or even alongside armed conflict. As a result, the International Court of Justice (ICJ) is probably busier today than it ever has been. Another reason is the proliferation of PIL disputes involving non-State parties, particularly under international investment treaties and global or regional human rights instruments.

Who is engaging the lead law firms and lead individuals? 

Sovereign States are increasingly turning to specialist PIL practitioners and law firms, whether in connection with major disputes or advisory work. Many States have in-house legal departments devoted to international disputes work, whether they are part of the ministry of foreign affairs, ministiy of justice, attorney general’s chambers or otherwise. Those departments will directly engage practitioners in law firms to coordinate and lead major international disputes work, and to advise on other PIL matters which are often highly sensitive and complex.

International investors (whether global corporations or individual entrepreneurs investing abroad) have been involved in many hundreds of investment disputes regulated by PIL over the past 25 years, some of which have resulted in the largest damages awards and settlements in legal history. International and regional human rights disputes have also proliferated, while a number of large PIL disputes have involved “class actions” or “mass claims”. Many large claims, including by investors who have lost everything as a result of illegal expropriations, have been financed by third-party funders.

What are the areas of growth? 

State-to-State disputes at the ICJ, International Tribunal for the Law of the Sea and before international arbitral tribunals (including at the Permanent Court of Arbitration in The Hague) have grown in frequency over recent years. Some of the largest disputes have involved access to valuable natural resources, energy or water. International environmental law has also become a leading PIL discipline as awareness is growing of climate change, transboundary pollution and the destruction of fragile ecosystems, particularly in maritime areas. Incidents of armed conflict have been more commonly accompanied by international litigation, whether under the Rome (ICC) Statute, the Genocide Convention, the United Nations Convention on the Law of the Sea (UNCLOS), the Convention on the Elimination of All Forms of Racial Discrimination or otherwise.

In some regions of the world, international investment disputes also remain a growing practice area, with the International Centre for Settlement of Investment Disputes based in Washington DC particularly active. With the increasing resistance of some States against payment of substantial monetary awards, the practice of compelling recognition and enforcement of awards internationally has grown.

Certain conflicts and terrorist incidents have also given rise to proliferating global and regional sanctions regimes, which engage a sub-set of PIL for which some firms have developed specialist practices to serve corporate and finance clients.

What are the challenges for PIL practice? 

high-profile public litigation at the ICJ or otherwise in order to achieve broader political or other objectives is perceived by some States as transgressing the limits of sovereign consent to dispute resolution. This has led some States to withdraw their consent to binding dispute resolution (for example, by issuing so-called “Article 298 declarations” under UNCLOS, or even withdrawing from treaties altogether). Other States, by contrast, see this development in a positive light, as encouraging the peaceful resolution of disputes between States that may have disparate military or economic strength, but which are treated as equals under PIL. Some international courts and tribunals have expanded the scope of their “incidental” or “ancillary” jurisdiction under the dispute settlement clauses of treaties so as to allow for binding adjudication sometimes in the form of immediate injunctive relief.

The past 10 years has also seen a decline of the relevance of international investment treaties and investor-State dispute settlement (ISDS) in some regions. This has been particularly so in the European Union, where Member States have rushed to insulate themselves from State responsibility at PIL in the face of claims concerning withdrawal of renewable energy subsidies and the like. The enforcement of customary international standards of minimum treatment (eg with respect the fair and equitable treatment standard) has been become very challenging in the European Union, following interventions by a zealous Court of Justice of the European Union intent on protecting “the supremacy of EU law” from perceived interferences by PIL standards and associated dispute settlement procedures.

What is the future? 

Most likely, the future will see consolidation of the PIL legal services market around the leading practices and individuals. Many of those will be located in small specialist law firms or barristers’ chambers, which can offer sovereign State clients flexibility over fees or billing arrangements and are more immune from the actual or perceived “conflicts of interest” which can affect many global firms. The PIL practices in certain large firms in Europe and North America may also reduce in size as a result of a combination of the decline in ISDS work and the increasing competition faced from smaller specialist firms and barristers’ chambers.

Potentially, there will also be a gradual shift in emphasis and outlook in PIL so as to reflect the perspectives of emerging political and economic superpowers in Asia and the so-called “Global South”, which may result in an evolving body of PIL rules and procedures that becomes more genuinely global in nature. For the time being, however, it seems that the leading global PIL practices will remain in Europe (especially London and Paris) and North America (especially Washington DC).