Global Market Leaders: A Public International Law Overview
From Academia to High‑Stakes Litigation: The Transformation of Public International Law
Public international law (PIL) practice has proliferated over the past 25 years, with increases in litigation (including at the International Court of Justice – ICJ) and advisory work for sovereign states and rapid growth in PIL disputes involving corporations and other private parties.
The geopolitical, human and financial stakes of PIL litigation and advisory work can be of the highest order for the countries and other actors involved. Accordingly, their legal representation has been steadily professionalised such that, today, it is treated by most sovereign states and other parties like any other major litigation. What was traditionally the exclusive domain of the “academic practitioner” has evolved into a sophisticated area of legal practice where complex issues of procedure and evidence typically play as central a role as issues of law. This has spurred growth in multidisciplinary teams, often spanning multiple jurisdictions, led by dynamic and experienced lead counsel at specialist law firms.
What is PIL 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 and sovereign immunity), while a select number of the top firms and individuals will also practice “laws of war” (which include international criminal law and the law of armed conflict).
One of the reasons that PIL 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 ICJ is 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 at the Ministry of Foreign Affairs, Ministry of Justice or elsewhere. Those departments will directly engage practitioners in law firms to co-ordinate and lead major international disputes work, and to advise on other PIL matters behind the scenes, often under the strictest conditions of confidentiality.
Separately, international investors (whether global corporations or individual entrepreneurs) have been involved in hundreds of investment disputes regulated by PIL over the past 30 years, some of which have resulted in the largest damages awards and settlements in legal history. International and regional human rights cases have also skyrocketed, while a number of large PIL disputes have involved “class actions” or “mass claims”. Some large claims, including by investors who have lost everything following illegal expropriations, have been financed by third-party funders.
What are the areas of growth?
State-to-state disputes at the ICJ and 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 the past decade, including as a result of increased geopolitical uncertainty and conflict. 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. Numerous armed conflicts have generated international litigation, including under the Rome (ICC) Statute, the Genocide Convention, the United Nations Convention on the Law of the Sea (UNCLOS) and the Convention on the Elimination of All Forms of Racial Discrimination.
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 being particularly active. With the increasing resistance of some states to payment of substantial monetary awards, the practice of compelling recognition and enforcement of awards via domestic court proceedings has also grown.
What are the challenges for PIL practice?
The pursuit of high-profile public litigation at the ICJ or otherwise – often described as "lawfare" – in order to achieve broader political or other objectives is perceived by some states as transgressing the limits of sovereign consent, which remains a cornerstone of successful PIL dispute resolution. This has led a number of 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 – ie, as encouraging the peaceful resolution of disputes between states that may otherwise result in conflict.
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, including in the form of immediate injunctive relief, or "provisional measures".
The past ten years has seen a decline in the relevance of international investment treaties and investor-state dispute settlement (ISDS), especially in the EU, where member states have rushed to insulate themselves from state responsibility at PIL in the face of claims concerning the withdrawal of renewable energy subsidies and the like. The enforcement of long-standing customary minimum standards, such as fair and equitable treatment, has become practically impossible following interventions by a zealous Court of Justice of the European Union intent on protecting “the supremacy of EU law”, including associated domestic remedies, from perceived PIL interference.
What is the future?
Most likely, the future will see consolidation of the PIL legal services market around the leading specialist practices and individuals, a number of whom are consistently instructed in the largest international disputes. Small specialist law firms and barristers’ chambers will continue to play a central role in this practice area. PIL practices in global firms may continue to reduce in size as ISDS work drops off, particularly in Europe, and due to the competition provided by smaller specialist firms, which are often less hampered by perceived "conflicts", especially in sensitive inter-state disputes.
There may also be a gradual shift in emphasis and outlook in PIL towards the emerging political and economic superpowers in Asia and the so-called Global South, a trend that would only be accelerated by any withdrawal by the United States’ from its leading role in the post-1945 "international rules-based order". This could result in PIL rules and procedures becoming more genuinely global in nature, as others take an increasingly leading role in international legal development and peaceful dispute resolution. For the time being, however, it is likely that the leading global PIL practices will remain located in Europe and North America (especially in London, Paris and Washington DC).