Conflict Resolution in a Changing World Order

Abstract

“Oh! Blessed rage for order, pale Ramon,

The maker’s rage to order words of the sea,

Words of the fragrant portals, dimly-starred,

And of ourselves and of our origins,

In ghostlier demarcations, keener sounds.”

Judge Crawford thus described the rule of law, international law and the world order of our era. In these times of Brexit, ISIS, Nexit, Frexit, and Trump, our world order is in a state of crisis. The world at large has hit the panic button rather than “Keeping Calm and Carrying On”. That panic might lead to a self-fulfilling prophecy with parties moving their conflict resolutions (whether arbitration, conciliation or mediation) elsewhere, but where? Prophecies are already being made about Asia on the rise. Where does Latin America stand in a world that was long dominated by the Old West? A crystal ball could hardly have predicted the Trump and Brexit era that we live in. States attempt to anticipate a future with this newfound reality. Canada is revising the relevance of the WTO when the future of NAFTA is up in the air and Mexico has recently ratified the ICSID Convention: perhaps, on the one hand, to encourage foreign investors to look to Mexico as a thriving place for FDI and, on the other, anticipating collaboration with trading nations without the NAFTA. While the Old West is juggling to grapple with its current reality, Asia continues to be on the rise with its One Belt & One Road initiative. In addition, it seems that Brexit has not impacted the attractiveness of London as a primary arbitral seat. The US, however, has many challenges to address. Some of these challenges are related to the Trump administration, like the impact that recent immigration policies will have on the US as a seat. In addition, unrelated to the geopolitical changes, the US courts have increasingly rendered questionable decisions under the 1958 New York Convention on the Enforcement of Foreign Arbitral Awards. The PEMEX decision - enforcing an annulled award - came with harsh criticism leaving appellate judges in Mexico feeling slapped on the fingers. At the same time, the decision jeopardizes the principle of international comity.[2] Perhaps the Trans-Pacific Partnership is dead with the geopolitical developments in the US; perhaps States will look to BITs and regional treaties more than multilateral treaties; and perhaps the future of investor-state dispute settlement will rest on commercial diplomacy, especially with the PR crisis that international arbitration finds itself in.