A Swiss National Science Foundation (SNSF) Research Professor of International Law at the Graduate Institute, Thomas Schultz presents here his current research activities related to transnational stateless law, international law, investment arbitration, law and Shakespeare, as well as his varied methodological approaches.

You teach a course called “Law without the State” and, at King’s College, London, you teach “Law of Contracts”. It is a very interesting combination! What are your research interests?

I have several research interests, running in parallel. Transnational law, or law without the state, is just one. The question there is why we define and look at law in a certain way and how we have come to associate law with the state. I look at rhetorical and epistemological reasons, but also at “self-preservation interests”, that is, the fact that looking at law from the state’s perspective allows us to preserve certain concrete interests. My next article dealing with this matter will come out in the next few weeks in the North Carolina Journal of International Law and is titled “Non-Analytic Reasons against Law without the State”. Non-analytic reasons refer to the variety of reasons – not inspired by jurisprudence or linked to legal concepts – for which people look at law as state law. I consider those reasons non-analytical because they are not driven by the analysis of the concept itself.

In the same strand, there is a book chapter, “Life-cycles of International Law as a Noetic Unity: The Various Times of Law-thinking”, that will soon be published in International Law and Time: Narratives and Techniques (ed. by L. Pasquet, K Polackova van der Ploeg and L. Castellanos Jankiewicz and published by Springer). The idea of this contribution is that law is a “noetic unity”, something that exists only in our minds, unlike for instance a chair that is still there when we stop thinking about it. If we all stop thinking about law, law effectively disappears. This also means that we can define law in any way we want, because there is no inherent real-world constraint imposed upon us when we define the concept of law. When we define law, we want to capture something we create by the very fact that we are defining it; we are not trying to define something that exists out there independently of us. In the chapter, I then discuss the different temporalities, the different salient moments which mark how we collectively think about law. It isn’t a history of the idea of law; it is simply an inquiry into the ways in which we could conceptually understand what moments in time and what flows of time are likely to influence how we define what law is. (See here for more information on the outcome of Professor Schultz’s first research project – Ed.)

Separate from that, I have a big project – the core of my funding from the Swiss National Science Foundation – which analyses the concept of comity, and more precisely the ways in which courts and states have used comity for different purposes. With my two research assistants, we have nearly completed a book titled The Principle of Comity in Public and Private International Law. It is a straightforward black-letter law book about how judges and arbitrators have used the concept of comity and how it has evolved, with a bit of theory at the end on the implications of comity upon interactions between legal orders and also a small qualitative analysis as we examine how the number of uses of comity has evolved over time.

An additional strand of my research is an empirical study on investment arbitration carried out jointly with Professor Cédric Dupont. We tackle questions such as: What are the effects of investment arbitration on states and investors? What are the types of interests that states, investors, arbitrators, NGOs and arbitration institutions have in the system as it is designed today? How do these interests act as drivers of change or impediments to change? The point of our analysis is to account for the likely evolution of the investment arbitration system based on the analysis of interests at stake. The project is based on a dataset we have created of more than 800 investment arbitration claims, which we use to statistically test a number of hypotheses.

I am also doing some general research on arbitration. For example, together with Tom Grant (Cambridge), we are writing the Oxford Very Short Introduction to Arbitration, which is to appear in 2018, and with Federico Ortino (King’s College London), we are editing the Oxford Handbook of International Arbitration. A textbook on arbitration is also in the making, with Stavros Brekoulakis (Queen Mary, London).

Finally,  I am involved in a long-term project with Fuad Zarbiyev called “The Making of Transnational Law”, which examines how transnational law is concretely made, by which actors, through which processes.

From our discussion, it transpires that you look at international law from a philosophical perspective, from an empirical perspective, but also from a positivist, “black-letter law” perspective. How do you determine the nature of your research strategy when engaging in a new research project?

In principle, the research question drives the methodology: depending on what you want to know, you choose your methodology. In reality, it also goes the other way around. For instance, when you co-author some work, you already have a sense of the methodology that would best fit your collaboration. For instance, I wanted to work with Professor Dupont for several reasons, personal and professional, but I could not really do black-letter law with him. So there is a dialectical relation between the research question and the method: the method effectively determines your day-to-day work – reading cases, doing statistics, mentally playing with abstract concepts, etc., but also collaborating with specific people; this then retrospectively influences your choice of research questions.

You teach “classic” law, but also theory. How would you describe these two experiences? Different or similar? Are they received differently by students?

It is easier to teach law students what they are used to be taught, that is, doctrinal analysis – cases, legislation and statutes. Fair enough: this helps them in their future interactions with judges, arbitrators, clients and other lawyers or when advising a company manager regarding an envisaged course of action. Law students tend to be less used to thinking in the abstract and to using concepts and ideas which have their natural habitat in other disciplines such as anthropology, sociology or political science. To me, the point of my teaching at the Institute is not so much the substance of what I teach, but it is to push students to challenge their mindset, to make it clear to them that they can think differently about legal questions.

In that regard, I might mention another project. I am working on a special issue of the Journal of International Dispute Settlement on “Shakespeare and International Dispute Settlement”. I do this with the legal philosopher François Ost (Université Saint-Louis, Brussels), my friend and lifelong mentor. We try to explain why it makes sense for lawyers to think about literature and theater, and how one can understand through theatre and literature some of the values that undergird the way we think about justice in law. Many of these values are indeed beautifully reflected in Shakespeare’s plays. Shakespeare’s social representations of law and the role of law have shaped his vision about life and society; his visions about life and society should perhaps influence us back in our representations of law and its role.

By Oana Ichim, PhD Candidate in International Law