"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Friday, December 12, 2008

SSRN Articles

In the last several years, the idea that international investment arbitration should become more transparent has gained wide acceptance. A number of NGOs have successfully drawn upon the public character of trade and foreign investment disputes to gain access to the proceedings as amici curiae. But why should amicus curiae briefs be important in the context of investment arbitration? Is the government (especially one that is democratically elected) not the guardian of the public interest? It is assumed that mere presence of the government as a party to the arbitration ought to assure the public that "its case is in good hands" and that the public interest will be strenuously defended. But is the public so assured? Should it be so assured? Using the foregoing as the point of departure, this paper aims to contribute to the ongoing debate about the desirability of accepting or rejecting amicus briefs in investment arbitration by enumerating, justifying and analyzing the benefits of accepting such briefs.
The "Weberianism" of the modern age derives from the influence of three theoretical concepts in Weber's work. First, Weber described the development of "logically formal rationality" in governance as central to the rise of Western capitalist democracy. Second, Weber posited that Protestant religious ethics had helped to promote certain economic behaviors associated with contemporary capitalism. Third, Weber identified the rise of bureaucratic governance, as the primary means of realizing logically formal rationality, as distinctly modern. This essay examines the influence of these basic insights on discourse on legal reform in developing countries. The prioritization of legal and institutional reforms to achieve "good governance" seems to be part of a larger intellectual shift to the problems and challenges of "governance" in a globalizing world. Transmitters of Weberian analysis in this milieu, however, have at times elided important nuances in Weber's own thought -- nuances that, if incorporated, might have significant implications within development discourse. The paper's objectives are: first, to conduct an intellectual history that shows how one of the greatest sociologists influenced an increasingly important area of law reform in the age of globalization; second, to surface critiques arising within that field of law reform; and third, to suggest that there may be some connection between the two. In that sense, the paper seeks to make a contribution to two discourses: to enrich the study of the history of legal thought the reception of an important thinker has shaped contemporary law and policy in a relatively understudied field in the academy; and at the same time to underscore and contextualize policy critiques that have arisen in an increasingly important field of practice.

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