I said I wouldn't comment on the Vivendi separate opinion relating to the role of the ICSID Secretariat, and I won't, but I was struck by this part of the opinion, which makes a somewhat different point:
16. Another idea seems to be that the Secretariat is the voice of a jurisprudence constante which it is its task to advance and protect and which gives it an autonomous right of intervention. This is also profoundly mistaken and may be seriously prejudicial to the parties. In any event, it is far too early to assume the existence of such a jurisprudence and its status as law would be uncertain even if it existed. It may be recalled that in international law, there has never been a rule of binding precedent and this is so for very good reasons.
17. For the moment, the formulation of any such jurisprudence must be left to academics whilst it should be appreciated that to engage in a form of system creation in this manner or of thinking in academic models is not necessarily objective and free of intellectual prejudice or other bias. It is in any event not the allotted task of the Secretariat to assume the academic mantle and it is not, and could not be staffed for it.
So the formulation of international law jurisprudence is for academics. This made me think of Joost's long ago post wondering why trade law academics never get cited in WTO decisions. Apparently, if you are an international law academic who wants to have influence on courts, you should keep this in mind: in some areas of international law you get to "formulate jurisprudence," whereas in trade law you get nothing!
