ICSID arbitration and the importance of public accountability of a private judicature - A Roman Law Perspective

International Community Law Review

Volumn 9, Issue 1, 2007, Pages 59-102

  Sourgens, Frederic Gilles ^a  

^a Attorney at Law ^*

Author keywords

Arbitration; ICSID; Investment law; Metalclad; Roman civil procedure; Roman law

Indexed keywords

EID: 34547725259     PISSN: 18719740     EISSN: 18719732     Source Type: Journal    
DOI: 10.1163/187197407X192923     Document Type: Review

References (379)

1. For example see Hugo Grotius, De Iure Belli Ac Pacis 2.8.2-3 [hereinafter De Iure Belli] : "Feras simul atque naturalem libertatem recipient, nostras esse desinere aiunt Romani Juristi; Atqui in rebus omnibus aliis a possessione quod incipit dominium, non ideo amissa possession amittitur;" (discussing the modes of acquisition of property under the law of nations within the framework of the Roman law of occupancy); compare Gai. 2.67: "Iraque si feram besrtiam aut uolucrem aut piscem ceperimus, simul arque captum fuerit hoc animal, statim nostrum fit, et eo usque nostrum esse intellegitur, donec nostra custodia coerceatur; cum uero custodiam nostram euaserit et in naturalem se libertatem receperit, rursus occupantis fit, quia nostrum esse desinit: naturalem autem libertatem recipere uidetur, cum aut oculos nostras euaserit, aut licet in conspectu sit nostra, difficilis tarnen eius persecutio sit."
2. Cicero gives us good example of the private structure of the law and legal learning. De Oratore I shows the delicate interplay of the civil law with legal pleadings. De Oratore, 1.180 is a typical passage extolling Roman legal learning. The entire dialogue is set around a. group of friends discussing rhetoric. It was in such, settings that to a great extent legal learning was passed, down. "Cum Q. Scaevola, aequalis et conlega meus, homo omnium et disciplina iuris civilis eruditissimus et ingenio prudentiaque acutissimus et oratione maxime limatus arque subtilis atque, ut ego soleo dicere, iuris peritorum eloquentissimus, eloquentium iuris peritissimus, ex scripto resramenrarum iura, defenderet negaretque, nisi posrumus et narus et, ante quam in suam tutelam veniret, morruus esset, heredem eum esse posse qui esset secundum postumum et narum et mortuum heres instirurus; ego autem defenderem eum hac tum mente fuisse, qui testamentum fecisset, ut, si filius non esset, qui in suam tutelam veniret, M Curius esset heres, num destitit merque nostrum in ea causa auctoribus, in exemplis, in testamentorum formulis, hoc est, in medio iure civile versari?"
3. Hugo Grotius, De Iure Belli 2.15.5
4. An historical clarification here might be in order. Even in Roman law, the public law of nations was very much in the hands of the sovereign dirough public engagements and treaties. Id. (citing Ulpian, D 2.14.5). Yet, public international law as understood, today still draws more on private Roman law than its public laws; hence, in explaining the law of nations, Grotius in Book II of the De Iure Belli starts from the Roman law concepts of contract, property and delict to finally develop the public law. Hence, the background against which public law developed in the Western world is private rather than public law. The means by which it finally became law however remained with the sovereign and the power of shaping custom and making treaties.
5. On the development of international economic law, see generally Andreas Loewenfeld, International Economic Law (2003). The book focuses on questions of trade law more than on issues of investment law. Yet, it gives a wonderful overview of the field of international economic law with, a strongly positive outlook on the multinational organizations that currently make up the framework in which, the law develops.
6. On international investment law, see generally Stephan Kinsella and. Noah. Rubins, International Investment And Political Risk (forthcoming 2004).
7. Metalclad Corp. v. United Mexican States, ICSID Case No. Arb(AF) /91/1, reprinted in 401.L.M. 36 (2001).
8. Idem.
9. l0) William S. Dodge, International Decisions: Waste Management Inc. v. Mexico, 95 A.J.I.L. 186, 191-192 (2001).
10. This Essay uses the comparative method outlined by Prof Kerameus. Prof. Kerameus makes detailed use of a two methods of comparative law - one idealist, the other pragmatic - to analyze European procedural intergration. The method is particularly apt to analyze problems of civil procedure due to its careful split of civil procedure into rules which have a value element and those that are merely technical rules aiming at a greater efficiency in the admistration of justice. This Essay will not be able to apply Prof. Kerameus' method in great detail due to special constraints. Such a. detailed analysis would be for a future paper. See Konstantinos D. Kerameus, Political Integration and Procedural Convergence in the European Union, 43 Am. J. Comp. L. 401 (1995).
11. For the importance of a historical link between two legal systems in drawing comparative conclusions, see Konstantinos Kerameus, supra note 11, at 402.
12. This Essay in that regard attempts to draw a. picture of international economic law which is inspired by Professor Dominice's treatment of natural law and its return to the fore in international law by the means of judge made, "prétorien" customary law. See Christian Dominice, L'ordre Juridique Internationale Entre Tradition Et Innovation 31-43 (1997). That there is a move away from pure positivism in the realm of investment law has been noticed by some of the most eminent scholars in the field.
13. See Andreas F. Lowenfeld, Investment Agreements and International Law, 42 Colum. J. Transnat'l L. 123 (2003) (arguing that the law of expropriation found in BIT and the ICSID Convention now has reached the level of customary international law binding non signatories). It is hence not too far fetched to argue for a. return of natural law in the field of international economic law. To put this position in the context of Roman law, the natural law in Rome evolved largely from the discussion, argument, and invention - in short in the discourse - of the jurists.
14. Alan Watson, Roman Law And Comparative Law 100 (1991). This juristic discourse sets the boundaries of normativity at Rome and in the Republic would have been reflected in the Praetorian Edict. Interestingly, in this sense, the Edict and the juridical discourse were in a state of co-dependence: the Edict was only the correct reflection of the law if it follows the overarching consensus of the jurists. Yet, the jurists' main means of legislative power was the inclusion of their discourses in the Edict. In this regard, there developed and. interesting and annual flow of ideas and maxims in both directions, from Edict to the juridical discourse as well as the reverse.
15. A functional similarity is the conditio sine qua non of an ideal comparison between two legal regimes. See Konstantinos Kerameus, supra note 11, at 401. My stronger underlying thesis relies on a drift of contemporary international law away from its positivist understanding back towards a natural law basis. See Christian Dominice, supra note 13. If that drift could be substantiated then the functional parallel between the Roman Law and international law stands the stronger. Roman Law inherently concerned, itself with the sovereign stabilization of natural law in its civil and. foreign jurisprudence. D. 1.1.6pr; Gai. 1.1. Both these passages quarrel with the extent to which Roman Law is derived or different from natural law. Typically, the civil law is distinguished from natural law because of its sole application to the Roman people and due to its specific law making mechanisms. D. 1.1.6pr-1.1.7pr; Gai. 1.1-1.2. Yet, as Cicero correctly points out this distinction is too specific to ultimately prevail. The source from which the positive law of Rome is drawn remains avowedly that of natural law. Its rationality and science allows the other participants in the law to make to fulfill their allotted tasks. DeLeg. 1.16-1.17. As an aside, this also allows one to understand the institution of the jurist in Roman law. See discussion infra.
16. Alan Watson, Roman Law And Comparative Law 100 (1991). Alan Watson retraces this condition of the law back to the Roman Republican period, and makes special mention of the praetorian system. As Alan Watson correctly points out, the Roman problem of private lawmaking is still with us today. This Essay uses this historical connection to make a functional comparison between the Roman solution to private lawmaking and the current international regime in the field of investment law. Yet, as we shall see, he also exaggerates the extent of independence of the jurists from the state, clouding one of the main strong points of the Roman legal system: the cooperation between erudite jurists and. the might of the state.
17. Andreas Loewenfeld, International Economic Law 387-414 (2003).
18. Statute of the International Court of Justice, Art. 38.
19. International investment law concerns relationships between the state and non-state actors such as corporations, banks or individual investors. Yet, such investors were generally connected to a state with an interest in the region, such as a formal colonial power. In many ways, investors were an integral part to the colonial enterprise. The political overtones of international investment law can therefore be disentangled from the political history of the post colonial world with, great difficulty. It is in this context more than any other, that international investment law has come to full maturity as a body of law.
20. The connection between Roman law and international law has long been established. For a good explanation of its historical provenance, see A. Pillet ed., Les Fondateurs Du Droit International(1904).
21. Hugo Grotius, De Iure Belli, 2.15.5.
22. Hugo Grotius, De Iure Belli 2.15.5. This statement has been disputed by several scholars with, regards to its legal force during the later periods of the Republic. See discussion infra note 23.
23. Idem
24. Id.; This position has also found its way into Gaius with regards to chattel, see Gai 2.69 (establishing that the animals captured from foreigners or enemies had been reduced to one's possession by natural right); with regards to liberty, one this position has been codified in the Digest. D. 1.5.5.1 (codifying the position that those foreigners whom one has captured are one's slaves under ius gentium). In reading both Gaius and the Digest, it is important to bear in mind the possible double meaning of "hostis" used by both works meaning foreigner as well as enemy. As Grotius correcdy points out this meaning could also carry forward into legal texts. Hugo Grotius, De Iure Belli 2.15.5. Both meanings are discussed in Cicero: Hostis enim apud maiores nostras is dicebatur, quern nunc peregrinum dicimus. Off. 1.12.37. Grotius echoes him in his treatment of the matter: "Hinc in barbaros praedam exercere laudatum Aristoteli, et ipsa vpx hostis, veteri Latio nihil nisi externum significabar." Hugo Grotius, De Iure Belli 2.15.5. The discussion of the underlying doctrine has led. to a great deal of commentary. It is confirmed, by IItudus Prichard, David Nasmith, Ortolan's History Of Roman Law 180-182 (1871). While Professors Jolowicz and Nicholas correctly doubt the general application of this legal doctrine, it remains the undisputed default position for the treatment of foreign property. H. F. Jolowicz and Barry Nicholas, Historical Introduction To The Study Of Roman Law 102 (3d ed. 1972). [hereinafter jolowicz and Nicholas, Roman Law] See also Phillipson, The International Law & Custom Of Ancient Greece And Rome, y A. 1 210-301. (1911) (explaining in depth the treatment of foreigners under Roman law); Emilio Betti, Diritto Romano, vol. 1 26-34, 97-100 (1935) (presenting a mixed treaty and natural law basis for the formation of ius gentium from commercial necessity, treaty law and general natural law principles and enumerating the classes of foreigners under Public Roman Law).
25. Phillipson, supra note 23, at 21.3, 217-226.
26. Hugo Grotius, De Iure Belli, 2.15.5. See also jolowicz and Nicholas, Roman Law, supra note 23, at 102-1.03;
27. Phillipson, supra note 23, at 217-226.
28. Initially, investment law in Rome did not follow the Roman procedural paradigm. Historically, it evolved out of treaty practice. Max Radin, Handbook On Roman Law 105 (1927). These treaties would have been interpreted and applied to all foreigners to whom they were applicable by the peregrine praetor.
29. Jolowicz and Nicholas, Roman Law, supra note 23, at 103. The procedural device for such treaty based, actions differed from general Roman civil procedure in its reliance on the recupercatores - a panel of jurors required by early treaty law. Id. at 102, 203n.7. The praetor here would rely on a developing corpus iuris gentium. Id. This law would follow Roman treaty law as well as develop the doctrines by reference to general principles of law applicable to similar cases, Id. This means that the Roman law procedural device which this Essay advocates in the context of modern investment law was indeed employed in ancient Rome to cover those disputes - the Roman State had a distinctly tighter grip on its laws covering alien property than we do today.
30. See also Phillipson, supra note 23, at 217-226, 267-272.
31. Interestingly, the question of the rights of alien to hold property did not create a lot of philosophical interest. While Plato's dialogues often use rich foreigners as a character, they do not seem to tackle head on the question of rights to private property. This should not come as a surprise after the glaringly unfriendly treatment private property receives in The Republic, however. One of the few interesting axioms of moral obligation has come down to us from Aristotle on the question of slavery. Aristotle gave a surprisingly stark answer: one should certainly welcome the economic and personal subjugation of nonGreek foreigners, yet spare those of the same cultural origin from the toils of slavery and expropriation. One should hence be aware of the emphatic difference between the ancient origins of natural law theory and its modern counterparts with regards to the question of private property. The Lockean ideal for example relies greatly on the natural right to hold private property. John Locke, Second Treatise On Government (Peter Laslett, ed. 1979). This ideal was not shared in antiquity. Pol. 1.8.
32. Charles Maynz, Cours De Droit Romain 134 (1870) (explaining the praetorian power in peregrine law to shape the law according to principles of equity).
33. Francois L. Ganshof, The Middle Ages, A History of International Relations 159-160, 320-322 (1971).
34. For an interesting fictional account of international trade and its medieval and rinascimento structure, see Michelle Lovric, The Floating Book: A Novel of Venice (2004);
35. for a quick primer on the law of treaties in the Middle Ages and the skeleton of international law at the time, see Theodor Meron, The Authority to Make Treaties in the late Middle Ages, 89 A.J.I.L. 1 (1995).
36. Francois L. Ganshof, supra note 29, at 160.
37. Id at 159.
38. Id.
39. Id.
40. Id. at 160, 320-322.
41. Hugo Grotius, De Iure Belli 2.15.5. While Grotius was not the first modern writer attempting a receuil of international law, he is generally credited with being the first writer to have authored a consistent scientific work on the subject. In the words of Maitre Basdevant: "Mais Grotius ne présente pas le simple résumé des solutions proposées par ses précurseurs; il ne pas seulement I'expression, fut-elle la plus parfaite de l'élaboration scientifique des siècles antérieures. Ce prophète de la justice internationale, comme l'appelle M. Walker, marque le point de départ de tout le mouvement doctrinale qu' il a suivi. Il a exercé a cet égard., une influence qui, bien que plus restreinte, est analogue àcelle d'Aristote aux siècles précé dents." Basdevant, Grotius, in A. Pillet ed., Les Fondateurs Du Droit International 263(1904). For an historical introduction to the major thinkers of early international law, read its previous chapters.
42. Id. Grotius' treatment of the question makes very clear why a conceptual difference developed between the Roman and the modern conception. Grotius contrasts the Roman perspective with the JudeoChristian influence on the law. While he establishes that Jewish law was equally as unforgiving to strangers as the Roman precedent, he then introduces the pivotal Christian universal duty of kindness. While Grotius still maintains that this duty is one first and foremost towards fellow Christians, it nonetheless is also applied to those outside the faith, where such an application does not empower the foreign religion too greatly.
43. The probably best known work of enlightenment philosophy on international relations and international law certainly suggests a very different perspective on the universality of human rights; moral imperatives are valid against all of humanity, not only to those with whom we share in a political community. Immanuel Kant, Kritik Der Praktischen Vernunft, Werkausgabe vol. 7 (Wilhelm Weischedel ed., Suhrkamp Verlag 2000);
44. Immanuel Kant, Zum Ewigen Frieden, in Schriften Zur Anthropologie, Geschichtsphilosophie, Politik UndPaedagogik, Teil 1, Wekausgabe vol. 11 (Wilhelm Weischedel ed. Suhrkamp Verlag 2001);
45. the opposite position could still be implied in the Humean moral and political theory. David Hume, Enquiries Concerning Human Understanding and Concerning The Principles of Morais (L. A. Selby-Bigge & P. H. Nidditch eds. 1975).
46. Here, the main question was the belligerent status of the foreign seized vessel. A quick and ready synthesis of the problem is discussed in Gordon Baldwin, Book Review and Note: The Prize Game: Lawful Looting on the High Seas in the Days of Fighting Sail by Donald A. Petrie, 94 A.J.L.L. 608 (2000). For a link between the law of war and investment rights in Grotius' intellectual development, see C. G. Roelofsen, "The Long Seventeenth Century" and the Elaboration of a European States System, 17 Quinnipiac L. Rev. 35, 52-53 (1997).
47. After all, it enacted very early on a remedy for foreigners against the piracy on the High Seas - the Alien Tort Claims Act, today codified at 28 U.S.C. §1350 (2000).
48. U.S. Constit. Fifth Amendment.
49. Nowhere is this precedent more clearly established than in the recent flurry of antiterrorist activity in the United. States. While clearly laudable and necessary, expropriations of foreign property belonging to terrorist organizations in the U.S. becomes very dubious when it proceeds not on an international exception from the protection of property but from the simple judicial pronouncement that a certain class of foreigners - terrorist or not-does not have any due process right and hence no legal right to their property in the U.S. See R. Colgate Selden, The Executive Protection: Freezing the Financial Assets of Alleged Terrorists, the Constitution, and Foreign Participation in U.S. Financial Markets, 8 Fordham J. Corp. & Fin. L. 491 (2003).
50. This development took the shape in a rights discourse. This rights discourse was driven by underlying understanding of property and contract law. At the very center of any such discourse is the right to hold property and its free alienation. The early modern jurists here were still of the mindset that it is possible to fully alienate one's own right to liberty and that of one's children hence giving rise to the sovereign. Grotius, De Iure Belli, 1.3. This understanding also included the clear power of eminent domain vested, in the sovereign. Id. While our modern conception of civil and property rights clearly derives from this early conception, it had a long way to go. For a fuller treatment of the development of these theories see Richard Tuck, Natural Rights Theories (1981). Professor Tuck discusses these theories from their medieval origins and the interesting theological dispute between the Franciscans and Dominicans over the theological possibility of holding private property at all. He then traces the rise and fall of natural rights theories through to Thomas Hobbes and the end of the English Renaissance. A work instrumental in understanding the rise of modern legal thought is Professor Skinner's seminal tour de force on the origins of modern political theory. Quentin Skinner, Foundations of Modern Political Thought (1979).
51. Compare Grotius, De Iure Belli 1.3 and 2.15. The logic of Grotius' theory clearly establishes that the sovereign has a clear power of eminent domain over his citizens by virtue of their citizenship. This logic is contrasted by the clear rejection of the right of the sovereign to expropriate foreigners of their property simply by virtue of their foreign citizenship. Hence, the sovereign here already incurs a greater duty towards aliens and their property than towards his own citizens. Interestingly, as we have seen above, the Roman's had the inverse position; it was easier to deprive a foreigner of his possessions than it was to do the same to a Roman citizen.
52. Grotius, De Iure Belli 2.1.
53. Grotius, De Iure Belli 2.1 can also be read to suggest that there are certain forms of takings which do not warrant the use of force to diwart them off. In any case, where the infraction would not be sufficiently serious, there is simply no prudential justification to go to war, as discussed in Grotius, De Iure Belli 2.24. The breach of a treaty obligation is however ever so much more serious. It also clearly establishes the bounds in which a foreigner may by right hold ownership over objects in the signatories' sovereign territory. In the final consequence therefore, as will be discussed infra, the degree and manner in which investment could take place and which types of holdings and expropriations were internationally legal remained, very much in the framework of sovereign interaction and not at all in the sphere of judicial interpretation of general maxims of natural law.
54. Grotius, De Iure Belli 2.15.
55. See Declaration des Droit de L'Homme et du Citoyen; U.S. Constit., Fifth Amendment. 48) The Glorious Revolution put the political spark to the intellectual powderkeg. It was this Revolution, which led to the rise of the two most studied figures of modern political philosophy: John Locke and Thomas Hobbes. These two figures, or more importantly, the vulgate of their ideas, had an enormous impact on the later American and French revolutions. While Jean-Jacques Rousseau certainly held a powerful sway over the intellectual leaders of both revolutions, he himself was beholden to the intellectual head start made in England. It is hence the most overlooked of the European Revolutions which had the deepest impact on the European cultural and political landscape - the more ironic is the current English suspicion towards the continent for fear of an imperialist imposition of a foreign political culture.
56. For a concise history of the intellectual development of the age, see Chris Hill, The World Turned Upside Down (1991). On the influence of Lockean ideas on the continent,
57. see Peter Laslett's introduction to his edition of the Two Treatises.
58. John Locke, Two Treatises On Government (Peter Laslett, ed. 1988).
59. John Milton, Areopagitica, in Stephen Orgel ed., John Milton The Major Works (OUP 2003).
60. For a detailed account of the intellectual history of the Glorious Revolution, see Chris Hill, The World Turned Upside Down (1991).
61. John Locke, Two Treatises ofGovernment (Peter Laslett, ed. 1988).
62. One exception to this rule is the use of treaties of friendship, commerce and navigation. Such treaties would summarily pass over questions of property rights. The Roman parallel is again very interesting: this selfsame instrument was already in use in the Republic. Grotius' reprise of the treaty form in his De Iure Belli firmly established it in modern international law. Grotius, De Iure Belli, 2.15.5.
63. A good, overview of the history of investment law can be found in Andreas Loewenfeld, International Economic Law 387-41,3 (2003).
64. This doctrine is known as the Calvo doctrine. For a. discussion of the doctrine see Donald Shea, The Calvo Clause; A Problem of Inter-American And International Law and Diplomacy (1955);
65. Loewenfeld International Economic Law 387-413 (2003).
66. G.A. Res. 1803 (XVII), U.N. GAOR, 17th Sess., Agenda Item 39 at paragraph 4, U.N. Doc. A/ RES/1803 (XVII) (1962), reprinted in 2 I.L.M. 223 (1963);
67. G.A.Res. 3171 (XXVIII), U.N. GAOR, 28th Sess. at 3, UN doc. A/9030 (XVIII) (1973);
68. G.A.Res. 3201 (S-VI), U.N. GAOR, Sixth Special
69. Sess., agenda, item7 at 6, UN doc. A/RES/3201 (S-VI) (1974), reprinted in 13 I.L.M. 715 (1974);
70. Charter of Economic Rights and Duties of States, G.A. Res. 3281 (XXIX), U.N. GAOR, 29th Sess., Agenda Item 48, U.N. Doc. A/RES/3281 (XXIX) (1974), reprinted in 141.L.M. 251 (l975).This resolution did not have binding force under international law, as it was little more than a General Assembly resolution. Yet, it gave international legitimacy to the Calvo doctrine - stating that foreign property was not entitled to preferential treatment and could be made subject to eminent domain and confiscation under the provisions of national law without international legal consequences. Ironically, this doctrine earlier had received the imprimatur of the United States by way of a very misguided Supreme Court decision in Banco Nacional de Cuba v. Sabbatino, holding that the courts of the United States would not sit in judgment over the sovereign acts of a foreign nation.
71. See also United States v. Belmont, 301 U.S. 324 (1937) (holding that the comity of nations requires the U.S. courts not to reexamine the acts of confiscation engaged in by the U.S.S.R.);
72. United States v. Pink, 315 U.S. 203 (1942) (holding that no U.S. state could interfere with the Litvinov agreement which essentially settled all relevant property claims between the U.S. and the U.S.S.R.);
73. generally see A. Lowenfeld ed., Expropriation in the Americas 1971;
74. Litvak & Maule, Forced Divestment in the Carribean, 27 Int'l J 501 (1977);
75. Rood, Compensation for takeovers in Africa, 11 J. Int'l L. & Econ. 521 (1977);
76. Eric N. Baklanoff, Expropriation of U.S. Investment in Cuba, Mexico, and Chile (1975);
77. On the concept of permanent sovereignty and rights to oil deposits in international law see David M. Ong, Joint Development of Common Offshore Oil and Gas Deposits: "Mere" State Practice or Customary International Law? 93 A.J.I.L. 771 (1999);
78. Loewenfeld, International Economic Law 387-413 (2003).
79. see Vratislav Pichota, The 1981 U.S. -Czechoslovak Claims Settlement Agreement: An Epilogue to Postwar Nationalization and Expropriation Disputes, 76 AJIL 639 (discussing the 1981 agreement in the context of the agreements struck with Bulgaria (July 2, 1963), Hungary (May 29, 19.56 and March 6, 1973), Poland. (July 16, 1960), Romania (March 30, 1960), and Yugoslavia. (July 19, 1948 and Nov. 5, 1964)); See also Rode, The American-Polish Claims Setdement Agreement of March 30, I960, 55 AJIL 452 (1961);
80. Christenson,U.S.-Rumanian of March 30, 1960, 55 AJIL 452 (1961);
81. Lillich, The United States-Bulgarian Claims Settlement Agreement of 1963, 58 AJIL United States-Bulgarian Claims Settlement Agreement of July 2, 1963, 4 VA. J. Int'l L. 187 (1964);
82. Peselj, The New Yugoslav-American Claims Agreement, 59 AJIL 362 (1965);
83. Sutton, American Claims Against Yugoslavia, 3 Int'L Law. 262 (1969);
84. This rule has become known as the Hull formula, and stems from a letter in 1942 from Cordell Hull, the United States Secretary of State, to the Mexican government demanding fair compensation for the expropriation of agrarian property. Green H. Hackworth, 3 Digest of International Law 658 (1942). For its incorporation as well as the general development of U.S. bilateral investment treaties (BITs) in their formative period, see Kenneth J. Vandevelde, The Political Economy of a Bilateral Investment Treaty, 92 Am. J. Int'l L. 621 (1998).
85. For a list of BITs in force today, see www.worldbank.org/icsid/ treaties/treaties.htm (last visited November 26, 2004). The regional trade blocs making explicit reference investment law are the E.U. and NAFTA. ASEAN and MERCOSUR also have much weaker investment implications. The Arab League interestingly also provided investment guarantees from its inception.
86. This is amply reflected in the growing docket of the main organ of investment conflict resolution, the International Center for the Settlement of Investment Disputes. See www.worldbank.org/icsid/cases/ cases/htm (last visited November 26, 2004).
87. On the initial drive to conclude BITs in the U.S., see Vandevelde, supra note 57.
88. See e.g. Kenneth). Vandevelde, The Political Economy of Bilateral Investment Treaties, 92 Am. J. Int'l L. 621 (1998);
89. Susan D. Franck, The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law through Inconsistent Decisions, 73 Fordham L. Rev. 1521, 1527 (2005). 42)
90. 1994 Model Bilateral Investment Treaty of the United States, Article IX, Section 3, reprinted at 1997 BdielAdLexis 6 (1997). Azurix orp. v. Argentina, Decision on jurisdiction ICSID Case No. ARB 01/12 (2003), available at 43 I.L.M. 262 (2004)(holding that jurisdiction exists for a claim against Argentina. under the provision of BIT even in the face of a facially contradictory forum selection clause); Stanimir A. Aleksandrov, Introductory Note to International Center for the Settlement of Investment Disputes (ICSID): SGS Societe Generale de Surveillance S.A. v. Pakistan, 42 I.L.M. 1285, 1287 (2003); SGS Societie Generale de Surveillance S.A. v. Pakistan, ICSID Case No. ARB/01/13 (2003), available at 42 I.L.M. 1290 (2003)(holding that since an investment within the purview of the relevant BIT between Switzerland and Pakistan had occurred, it had jurisdiction even though a forum selection clause in the agreement itself prima facie indicated otherwise).
91. 1994 Model Bilateral Investment Treaty of the United States, Article IX, reprinted at 1997 Bdiel Ad Lexis 6 (1997)
92. Again, its current case load is an unmistakable sign of its importance. See www.worldbank.org/icsid/ cases/cases/htm (last visited November 26, 2004).
93. ICSID Arbitration Rules, Chapter IV, available at http://www.worldbank.org/icsid/basicdoc/basicdoc.htm (last visited May 23, 2005);
94. compare Redfern & Hunter, Law and Practice of International Commercial Arbitration (3d ed. 1999).
95. ICSID Arbitration Rules, Chapter IV, Rules 36-47, available at http://www.worldbank.org/icsid/ basicdoc/basicdoc.htm (last visited May 23, 2005)
96. ICSID Arbitration Rules, Chapter IV, Rules 31-32, available at http://www.worldbank.org/icsid/ basicdoc/basicdoc.htm (last visited November 26, 2004).
97. ICSID Arbitration Rules, Chapter IV, Rules 33-37, available at http://www.worldbank.org/icsid/ basicdoc/basicdoc.htm (last visited November 26, 2004).
98. ICSID Arbitration Rules, Chapter IV, Rules 46-5,5, available at http://www.worldbank.org/icsid/ basicdoc/basicdoc.htm (last visited November 26, 2004).
99. While ICSID forms part of the Worldbank, ICSID arbitrations themselves are not court proceedings. They fit the mold of voluntary arbitration proceedings, not that of a sovereign judiciary. Convention on the Settlement of Investment Disputes between States and Nationals of Other States, Preamble, October 14, 1966, available at http://www.worldbank.org/icsid/ba.sicdoc/partA- preamble.htm (last visited May 23, 2005).
100. Such is the case with the International Court of Justice. For the tenure of the Judges, see Statute of the International Court of Justice, Article 13, available at http://www.icj-cij.org/icjwww/ibasicdocuments/ ibasictext/ibasicstatute.htm (last visited April 14, 2005); for the procedure of election to the Court, see id, Articles 2-12.
101. ICSID Arbitration Rules, Chapter I, Rules 2-3, available at http://www.worldbank.org/icsid/basicdoc/basicdoc.htm (last visited November 26, 2004).
102. The full disclosure of an award and the reasoning leading to it is not a given in arbitration. In U.S. arbitration, it is in fact possible and advisable to agree that no reasons be given for an arbitral decision in order to avoid a potential collateral attack on the award at the enforcement stage. See 9 U.S.C. §10(3)(4) (2000). This approach, has found, its way explicitly into the International Arbitration Rules of the American Arbitration Association. American Arbitration Association International Arbitration Rules As Amended and Effective November 1, 2001, Art. 27(2), available at http://www.adr.org/sp. asp?id=22188#Article_27 (last visited April 14, 2005).
103. ICSID Arbitration Rules, Chapter VI, Rule 47, available at http://www.worldbank.org/icsid/basicdoc/partF-chap06.htm (last visited October 17, 2004).
104. i.e. the avenue not to have a written opinion at all. Compare American Arbitration Association International Arbitration Rules As Amended and Effective November 1, 2001, Art. 27(2), available at http:// www.adr.org/sp.asp?id=22188#Article_27 (last visited April 14, 2005).
105. This is a very interesting means by which contracting parties might be able to fully avoid any review by any enforcing court due to a complete lack of a record. It also deprives the court of legal reasoning it could sink its teeth into hence relieving it of the temptation of a revision a fond of the arbitral decision.
106. ICSID Arbitration Rules, Chapter VI, Art. 48 (4), available at http://www.worldbank.org/icsid/basicdoc/partF-chap06.htm (last visited October 17, 2004).
107. Idem.
108. See Andreas F. Lowenfeld, Investment Agreements and International Law, 42 Colum. J. Transnat'l L. 123, 128(2003).
109. Compare the rules of election of judges of the International Court of Justice, Statute of the International Court of Justice, Arts. 2-12, available at http://www.icj-cij.org/icjwww/ibasicdocuments/ibasictext/ibasicstatute.htm (last visited April 14, 2005).
110. Stephan Kinsella, Noah Rubins, International Investment and Political Risk (forthcoming 2005).
111. See Andreas F. Lowenfeld, Investment Agreements and International Law, 42 Colum. J. Transnat'l L. 123, 130 (2003).
112. Statute of the International Court of Justice, Art. 38.
113. See The Case Concerning Avena and other Mexican nationals (Mexico v. United States), reprinted in 42 I.L.M. 309 (2003);
114. compare The LaGrand Case (Germany v. United States), reprinted in 40 I.L.M. 1069 (2001).
115. The LaGrand Case was the first case to deal with the question of individual rights to a consult with a consular officer under the Vienna Convention in death penalty cases. The same issue needed to be relitigated in the Avena Case after the United. States did not fully implement the LaGrand. order. The International Court of justice made frequent reference to its previous decision in the Avena Case and. almost verbatim repeats its order. This treatment of previous case law more than anything shows the high influence it can yield.
116. For a feel of the treatment of previous arbitral awards by ICSID tribunals see Waste Management Inc. v. Mexico, ICSID Case No. ARB(AF) /00/3 at §§153-1.5.5, reprinted in 43 I.L.M. 967, 997-998 (2004).
117. See Marvin Feldman v. Mexico, ICSID Case No. ARB(AF) /99/1 at §107, reprinted in 42 I.L.M. 625, 647 (2002).
118. See e.g. Kenneth J. Vandevelde, The Political Economy of Bilateral Investment Treaties, 92 Am. J. Int'l L. 621. (1998);
119. Susan D. Franck, The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law through Inconsistent Decisions, 73 Fordham L. Rev. 1521, 1527 (2005).
120. Idem
121. See e.g. Margarita T.B. Coale, Stabilization Clauses in International Petroleum Transactions, 30 Denv. J. Int'l L. Sc Pol'y 217 (2002) (discussing the historical development of concession agreements and their impact on international law both, with regards to petroleum arrangements and stabilization clauses in general, accounting for important case law on the development of concession agreements). It should be noted that this new line of inquiry does not negate the underlying premise of this Essay. It merely opens up another interesting avenue of investigation: to compare the impact of the Roman jurist's draftsman ship to that of modern contracts. Compare De Orat. 1.212, discussed infra at VI.
122. See Marvin Feldman v. Mexico, ICSID Case No. ARB(AF) /99/1 at §107, reprinted in 42 I.L.M. 625, 647 (2002).
123. An example might be instructive here. A good example for the high standards expected of an academic become international arbiter is Prof. Kerameus. He holds law degrees from the universities of Thessaloniki and the Freie Universitaet Berlin. He received his doctorate in law from the Freie Universitaet. After an illustrious academic career, he currently holds numerous honorary doctorates in the Law from Universities such as Hamburg and Liege. He taught at Berlin, Hamburg, Paris II, LSU, Ohio State University, Tulane and Chuo. He is published many times over and is beyond a doubt one of the most eminent European scholars on comparative law, working actively towards European legal approximation in civil procedure and as a member of the European Group on Tort Law.
124. See Andreas F. Lowenfeld, Why Arbitrate? In Rufus V. Rhoades, Daniel M. Kolkey, Richard Chernick eds., Practitioner's Handbook on International Arbitration and Mediation 1.1-4 - 1.1-5 (Second Release 2004) (discussing the selection of arbitrators out of the international bar).
125. Stephan Kinsella, Noah Rubins, International Investment and Political Risk (forthcoming 2005).
126. See Marvin Feldman v. Mexico, ICSID Case No. ARB(AF) /99/1, reprinted in 42 I.L.M. 625 (2002). This award was reached, by a panel well versed, in comparative law. For a general discussion on the qualifications of an arbitrator,
127. see Richard M. Mosk, Tom Ginsburg, Becoming an International Arbitrator: Qualifications, Disclosures, Conduct, and Removal, in Rufus V. Rhoades, Daniel M. Kolkey, Richard. Chernick eds., Practitioner's Handbook on International Arbitration and Mediation 1.9 (Second Release 2004)
128. See Marvin Feldman v. Mexico, ICSID Case No. ARB(AF) /99/1, reprinted in 42 I.L.M. 625 (2002).
129. See also Richard. M. Mosk, Tom Ginsburg, Becoming an International Arbitrator: Qualifications, Disclosures, Conduct, and Removal, in Rufus V. Rhoades, Daniel M. Kolkey, Richard Chernick eds., Practitioner's Handbook on International Arbitration and Mediation 1.9 (Second Release 2004);
130. Susan D. Franck, The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law through Inconsistent Decisions, 73 Fordham L. Rev. 1521 (2005).
131. Andreas F. Lowenfeld, The Party Appointed Arbitrator in International Controversies: Some Reflections, 30 Tex. Int'l L. J. 59 (1995).
132. See Susan D. Franck, The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law through Inconsistent Decisions, 73 Fordham L. Rev. 1521, 1614 (2005).
133. See e.g. OPIC Memorandum of Determinations, Expropriation Claim of Citibank N.A. Sudan Contract of Insurance No. X002 and Annex XC796 (2000) available at http://www.investmentclaims. com/opicl.html (last visited May 23, 2005).;
134. OPIC Memorandum of Determinations, Political Violence Claim Shelter for Life Inc Afghanistan - Contract of Insurance No. F377 (2004), available at http:// www.investmentclaims.com/opicl.html (last visited May 23, 2005).
135. The current debate in arbitral tribunals regarding the rules governing creeping expropriation are ample testament to this development. See Metalclad Corp. v. United Mexican States, ICSID Case No. Arb(AF) /91/1, reprinted in 40 I.L.M. 36 (2001);
136. Marvin Feldman v. Mexico, ICSID Case No. ARB(AF) /99/1, at §107, reprinted in 42 I.L.M. 625, 647 (2002).
137. Editorial, The Secret Trade Courts, The New York Times September 24, 2004 at A 26.
138. Metalclad Corp. v. United Mexican States, ICSID Case No. Arb(AF) /91/1, reprinted in 40 I.L.M. 36 (2001).
139. Id at 37.
140. Id. at 47-50 (holding that Metalclad was denied fair and equitable treatment).
141. Id at 50-51.
142. Idem
143. Id. at 48, §86.
144. Id at 50, §106.
145. Id at 51,§ 111.
146. this interpretation was rejected on review by a Canadian court in compliance of the provisions of the New York Convention. See William S. Dodge, International Decision: Metalclad Corp. v. Mexico, 95 A.J.I.L. 910, 914 (2001).
147. While such, a position may, depending on the circumstances, be an appropriate reading of international law, its procedural oddity of arising out of the deliberations of private jurists remained troublesome to some. The Canadian court did not set aside the part of the award, dealing with the question of a indirect taking, while setting aside the parts of the award, relying on the fair application of the public laws of Mexico to foreign investors. The court's reading of the award hence favors the aggressive reading of indirect expropriation. see id. at 915. As such, from a purely procedural point of view, the remainder of Metalclad unaffected by the Canadian court should satisfy critics of accountability, due to the fact that the NAFTA mechanism here allowed, for actual judicial review.
148. See Donald, McRae, Trade and the Environment: Competition, Cooperation or Confusion? 41 Alberta L. Rev. 745, 759 (2003) (discussing the different positions on trade and the environment with specific attention paid to the NAFTA regime).
149. See William S. Dodge, Loewen v. United States: Trials and Error under NAFTA Chapter 11,52 DePaul L. Rev. 563, 578 (2002).
150. William S. Dodge, International Decisions: Waste Management Inc. v. Mexico, 95 A.j.I.L. 186, 191192 (2001).
151. ICSID Arbitration Rules, Chapter VII, Rule 50-55, available at http://www.worldbank.org/icsid/ basicdoc/partF-chap06.htm (last visited October 17, 2004).
152. Because their decisions have great public impact, arbitration panels owe the public a hearing" Editorial, The Secret Trade Courts, The New York Times September 24, 2004 at A 26.
153. This is most poigniandy critized by Alan Watson. Alan Watson, Roman Law and Comparative Law 98-100 (1991). Yet, aslighdy more subtle, if still importantly private picture of Roman law during the late Republican period is painted, by Emilio Betti, Diritto Romano, vol. I 15, ,55-56 (1935). This difference in many ways will be part of the later discussion.
154. De Orat. 1.212. Emilio Betti, Diritto Romano, vol. 1 39-40 (1935);
155. Jolowicz and Nicholas, Roman Law, supra note 23, at 88-97.
156. See id.
157. Jolowicz and Nicholas, Roman Law, supra note 23, at 200; Francesco Buonamici, La Storia Delia Procedura Civile Romana, vol. 1 46 (1971); Emilio Betti, Diritto Romano, vol. 1 566-583 (1935)
158. Jolowicz and Nicholas, Roman Law, supra note 23, at 178.
159. See generally jolowicz and Nicholas, Roman Law, supra note 23, at 199-232;
160. Francesco Buonamici, La Storia Delia Procedura Civile Romana, vol. 1 113-114 (1971);
161. Emilio Betti, Diritto Romano, vol. 1 566-583 (1935)
162. Gai 3.224 referring to the role of the judge in the late Republic in delictual cases. The scope of these cases is partially defined, in Gai. 3.220 including not only battery but interestingly also the law of libel.
163. A good, expose of a position which presents the jurists as the shapers of the civil law in the face of a clearly disinterested and ignorant sovereign can be found in one of the seminal works of comparative law. Alan Watson, Roman Law and Comparative Law 97-110, 290n. 4 (1991). Alan Watson's position in many ways is the common wisdom in the field of comparative scholars. This Essay will strongly disagree with the position it takes and the conclusions it draws from the primary sources. Nowhere is this disagreement more pronounced than in the treatment of Cicero. Alan Watson correctly identifies the group of jurists in the Republic as one of the most hermetically elitist professional class. Yet, his assessment of Cicero's position in it as well as towards is slightly one sided. Id. at 101. According to Watson, Cicero was not a member of the legal elite of jurists, even though his training more than qualified him to be, which led Cicero to more than occasionally sneer at the class of jurists. While it is true that Cicero was not considered a jurist, he had a very close relationship with legal scholarship and was one of the premier lawyers of his time. See Wolfgang Kunkel, Herkunft Und Soziale Stellung Der Römischen Juristen 38-40 (1952).
164. His position towards the class of jurists and the relationship between the Law, Politics and Rhetoric is best uncovered by a careful reading of his De Oratore, De Officiis and the De Legibus. See discussion infra. Such a reading, as this Essay will show, will bring forth a more engaged, if still exclusive picture of the class of jurists. In short, this Essay will compare the jurists to the current bar of international lawyers who carefully guard, their profession, yet also are integrally part of the international political and academic landscape.
165. The political significance of the jurists is more than just suggested, by Cicero. A jurist has a natural base of political clients and can hence ascend to the praetor and consulship rather easily. De offic. 2.65. For an interpretation of the passage in terms of the social history of the jurists in the Republic, see Wolfgang Kunkel, Herkunft Und Soziale Stellung Der Römischen Juristen 38-40 (1952).
166. The jurists descend directly from the priestly class of Rome. Wolfgang Kunkel, Herkunft Und Soziale Stellung Der Römischen Juristen 38-40 (1952);
167. Jolowicz and Nicholas, Roman Law, supra note 23, at 88-94. This comparison is much more apt than the one to a Platonic philosopher Guardian. In Rome,
168. being a member of the clergy was a coveted political prize - the nominally most powerful of which was being one of the three flamines. Yet, due to the restriction put on them not to leave the city, a different, military class of priests rose to the forefront: that of the pontifex or bridge builder. Caesar's hold on the office of pontifex maximus was part of his final ascension to the Roman throne. It was an office the Roman imperator would from there on out hold as a matter of office. If one hence were to say that the Roman clergy was not essentially political, one would take only a very limited, peek at Roman society. The same should be said about the jurists.
169. In many ways, this modern perspective of the politically detached consults could, be compared, to a future legal historian's task of analyzing the state of U.S. law around the turn of the 21st century. He might be tempted to say that federal judges were entirely detached from political concerns. In fact, our historian might point to a drive in the courts to fully ignore Congressional pronouncements in the interpretation of federal statutes to support her point. Yet, as inhabitants of contemporary America, we would, know better than to subscribe to such a frankly uni-dimensional view of the law. We should be equally skeptical of any interpretation of foreign law that seems equally single minded.
170. In this sense, Alan Watson is correct to point out that the law was in the hands of private jurists. Alan Watson, Roman Law and Comparative Law 101 (1991). Yet, Watson's position does not account for the important if subde contribution of the jurists to the Roman state and vice versa. Hence, they should better be regarded as an Estate which, while an essential part of the state does not fall under its direct sovereignty and supervision.
171. The judge did not sit as a state official but as a private man hearing the grievances of his fellows. Jolowicz and Nicholas, Roman Law, supra note 23, at 178.
172. De. Leg. 3.3.8;
173. Gai. 1.6;
174. Theodor Mommsen, Römisches Staatsrecht yol 2(1) 228-229 (3d ed. 1887) [hereinafter Mommsen, Staatsrecht]. This formulary system has been accused of shrouding from public notice the change of the civil law away from the strict leges actiones to a more elastic, equitable system of law. Sheldon Amos, Roman Civil Law 45 (1887). Such a position seems to contradict the underlying assumption of this Essay that praetorian action was in fact a sufficient means of giving public of legal changes and a good means of creating public accountability in the face of a privately guided judicial system. Yet, Professor Amos' position does not directly contradict the theory of this Essay but merely casts a more cynical perspective on it. Praetorian action was a means of incorporating into the law the most important pronouncements of the jurists. Hence, in as much as these jurists are not officers of the state and in so far as their work remained in the shadows, there was indeed a lack of full public notice on the inner workings of the Roman legal system. Professor Amos looks to the Edict and its meaning for public accountability from the vantage point of the leges actiones. From that perspective, there is little doubt that the public now was more in the dark as to the state of the law than they were before. This Essay takes the opposite legal vantage point and compares the Edict directly to the opinions of the jurists, which were not at all tied to the state in their intellectual development. From this perspective, there indeed is more public accountability.
175. Sir Wolfgang Kunkel, Herkunft Und Soziale Stellung Der Römischen Juristen 38-44 (1952). Kunkel goes through the historical importance of the jurists in the Roman state and tests the Ciceronian statement that the civil law was wholly in the possession of the aristocracy and knighthood and establishes it as historically correct until about the first century BC. Charles Maynz, Cours De Droit Romain 145 (1870);
176. Eugene Petit, Traite Elementaire De Droit Romain 25 (1906).
177. Id; Jolowicz and Nicholas, Roman Law, supra note 23, at 178;
178. Betti, Diritto Romano vol. 1 39-40 (1935);
179. Alan Watson, Roman Law And Comparative Law 101 (1991);
180. Charles Maynz, Cours De Droit Romain 145 (1870).
181. This statement could be construed as a slight misstatement since as we shall see below, the jurists developed out a different class of priests, the pontifices rather than out of the class of the Augurs. Yet, one of the greatest jurists of Republican Rome, Q. Mucius Scaevola of Ciceronian fame, was indeed, an Augur. Kunkel, supra note 107, at 47;
182. Charles Maynz, Cours De Droit Romain 150 (1870);
183. Eugene Petit, Traite Elementaire De Droit Romain 27 (1906) (explaining the Aristotelian philosophy of the jurist);
184. see also Jolowicz and Nicholas, Roman Law, supra note 23, at 92-93 for a quick, if incomplete English vita of the consul.
185. Plutarch, Parallel Lives, Numa; Kunkel, supra note 107, at 45-49;
186. Jolowicz and Nicholas, Roman Law, supra note 23, at 91-93.
187. Watson, supra note 100, at 99.
188. Watson, supra note 100, at 99.
189. 136); Plutarch, Parallel Lives, Numa; Jolowicz and Nicholas, Roman Law, supra note 23, at 89; Andrew
190. Stephenson, History of Roman Law 13(1992).
191. Jolowicz and Nicholas, Roman Law, supra note 23, at 89; Andrew Stephenson, History of Roman Law 13 (1,992).
192. Andrew Stephenson, History of Roman Law 13 (1992).
193. For an interesting insight into the Roman religious mind, it is instructive to read Frontius on stratagems. In his short yet seminal work on classical military strategy, Frontius, a high officer of the Empire, suggests means of using religious feelings to one's advantage in battle. This suggests a strongly practical patrician relationship to religion; equally it also suggests an almost superstitious belief in divinity in the larger masses of plebeians. Both these aspects can shed, very interesting light on the relationship between law and religion in Roman society. Frontius,.
194. Andrew Stephenson, History of Roman Law 13-15 (1992). Interestingly, this mercenary theology still has some foothold with the current lay population of Rome. There is a theologically mistaken, yet prevalent, belief that one can pay a price for salvation or for the intervention of a saint. While books have been written on this subject matter - after all it was the exploitation of this belief which led to the German reformation - it is humorous to say the least to recognize that the Roman approach, to their Gods still remains well and alive in modern times. This should serve as just another reminder to the modern positivist that ignorance of the past is quite simply ignorance of the present.
195. Arguably, it was another priestly function, that of keeping the Calendar, which allowed the secularization of the law. Kunkel, supra note 107, at 45. Jolowicz and Nicholas, Roman Law, supra note 23, at 91 suggest that a collection of legis actiones were stolen by Cn. Flavius and published by him together with a calendar to alert the public on which days an action could, be brought. Eugene Petit, Traite Elementaire De Droit Romain 27 (1906); Charles Maynz, Cours De Droit Romain 146 (1870) (arguing that the opening of the priesthood to plebeians ended the priestly chokehold on the law).
196. On the original function of the pontifex maximus, see Liv. 1.20. Livy explains that the pontifex was charged with both civil and religious law. It should come as no surprise to the attentive student of classics that Gaius Julius Caesar and his successor Octavian passed through the position of pontifex maximus to attain their imperial position. What might be altogether more surprising is the modern recycling of the term "pontifex maximus" as the official papal title. This development was championed by the broad sweep of the Rinnascimento. For the purposes of Roman law, this development is the more interesting, as it gives full effect to the reception of Roman Law on the continent: it creates the historical tradition necessary to make it almost infallible. The Pope now was the direct descendent in title of the first promulgators of the civil law, carried the full religious authority of the Empire under whose sovereignty it was enacted and further carried the full religious authority of the infallibility of the Roman Catholic Church. It comes then as no surprise that the Digest could be considered gospel.
197. This accountability would have been one of provenance only, since the law itself was kept in jealous
198. secrecy during the tenure of the pontifices as sole juridical experts. See generally, Kunkel, supra note 107;
199. Jolowicz and Nicholas, Roman Law, supra note 23, at 89.
200. This independence is clearly accounted for in Cicero. De offic. 2.65. One of Cicero's contemporaries and friends, Ser. Sulpicius Rufus, a man of old nobility, had used his standing as a jurist to rise to the highest honor of state, the consulship, in 51 BC. For a biography of Sulpicius Rufus, see Kunkel, supra note 107, at 25.
201. Kunkel, supra note 107, at 45.
202. Id.
203. Id at 46-47.
204. Id at 49.
205. Id at 49.
206. Here, the author disagrees to some degree with Wolfgang Kunkel. Wolfgang Kunkel wishes to make more of a break between the old order and the new at the latest in the beginning of the first century BC due to the historical and social change during that period. The social change and the greater integration of the Latins into Roman society and the clear rise of the knighthood into the foreground of Roman politics rocked the foundations of the old. Republican order and its legal nomenklatura. Kunkel, supra note 107, at 56-61. While the author fully agrees with the social history presented by Wolfgang Kunkel, there remain some doubts as to how deep this social change impacted the foundations of the Roman aristocratic social organization. Roman society changed only slowly and only ever in keeping with its historical traditions. This explains the truly slow change of Rome from Republic to Empire in form and. form only. As formal bastion of the Republican order, it is hard to believe that the order would have budged, all too greatly. It likely incorporated the new by reference to the old. The already mentioned Sulpicius Rufus here is a good example. He rose to power because of reference to past familial glory -most of which could charitably be called ancient history or creative historiography.
207. Watson, supra note 100, at 98.
208. To do it justice, Alan Watson's position certainly captures the ongoing dialogue between the praetor and jurist in the process of promulgating the annual edict and the interpretation of the Edict to issue of formulae. Watson, supra note 100, at 100; the political importance of the jurists and their inherent tie to the ruling aristocracy is poignantly described in Eugene Petit, Traite Elementaire De Droit Romain 26 (1906);
209. Charles Maynz, Cours De Droit Romain 145-153 (1870).
210. These interactions were far greater and more frequent than the discussions with the praetor concerning the Edict. Jurists were often were senators and important and influential members of society in more than just the strictly juridical interpretation and extrapolation of the law. Jurists made and consulted on policy. They were politically active by running for office or as a power behind the throne. There is hence a far greater depth to them than many general works on Roman law would suggest. On this civic aspect of the life of the jurists, see Jolowicz and Nicholas, Roman Law, supra note 23, at 94.
211. For a resume of the particular vitae of some of these remarkable individuals, see Kunkel, supra note 107, 1-35;
212. Charles Maynz, Cours De Droit Romain 148-153 (1870);
213. Eugene Petit, Traite Elementaire De Droit Romain 27 (1906).
214. Arguably, the aristocracy could have lost its hold on the jurists in the first century BC through the influx of more and more knights and rich plebeians into their ranks. Yet, this simply furthered the political rise of those classes themselves and only gives further proof for the political importance of juridical tenure; if it would have been inconsequential politically, newly powerful population groups would not have coveted quite so much. See generally, Kunkel, supra note 107.
215. Kunkel, supra note 107, at 38-40.
216. Idem
217. Watson, supra note 100, at 100.
218. For a nuanced position on the importance of the jurists, see Jolowicz and Nicholas, Roman Law, supra note 23, at 95;
219. Eugene Petit, Traite Elementaire De Droit Romain 25 (1906).
220. One should carefully contrast the De Officiis with Cicero's biting commentary on the state of his polity in these waning days of the Republic in his letters, Ad Fam. 7.11.1 : "nisi ante Roma profectus esses, nunc earn certe relinqueres: quis enim tot interregnes iuris consultum desiderat?" This comment clearly describes the lawlessness and confusion at Rome in those final days - it also stands witness to the important social glue that was provided by the services of the jurists.
221. De offic. 2.65.
222. For an interpretation of the passage in terms of the social history of the jurists in the Republic, see Wolfgang Kunkel, supra note 107, at 38-40.
223. De offic. 2.65.
224. The entire dialogue is a running commentary on the law, politics, civic virtue and oratory at Rome. It is impossible to do it justice in the little space available in this Essay. The interested reader is referred to carefully read the dialogue and make his own conclusions. Special attention should be paid to the dramatis personae - Q. Mucins Scaevola, jurist, orator, consul and senator plays a prominent part in the dialogue.
225. De Orat. 1.212.
226. The passage is beautifully dealt with, in Jolowicz and Nicholas, Roman Law, supra note 23, at 95-96;
227. see also Pro Murena 9 discussed in Charles Maynz, Cours De Droit Romain 147, 147n.ll (1870).
228. I64) This is clearly implied by the De officiis passage. If being a jurist is one of the main means by which one gains a clientele this is because legal advice and representation is the social glue between paterfamilias and, client. It is the heart of the symbolism of a clientship system: the jurist turned, pater benevolently organizes and watches over the affairs of those beholden to him. He also defends his clients against the accusations of others in court. A jurist defends, protects and manages the liberty and possessions of his clients. He is the quintessential patrician. De offic. 2.65.
229. Jolowicz and Nicholas, Roman Law, supra note 23, at 95;
230. Francesco Buonamici, La Storia Della Procedura Civile Romana vol. 1 291-292 (1971).
231. An example of this, the ius Aelianum, found its way into the Digest. D. 1.2.2.7. If read in context of the praetorian power to amend, and correct the civil law in keeping with social needs in D. 1.1.7.1., the interplay between the jurists and the praetor in making and amending the Roman law - be it in breach of the Roman constitution - should be amply documented from the very early beginning of Roman legal development.
232. See Emilio Betti, Diritto Romano vol. 1 57(1935);
233. Jolowicz and Nicholas, Roman Law, supra note 23, at 192;
234. Alan Watson, supra note 100, at 98;
235. Charles Maynz, Cours De Droit Romain 147 (1870).
236. Jolowicz and Nicholas, Roman Law, supra note 23, at 94, 96.
237. De off. 2.65.
238. See Jolowicz and Nicholas, Roman Law, supra note 23, at 94 n. 6;
239. Betti, Diritto Romano vol. 1 39-40 (1935).
240. Alan Watson comments on the difficulties of breaking into the profession even as a first rate advocate and lawyer. Alan Watson, supra note 100, at 101.
241. On the academic route for success as a jurist through publication, see Jolowicz and Nicholas, Roman Law, supra note 23, at 96-97 (describing the genre of legal writing from the late Republic on).
242. Pace Professor Dawson, it does not share this characteristic with the common law system, where there is truly only one means of accession to prominence: legal practice. The common law system does not have the civilian appreciation for legal learning or its commitment to keeping the law pure of extralegal considerations. Hence, from a professional perspective nothing is further from the Roman system than the common law. Yet, Professor Dawson remains correct in pointing out several other affinities between the common law and the corpus iuris civilis. Dawson, The Oracles of Law (1969).
243. For a longer discussion of this proposition, see supra at Section III.
244. As the judges in Roman law would be liable for a clearly erroneous decision arrived, at without previously consulting a jurist, the jurists advice ended up as the actual holding of the more often than not. Gai. 1.7. Max Radin, Handbook of Roman Law 48 (1927).
245. See Gai. 4.17a; Jolowicz and Nicholas, Roman Law, supra note 23, at 201;
246. Iltudus Prichard, David Nasmith, Ortolan's History of Roman Law 156 (1871);
247. Eugene Petit, Traite Elementaire De Droit Romain 25 (1906).
248. Gai. 4.29. Emilio Betti, Diritto Romano 506 (1935);
249. Eugene Petit, Traite Elementaire De Droit Romain 667 (1906);
250. Charles Maynz, Cours De Droit Romain 112 (1870).
251. Gai. 4.29. Emilio Betti, Diritto Romano 506 (1935);
252. Eugene Petit, Traite Elementaire De Droit Romain 667 (1906).
253. I77) Gai. 4.29. Emilio Betti, Diritto Romano 506 (1935);
254. Eugene Petit, Traite Elementaire De Droit Romain 667(1906).
255. Mommsen, Staatsrecht, supra note 106, at vol. 2(1) 229;
256. Iltudus Prichard, David Nasmith, Ortolan's History Of Roman Law 240 (1871).
257. One of the most important questions which still seems unresolved is whether it was the parties themselves that could choose their judge, or whether the praetor would appoint the judge for the parties. The position that the judge was appointed by the parties was made most forcefully by Wlasak. Wlasak, Der Judikationsbefehl der römischen Prozesse, 197 Sitzungsb. Ak. Wiss. Wien 4 (1921).
258. Wlasak's position has been the center of academic attention in the area. It is followed by Emilio Betti, Diritto Romano 501-507 (1935).
259. I It is critized by Jolowicz and Nicholas, Roman Law, supra note 23, at 178, though only to the question of the weight of the parties choice, (arguing that the praetor made the choice of judge and asked the parties for their consent).
260. Mommsen, Staatsrecht, supra note 106, at vol. 2(1) 229;
261. Jolowicz and Nicholas, Roman Law, supra note 23, at 178;
262. Iltudus Pricliard, David Nasmith, Ortolan's History of Roman Law 241 (1871).
263. Mommsen, Staatsrecht, supra note 106, at vol. 2(1) 229.
264. Jolowicz and Nicholas, Roman Law, supra note 23, at 178;
265. Iltudus Pricliard, David Nasmith, Ortolan's History of Roman Law 241 (1871).
266. Mommsen, Staatsrecht, supra note 106, at vol. 2(1) 229;
267. Iltudus Prichard, David Nasmith, Ortolan's History of Roman Law 241 (1871).
268. I82) See Francesco Buonamici, La Storia Delia Procedura Civile Romana vol. 1 290-291 (1971);
269. Charles Maynz, Cours De Droit Romain 111 (1870).
270. Gai. 4.43 is the analytical seat of the power of the judge to render judgment. The judge is only vested with such judicial power if the formula is followed; Jolowicz and Nicholas, Roman Law, supra note 23, at 186, 215-216.
271. Gai. 4.43 grants the formulary power to judge. The parts of the formula are set out in Gai. 4.39. The same idea can also be expressed in terms of jurisdiction. The judge only has jurisdiction over a case, if he follows the praetor's directions. Following Ulpian, one can define the question in jurisdictional terms: "iurisdictio est etiam iudicis dandi licentia." D. 2.1.3. In the late Republic, the judge is given license over the case by the praetor's instruction over the case. If the judge were to stray from it, he would loose his jurisdiction over the case.
272. The formula could have four parts and two corollary considerations. These are demonstratio, intentio, adiudicatio, condemnatio. Further, the exceptio allows a defense. Gai. 4.116. Finally, a formula may also contain a replicatio or further considerations that could best be described as estoppel. Gai. 4.126, 4.128. Jolowicz and Nicholas, Roman Law, supra note 23, at 201-208;
273. Charles Maynz, Cours De Droit Romain 112 (1870);
274. Eugene Petit, Traite Elementaire De Droit Romain 663-680 (1906).
275. These issues are set out in the four parts of the formula proper set out supra note 162. The intentio contains the meat of the actual claim, the demonstratio sharpens the claim by relating it to the relevant field of legal inquiry and providing its specific rule of law. The final two sections relate to the execution of the judgment - the judge can grant full or partial judgment in favor of one of the litigating parties either in monetary or specific terms. See supra note 162.
276. In the terminology of Roman law, this question is one of exceptio. Gai. 4.116. See Jolowicz and Nicholas, Roman Law, supra note 23, at 206-207.
277. Further issues can arise out of these defenses. Gai. 4.128. Jolowicz and Nicholas, Roman Law, supra note 23, at 208.
278. Gai. 4.43; D. 2.1.3;
279. Mommsen, Staatsrecht, supra note 106, at vol. 2(1) 228.
280. Gai. 4.43; D. 2.1.3;
281. Mommsen, Staatsrecht, supra note 106, at vol. 2(1) 228.
282. On the historical development away from the legis actio towards formulary pleading, see i Eugene Petit, Traite Elementaire De Droit Romain 663 (1906).
283. Gai. 4.43; D. 2.1.3; Mommsen, Staatsrecht, supra note 106, at vol. 2(1) 228;
284. Eugene Petit, Traite Elementaire De Droit Romain 667 (1906);
285. Charles Maynz, Cours De Droit Romain 112 (1870).
286. D. 5.1.58. Mommsen, Staatsrecht, supra note 106, at vol. 2(1) 228.
287. In fact, one of the most eminent scholars of Roman law and history translates "iudex", here translated. as judge, as the German "Geschworener." "Geschworener" is nothing other than the German word for "juror." Theodor Mommsen, Staatsrecht, supra note 106, at vol. (2)1 186.
288. This difference in outlook can certainly be justified in the context of the rise of formulary actions and the demise of the legis actio. In formulary actions, it was the parties that negiotated in an ongoing dialogue which questions they wished to present to the praetor for a formula. Due to the strictness of the law and its very limited confines, fairness was guaranteed by this pre-trial stages of the proceedings. Emilio Betti, Diritto Romano 507 (1935); Charles Maynz, Cours De Droit Romain 111 (1870).
289. Francesco Buonamici, La Storia Della Procedura Civile Romana vol. 1 290-291 (1971).
290. Yet, Buonamici makes the distinction between early Roman law which had very little care for the law of evidence and the more sophisticated law of the early principate and the late Republic which started to develop evidentiary, legal concerns. Id (citing De Orat. 1.7.8).
291. Jolowicz and Nicholas, Roman Law, supra note 23, at 185.
292. In the later development of Roman law, it was possible that some evidentiary concerns arose. These would be dealt with by jurists who would advise the judge on the law and hence resolve the question. Francesco Buonamici, La Storia Della Procedura Civile Romana vol.1 291-292 (1971).
293. For a good summary of the law of evidence accumulated by the end of the development of Roman Law, see Francesco Buonamici, La Storia Della Procedura Civile Romana vol.1, 291-321, (1971).
294. Again, it is important to understand the historical dimension of formulary actions. They were largely voluntary actions negotiated between the parties before any action ever was taken. Due to this discoursive, voluntary nature of the proceedings and the closely limited jurisdiction of the judge, evidentiary concerns are less important. The parties in the trial, in theory, is to get to the bottom of the facts. The state's interest is to make society as conforming with, the law as possible. Hence, both the parties and the state have a strong interest in giving the judge access to as much information about the facts as possible as well as to confining his judicial discretion to the smallest of ranges. Wlasak, Der Judikationsbefehl der römischen Prozesse, 197 sitzungsb. Ak. Wiss. Wien 4 (1921);
295. Emilio Betti, Diritto Romano, vol. 1 506-507 (1935);
296. Charles Maynz, Cours De Droit Romain 110 (1870).
297. 200); Gai. 4.39; 4,43. D. 2.1.3.
298. This is not as offensive against a basic sense of justice as one might initially think. Both parties needed to agree to the judge before the proceedings. Since both parties have thus expressed their trust in the ability of the trier of fact to reach a just result, they should not be allowed to cry foul concerning his ability to correctly weigh the evidence before them. See Wlasak, Der Judikationsbefehl der römischen Prozesse, 197 sitzungsb. Ak. Wiss. Wien 4 (1921);
299. Charles Maynz, Cours De Droit Romain 110 (1870).
300. See Gai. 1.7; Max Radin, Handbook of 'Roman Law 48 (1927).
301. See Gai. 1.7; Max Radin, Handbook of Roman Law 48 (1927).
302. See Gai. 1.7; Max Radin, Handbook of Roman Law 48 (1927).
303. Mommsen, Staatsrecht, supra note 106, at vol. 2(1) 193.
304. Mommsen, Staatsrecht, supra note 106, at vol. 2(1) 193.
305. Livy disagrees with this categorization. Liu 8.15.9. Yet, Mommsen's treatment of the question is
306. convincing. Mommsen, Staatsrecht, supra note 106, at vol. 2(1) 204.
307. Mommsen, Staatsrecht, supra note 106, at vol. 2(1) 204.
308. Mommsen, Staatsrecht, supra note 106, at vol. 2(1) 194 (citing Liv. 22.35.5).
309. Mommsen, Staatsrecht, supra note 106, at vol. 2(1) 196.
310. Mommsen, Staatsrecht, supra note 106, at vol. 1 116.
311. De. Leg. 3.3.8: iuris disceptator, qui privata iudicet iudicarive iubeat, praetor esto: is iuris civilis custos estos.
312. Mommsen describes the praetor as "oberste[r] Civilrichter". Mommsen, Staatsrecht, supra note 106, at vol. 2(l) 219.
313. Mommsen, Staatsrecht, supra note 106, at vol. 1 116.
314. Mommsen, Staatsrecht, supra note 106, at vol. 2(1) 234.
315. Mommsen, Staatsrecht, supra note 106, at vol. 2(1) 207.
316. Jolowicz and Nicholas, Roman Law, supra note 23, at 176.
317. D. 1.2.2.7 "Auguscente civitate quia deerant quaedam genera agenda, non post multum temporis spatium Sextus Aelius alias actiones composuit et librum populo dedit qui appellatur ius Aelianum."Here, the Digest makes reference to the development of the law by the jurists. Yet, as Jolowicz and Nicholas correctly recognize, these causes of action needed to have been recognized at law before their publication for quite a while. Jolowicz and Nicholas, Roman Law, supra note 23, at 192. Hence, it may well be useful to compare here D. 1.1.7.1. "ius quod praetores introduxerunt, adiuvandi vel supplendi vel corrigenda iuris civilis gratia." These two passages from the Digest clearly indicate that the civil law had some important lacunae which were filled by praetorian actions. These actions likely were the means by which the jurists managed to slowly develop the law. Hence, from the very beginning of Roman legal development, the Digest implies a rich and important cross fertilization between the jurists and praetorian law. See Emilio Betti, Diritto Romano vol. 1 57 (1935).
318. Mommsen, Staatsrecht, supra note 106, at vol. 2(1) 232.
319. Emilio Betti, Diritto Romano vol. 1. 497 (1935).
320. De. Leg. 3.3.8.
321. Mommsen, Staatsrecht, supra note 106, at vol. 2(1) 228-229.
322. Gai. 1.6. Mommsen, Staatsrecht, supra note 106, at vol. 2(1) 221.
323. Mommsen, Staatsrecht, supra note 106, at vol. 2(1) 221; Charles Maynz, Cours De Droit Romain 132-145 (1870).
324. Mommsen, Staatsrecht, supra note 106, at vol. 2(1) 222.
325. Mommsen, Staatsrecht, supra note 106, at vol. 2(1) 221-222;
326. Sheldon Amos, Roman Civil Law 51 (1883).
327. Mommsen, Staatsrecht, supra note 106, at vol. 2(1) 222.
328. Sheldon Amos, Roman Civil Law 51 (1883);
329. Charles Maynz, Cours De Droit Romain 134 (1870).
330. Sheldon Amos, Roman Civil Law 51 (1883);
331. Charles Maynz, Cours De Droit Romain 134 (1870).
332. Sheldon Amos, Roman Civil Law 51 (1883);
333. Charles Maynz, Cours De Droit Romain 134 (1870).
334. See Mommsen, Staatsrecht, supra note 106, at vol. 2(1) 221.
335. Sheldon Amos, Roman Civil Law 51 (1883).
336. See Mommsen, Staatsrecht, supra note 106, at 221.
337. D. 1.1.7.1.
338. Jolowicz and Nicholas, Roman Law, supra note 23, at 278;
339. Eugene Petit, Traite Elementaire Du Droit Romain 287 (1906).
340. Jolowicz and Nicholas, Roman Law, supra note 23, at 212;
341. Eugene Petit, Traite Elementaire Du Droit Romain 287 (1906);
342. Jolowicz and Nicholas, Roman Law, supra note 23, at 211;
343. Gai. 4.66.
344. See Eugene Petit, Traite Elementaire Du Droit Romain 287 (1906);
345. Charles Maynz, Cours De Droit Romain 441 (1870) (both clearly conceive of the law of obligations, specifically that of nominate sales contracts, to fall stricti iuris).
346. "Mais, dans les contrats de droit strict, le droit civil n'offrait aucune resource pour échapper aux inconvénients du dol." Eugene Petit, Traite Elementaire Du Droit Romain 287 (1906).
347. Id.
348. Jolowicz and Nicholas, Roman Law, supra note 23, at 278-279;
349. Eugene Petit, Traite Elementaire Du Droit Romain 287 (1906);
350. Charles Maynz, Cours De Droit Romain 441 (1870).
351. See Eugene Petit, Traite Elementaire Du Droit Romain 287 (1906).
352. "Quans un contrat s'est formé sous l'empire du dol de l'une des parties, le droit civil le considère comme valuable. La personne qui a été trompée aurait sans doute discerné le dol avec un peu plus de diligence." Eugene Petit, Traite Elementaire Du Droit Romain 287 (1906). Nevertheless, even at strict law, it would have been possible to be legally protected against fraud, by diligent draftsmanship. By the introduction of a clausula doli, the parties would contractually bind themselves not to defraud each other. If such a clause was present in the contract, any fraud would automatically void the contract. Id. Under these conditions, one can easily see why the early Roman jurisprudence had little sympathy for the victim of fraud: in modern terms, such a contract could only have been made by an ignorant lay person or through the malpractice of counsel.
353. Jolowicz and Nicholas, Roman Law, supra note 23, at 278-279;
354. Eugene Petit, Traite Elementaire Du Droit Romain 718-720 (1906).
355. Jolowicz and Nicholas, Roman Law, supra note 23, at 279;
356. Eugene Petit, Traite Elementaire Du Droit Romain 287 (1906).
357. See Jolowicz and Nicholas, Roman Law, supra note 23, at 279;
358. Eugene Petit, Traite Elementaire Du Droit Romain 287 (1906);
359. for a general introduction to praetorian law, see Emilio Betti, Diritto Romano vol. 1 57 (1935).
360. Jolowicz and Nicholas, Roman Law, supra note 23, at 279 n. 1.
361. Thes is the classical analytical distinction drawn between the two Roman laws - the civil law and the praetorian law. See Mommsen, Staatsrecht, supra note 106, at vol. 2(1) 222. On the praetorian law, see Emilio Betti, Diritto Romano vol.1 42-55 (1935).
362. Both are dealt with independently in the Digest. Compare e.g. D. 1.2.2.7 and D. 1.1.7.1.
363. For a wonderful account of the working hand in hand of both legal systems, see Emilio Betti, Diritto Romano vol. 1 55-59 (1935) ("§15 Raporti fra ius civile e diritto pretorio: loro coordinamento")
364. Just how dynamic this relationship must have been becomes apparent when analyzing some of the most interesting changes in the Roman law. The introduction of the lus Aelianus is just one such example where the jurists and the praetors must have closely worked together. See D. 1.2.2.7 and D. 1.1.7.1. It is only when read in combination that one can make sense of the almost sudden advent of a new set of legal rules - the praetors were already well on their way to recognize the prerequisite principles as legally binding. It was hence in the tandem of praetor and jurist that the law advanced in sophistication. The social position of the jurist in the Republic made this the ever more likely an explanation for the developments of Roman law - jurist and praetor might well be the same person as was the case for Aulus Gellus. At the very least, due to the long lasting patrician control of both praetorship and the college of jurists, it is fair to assume that most praetors could have a conversation with a jurist in their family. See Kunkel, supra note 107, at 1-44.
365. See discussion immediately supra.
366. Jolowicz and Nicholas, Roman Law, supra note 23, at 279n.l.
367. This reading of seeing the praetor as a gatekeeper is consistent with D. 1.1.7.1. The praetor was not always a jurist himself His responsibility for helping and improving the law move with the times implies a duty on his part to communicate effectively with the jurists and in tandem with them develop the necessary legal rules. Compare De Leg. 3.3.8 ;
368. De Orat. 1.212.
369. D. 1.1.7.1.
370. See Gai.1.6.
371. See De. Leg. 3.3.8.
372. Mommsen, Staatsrecht, supra note 106, at vol. 2(1) 221.
373. Gai. 4.43; D. 2.1.3;
374. Mommsen, Staatsrecht, supra note 106, at vol. 2(1) 228.
375. Wlasak, Der Judikationsbefehl der römischen Prozesse, 197 sitzungsb. Ak. Wiss. Wien 4 (1921);
376. Charles Maynz, Cours De Droit Romain 110 (1870).
377. Wlasak, Der Judikationsbefehl der römischen Prozesse, 197 sitzungsb. Ak. Wiss. Wien 4 (1921);
378. Charles Maynz, Cours De Droit Romain 110 (1870).
379. Azurix.