(From the introduction) For more than a decade, international lawyers and international relations scholars have
been fascinated by an ever-increasing number of international courts and tribunals.
These are producing more international case-law, thereby replacing the traditional
scarcity of international law precedents embodied in a few celebrated ICJ and PCIJ
cases. Today, there is a host of frequently highly specialized international dispute
settlement mechanisms like the WTO Dispute Settlement Body, the International
Tribunal for the Law of The Sea, the International Criminal Court, various investment
tribunals acting under The International Centre for Settlement of Investment Disputes
(ICSID) Convention or other arbitration rules. All apply, interpret and probably ‘make’
international law. One question frequently raised in this context is whether these
institutions contribute to the development of a single uniform body of international
law or whether they make ‘their own’ ever more fragmented law. To the extent that
they must apply specifi cally agreed upon rules, such as the WTO agreements, various
bilateral investment protection treaties or the Law of the Sea Convention, etc., this is of
course largely a false problem. In so far as they rely on common rules of international
law, coherence vs. fragmentation does indeed arise and is a serious issue.
Scholars of international law have intensely debated these problems mostly under the heading ‘fragmentation’ of international law or ‘proliferation’ of international courts and tribunals. Gerhard Hafner has significantly contributed to this scholarly debate in a number of articles, and most importantly in a report prepared for the International Law Commission (ILC), which triggered the Commission’s work on fragmentation and was further pursued by Gerhard Hafner’s successor on the ILC, Martti Koskenniemi.
It thus appears appropriate to dedicate a few modest thoughts about these issues to a
great international lawyer with whom I have had the privilege to work at the Department
of International Law and International Relations at the University of Vienna during
the last twenty years. Gerhard Hafner will understand that due to the space allotted
in this liber amicorum, I must limit the scope of my remarks on fragmentation and
proliferation to a specific subfield of international law. He will also appreciate that
the chosen field is investment law and arbitration, which, in many respects, may be
viewed as a test laboratorium of international law where many of the pertinent problems
mentioned above have appeared in particularly visible form.