ESIL NEWSLETTER

AUTUMN 2026

Dear members,

We are writing two months after ‘Málaga’, ESIL 21st annual conference. We came together for exciting debates under a warm Spanish sun, exploring how international law is shaped and made by conflicts, and how at the same time, it shapes and makes them. We met in close vicinity to real conflicts, in which international law is tested: just over 100km away from Gibraltar and Ceuta, two focal points of recent legal debates, and with Morocco/Western Sahara across the strait. Beyond legal debates, Málaga offered history and culture (not least Picasso), and the local team spoiled us with Andalusian hospitality: many thanks, once again, to Ana María Salinas, Alejandro Sánchez de Frías, Ignacio Álvarez Arcá, Eduardo Jiménez Pineda and everyone who made us feel welcome and went to great lengths to organise an exciting event!

The Málaga  conference fell within an ‘election year’. 12 candidates had put their names forward to run for one of the up to seven seats on the Board. This was a very strong field. ESIL is fortunate to have seen such strong candidates put their names forward, and we hope to collaborate with all of them in the coming years. Seven candidates now join the Board for the next four years — three elected for the first time (Andreas Kulick, Gail Lythgoe, Caleb Wheeler), four re-elected for a second term (Veronika Fikfak, Edouard Fromageau, Patrycja Grzebyk, Daniel Peat). Veronika Bilkova, ESIL’s former Vice-President, also joins the Board as the chair of the local team in charge of the 2028 Annual Conference, which will be held in Prague. (Please see here for a presentation of the Board in its current composition.)

The new Board has a full agenda, but two tasks stand out: finances and membership. These must become a focus because ESIL’s activities at present are run at a significant deficit. The reasons for this are manifold, but one is particularly relevant. The number of our members, which has always been fluctuating, has dropped compared to the past years. At the same time, our fixed expenditure paid towards support received from the EUI, which handles most of ESIL’s day-to-day activities, remains very high. Salary costs and overheads accounted for around 3/4 of ESIL‘s expenditure during 2025-2026; at present these costs alone exceed our membership income. This is not likely to change in the short term, as the fixed costs must be paid under the terms an 2023 MOU between ESIL and the EUI that remains in force until 2028. This imbalance is a source for concern, and at the last Board meeting, we have committed to increasing the Society’s income as a priority measure, above all by growing and renewing our membership, and by exploring new ways to support ESIL’s activities. At the same time, ESIL’s reserves at present remain significant, despite the operative deficit. The Board has therefore decided not, at present, to reduce spending on activities that benefit ESIL members directly, such as travel grants or support towards joint events with partner organisations. We will have to review these costs over the course of the coming months, as we begin to consider our options for organising administrative support for the period following the expiry of the current MOU in 2028.

Finally, this is the season of prizes. The selection of Navanethem ‘Navi’ Pillay as this year’s Nobel Peace laureate has excited the international legal community, and to many feels like something of a vindication. The award celebrates an extraordinary career and at the same marks a renewed affirmation of the importance of defending and strengthening the international legal order. But prizes do not stop with the Nobel Prize. We were also delighted to hear that one of ESIL’s lifetime members, Philippe Sands, has been awarded the 2026 Peace Prize of the German book trade, an award that, since 1950, honours individuals whose scientific, literary or artisitic work helps promote international tolerance and understanding. Many ESIL members will know Philippe Sands through his academic and literary work and his interventions at ESIL events, most recently his encouragement to ‘make international law public’ at the 2025 Berlin conference. We extend our warmest congratulations to Navi Pillay and Philippe Sands!

Christian J. Tams (ESIL President) and Veronika Fikfak (ESIL Vice President)

Is International Investment Law and Arbitration Too Good to be True?

 

For years, the debate about reforming investor–state dispute settlement (ISDS) has focused on procedure: arbitrators, transparency, inconsistency, forum shopping, costs and length, etc. These are important questions, but I have been troubled by a more fundamental question: how does investment protection compare to property protection under domestic regimes? And if investment protection tries to imitate some domestic property regime, which of those domestic regimes is “a golden standard” fit and deserving for universal application?

These questions led me to write a book: Reconciling Domestic Property Regimes and International Investment Protection: Origins, Comparisons and Contestations. My starting enquiry was simple: compare how international law protects investments and how different societies understand and protect private property.

Although all societies have the concept of private property, its meaning, scope, and limits have always been contested and changing over time, depending on local needs. Some legal traditions prioritise the individual and the protection of private interests. Others give greater weight to the social function of property and the responsibility of the state to pursue general interests. In reality, most legal systems attempt to strike a balance between the two. Furthermore, domestic legal regimes designed to protect private interests vis-à-vis state interference can be positioned somewhere on the scale between individualistic and communitarian understandings of property.

For example, even industrialised and developed Western states with individualistic legal traditions restrict land use to protect the environment, to plan development, regulate markets, preserve heritage, protect public health and safety, etc. Such restrictive policy measures may interfere with private interests and may diminish the value of private property, sometimes substantially. Yet domestic legal systems do not automatically treat every economic loss resulting from regulation as a wrong requiring compensation.

In my research, I examined property regimes across Europe, North America, Asia, Latin America and Africa. What struck me was not only the diversity of understandings of property, its content and limits, but also the extent to which even Western industrialised legal systems recognise the need to accommodate competing public interests, especially during law reforms, which significantly interfere with private entitlements and inevitably affect wealth distribution. On the verge of stating the obvious, I have to say that in domestic legal systems the protection of private property has never been absolute, nor has it been detached from broader political and socioeconomic choices of societies.

Why, then, international investment law and tribunals operated on the presumption that every interference with private entitlements and wealth redistribution required compensation?

Historically, attempts to establish an international standard of property protection encountered considerable resistance from capital-importing states. What could not be universally agreed upon as the international law of property protection eventually found its way into investment treaties. Over time and with the help of arbitral tribunals, expansive interpretations of protected investments, indirect expropriation and compensations, calculated on the basis of the investment’s ability to generate future revenue, have helped create a system that can offer foreign investors protections going beyond those available under domestic property law.

This explains the backlash against ISDS and raises an uncomfortable question: Is international law merely promoting stability in economic relations, or is it cementing the current distribution of wealth and protecting it from change?

Carried on the wave of globalisation, the network of investment treaties and arbitral tribunals set out to protect investment around the world by providing a neoliberal economic outlook, which implies individualistic protection of private entitlements and minimal state interference with private rights. International investment law, often promoted as universal, imposes standards that clash with diverse domestic legal, cultural, and societal perspectives on property. This clash sometimes adds fuel to the anti-globalist, protectionist and populist rhetoric.

Human rights law adds another layer of complexity to this debate. In investment cases, human rights are sometimes invoked to justify the interference with private interests, but sometimes the right to property is used to reinforce the protection of investors. The European Court of Human Rights has developed case practice on this issue. Yet we should be careful when selectively borrowing from its jurisprudence. The European Convention on Human Rights protects possessions, but it also explicitly recognises the public interest and the right of states to control the use of property. Moreover, the European approach to property protection reflects a regional consensus and desire for stability and preservation of the current wealth distribution. It should not automatically become a universal benchmark for investment protection worldwide, especially for the regions that genuinely need legal reforms, which inevitably disrupt historical private entitlements.

At the national level, property is a significantly narrower concept than investment. Even this narrower national concept of property often clashes with local bona fide legislative reforms and executive initiatives. That means investment protection, which is considerably broader and more individualistic than property, is even more likely to conflict with state measures, making it very complicated for host states to achieve fundamental social and economic reforms.

It is true that the new generation of investment treaties explicitly includes the right to regulate. However, the number of those new treaties is limited, leaving open the question of how to interpret old treaties in which the right to regulate is not mentioned. Furthermore, even new treaties tend to be interpreted by the arbitral tribunals in the old ways.[1]

Perhaps international investment law needs to wake up from the neoliberal dream and show more curiosity for comparative analysis on how different societies organise the relationship between property, the state and the public good.

 

More about the book at this link.

[1] Wolfgang Alschner, Investment Arbitration and State-Driven Reform: New Treaties, Old Outcomes (Oxford Academic, Oxford University Press 2022) 14-15.

LEARN MORE ABOUT OUR COMMUNITY

MEET AN ESIL MEMBER: CRISTINA POPA TACHE

Member of the ESIL Diversity Advisory Body and of ESIL Task Force on Underrepresentation

Vice-Rector for Scientific Research, Innovation and Inter-Institutional Initiatives

Danubius International University

Would you like to be featured in our Meet Our Member video series?

Get in touch with the ESIL Secretariat and share your story with the ESIL community!

ANOTHER YEAR OF IDEAS, CONNECTIONS AND OPPORTUNITIES AWAITS!

As we look ahead to 2027, we invite you to continue being part of ESIL and the vibrant, international community that makes our Society what it is.

Your membership connects you with individuals across the world who share an interest in international law, creating opportunities for intellectual exchange, collaboration and  engagement.

Through our Interest Groups, Annual Conference, Research Forums and other activities, ESIL continues to bring people and perspectives together, fostering dialogue across borders and generations.

We hope you will renew your membership and continue contributing to the conversations, connections and initiatives that shape our community.

Help our community grow! Do you know someone who might be interested in ESIL? We warmly encourage you to share this opportunity with colleagues, friends and anyone with an interest in international law, regardless of their professional or academic background.

Thank you for being part of ESIL.

We look forward to another exciting year together!

🔗 Ready to rejoin ESIL?
➡️ Learn more at ESIL Membership General Information.
➡️Renew your membership for 2027 via the ESIL Membership Online Payment Platform.

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ESIL TEACHING CORNER AND TEACHING CORNER WEBINARS

 

ESIL TEACHING CORNER AND TEACHING CORNER WEBINARS

 

In today’s era of permacrisis, the ESIL Teaching Corner and the ESIL Teaching Corner Webinar Series seek to fill a critical gap: while much attention is given to what should be taught, very little focuses on how to teach international law effectively. These webinars will explore innovative teaching models—such as moot courts, legal clinics, and even creative approaches like films and theatre—while fostering academic dialogue on pedagogy.
Credentials to access the ESIL Teaching Corner are distributed to all current ESIL members via the ESIL Monthly Updates.

Click here to learn more

ESIL LECTURES

ESIL BOOK SERIES

The ESIL Book Series publishes high-quality volumes on various international law themes. The good news is that the ESIL Board has broadened the scope of the ESIL Book Series beyond the themes of ESIL Annual Conferences and ESIL Joint Events.

Proposals based on IG events, other ESIL events, and ESIL members' proposals within the scope of the Book Series are welcome. Potential editors are welcome to contact the General Editor to help shape the future of ESIL scholarly publications.

ESIL PROCEEDINGS

The ESIL Proceedings feature papers presented at ESIL events (Annual Conferences, Research Fora, and Interest Group events).

Publication in the ESIL Proceedings enables authors to disseminate their work widely and reach broader audiences without the usual delays associated with more traditional means of publication. Publication in the ESIL Proceedings does not prevent the subsequent publication of papers in academic journals or edited collections.

ESIL Proceedings are included in the EUI CADMUS Research Repository, and all the papers presented at previous events until 2024 are available here.

For further information, please do not hesitate to write to esil.papers@gmail.com.

ESIL REFLECTIONS

The ESIL Reflections offer up-to-date reflections on current issues in international law in the form of short papers that at argue one particular point that may trigger further debate in the scientific community.

The Reflections cover a wide range of topics relating to current developments in international law and practice as well as theoretical reflections in a way that is relatively accessible to non-experts. The aim is to foster discussion between ESIL members and international law scholars and practitioners more generally – in Europe, but also beyond. ESIL.

ESIL Members who have an interest in contributing are encouraged to visit the dedicated webpage for further information.