Sergio Puig

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Scholarly Contributions

Books

• Puig, S. (2021). At the Margins of Globalization: Indigenous Peoples and International Economic Law. CUP.
• Puig, S. (2019). AT THE MARGINS OF GLOBALIZATION: INDIGENOUS PEOPLES UNDER INTERNATIONAL ECONOMIC LAW. Cambridge University Press.
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  Book in progress and under contract

Chapters

• Puig, S., Shaffer, G., & Elsig, M. (2018). The World Trade Organization’s Dispute Settlement Body. In International Court Authority. Oxford University Press.
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  The World Trade Organization’s Dispute Settlement Body (with Shaffer & Elsig) in INTERNATIONAL COURT AUTHORITY, KAREN ALTER, LAURENCE HELFER & MIKAEL MADSEN, OXFORD UNIVERSITY PRESS, 2018.
• Puig, S. (2016). Blind Appointments in Arbitration. In BLINDING AS A SOLUTION TO BIAS,. doi:10.1016/B978-0-12-802460-7.00020-6
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  Arbitration tribunals typically consist of an arbitrator appointed by each party and a third, who acts as the chair, appointed by an independent authority. While arbitrators are supposed to be neutral and exercise independent judgment, practitioners concur that party-appointed arbitrators often lean in favor of the nominating party. Concerns over this lack of impartiality sparked a proposal to “blind appointments” as a mechanism against the “affiliation bias.” In this chapter, I explore the causes, potential consequences, and implementation challenges of this proposal. First, using data from the World Bank's investor-state arbitration proceedings, I explore the potential effect of this appointing system in causing affiliation bias. Second, I argue that compared to other alternatives, blinding appointments is a promising bias-reducing intervention that maintains the observed benefits of parties' participating in the tribunal's formation. Third, I explain how blind appointments may have limits as to their corrective effects and elaborate on the most obvious practical problems with its implementation. At a more general level, this chapter illustrates the need for more research to move forward an important discussion in a growing legal field.
• Puig, S. (2015). Blind Appointments In Arbitration. In BLINDING AS A SOLUTION TO BIAS IN BIOMEDICAL SCIENCE AND THE COURTS: A MULTIDISCIPLINARY APPROACH.
• Puig, S. (2013). 28. Responsibility of International Organizations and Justiciability of Disputes. In Responsibility of International Organizations. Brill. doi:10.1163/9789004256088_029
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  This chapter takes up some critical and practical aspects regarding the justiciability of disputes involving the responsibility of international organizations. It discusses some of the formal and practical limitations of the judicial function when dealing with the responsibility accruing from international organizations apart from matters of propriety, of admissibility or of jurisdiction in a technical sense. The chapter explains how immunity or privileges chiefly, as well as problems of form and policy, may give rise to the non-justiciability of disputes in this context. It describes factors militating in favor of justiciability of disputes involving international organizations, observing how the trend towards justiciability has also impacted organizations. The chapter discusses some of the special factors that make justiciability a more complex function in this legal environment given the nature of the subjects. It discusses different aspects of the law of responsibility of international organizations through the lenses of global administrative law. Keywords: global administrative law; international organizations; law of responsibility

Journals/Publications

• Kucik, J., & Puig, S. (2022).

  Do International Dispute Bodies Overreach? Reassessing World Trade Organization Dispute Ruling

  . International Studies Quarterly, 66(4). doi:10.1093/isq/sqac074
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  Abstract Compliance with World Trade Organization dispute rulings declined in recent years. Governments frequently accuse the Appellate Body (AB) of exceeding its mandate by relying on precedent despite having no such authority. Is this criticism fair? We use new data on over 5,000 applications of legal precedent in AB rulings to test competing hypotheses. The “legal coherence hypothesis” says that legal systems adhere to precedent because they have strong incentives to appear consistent in their rulings over time. Alternatively, the “adaptation hypothesis” says that legal systems respond to political resistance, such as noncompliance, by subtly modifying precedent. The results lend greater support to the “adaptation hypothesis.” The AB is much more likely to drift from previous rulings when those decisions failed to induce compliance. The results speak to common criticisms about the intransigence of international legal systems and the ways in which international case law evolves.
• Puig, S. (2022).

  The fatigue of multilateralism: A new hope for international law—Afterword to the Foreword by Karen Alter

  . Icon-international Journal of Constitutional Law, 20(1), 45-51. doi:10.1093/icon/moac024
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  Abstract Karen J. Alter’s Foreword describes how the history of international law is, to a large extent, the history of modern capitalism. Her regime complexity approach shows the political nature of international law and its distributional consequences. But international law also is a cultural product. In this sense, international law is dynamic and can be responsive to rapid social change. Any potential change of international law, therefore, must be understood historically and within the context of the changes in the ideas that led to an American “world order.” Hence, I argue that the current transformation of international law is not caused solely by changing power imbalances and geopolitics, but also by cultural change. In this Afterword, I use Alter’s provocatively ambitious Foreword to sketch what international law may say about social changes and pose that these changes also signal a breakdown in the structures that supported Alter’s multilateral international law: a contrived view of the state; the use of law to normalize colonial inequities; the deployment of international organizations to advance the idea of individual choice; and international law as a primarily spatial (rather than temporal) phenomenon.
• Puig, S., & Kucik, J. (2021). Extending Trade Law Precedent. VAND. J. TRANSNAT'L L., 54(539).
• Puig, S., & Ratner, W. S. (2021). Investor Accountability: Direct & Indirect Actions. J. INT'L DISP. SETT., 12.
• Waibel, M., Puig, S., & Claussen, K. (2021). Introduction to Volume 24, 2021. Journal of International Economic Law, 24(1), 1-3. doi:10.1093/jiel/jgab009
• Puig, S. (2020). Debiasing International Economic Law. 30 EUR. J. INT'L L..
• Puig, S. (2020). Symposium, Debiasing International Economic Law. European Journal of International Law, 30(4).
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  Symposium, Debiasing International Economic Law, EUR. J. INT'L L.__ (under peer review).
• Puig, S., Scheitrum, D., Robertson, C. T., Joiner, K. A., Scheitrum, D., Schaefer, K. A., Schaefer, A., Robertson, C. T., Puig, S., & Joiner, K. A. (2020). Indemnifying precaution: economic insights for regulation of a highly infectious disease.. Journal of law and the biosciences, 7(1), lsaa032. doi:10.1093/jlb/lsaa032
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  Economic insights are powerful for understanding the challenge of managing a highly infectious disease, such as COVID-19, through behavioral precautions including social distancing. One problem is a form of moral hazard, which arises when some individuals face less personal risk of harm or bear greater personal costs of taking precautions. Without legal intervention, some individuals will see socially risky behaviors as personally less costly than socially beneficial behaviors, a balance that makes those beneficial behaviors unsustainable. For insights, we review health insurance moral hazard, agricultural infectious disease policy, and deterrence theory, but find that classic enforcement strategies of punishing noncompliant people are stymied. One mechanism is for policymakers to indemnify individuals for losses associated with taking those socially desirable behaviors to reduce the spread. We develop a coherent approach for doing so, based on conditional cash payments and precommitments by citizens, which may also be reinforced by social norms.
• Puig, S. (2018). The Internationalization of Tobacco Tactics. DUKE J. COMP. & INT'L L., 29(3), 50.
• Puig, S. (2019). Contextualizing Cost-Shifting: A Multimethod Approach. VA. J. INT'L L, 261, 58.
• Puig, S. (2019). Debiasing International Economic Law. European Journal of International Law, 30(4), 1339-1357. doi:10.1093/ejil/chaa001
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  Abstract A flourishing number of bodies evaluate the conduct of government officials against broad standards, decide complex questions of scientific probity and calculate the present value of past decisions. The effects of implicit biases (systematic patterns of deviation from rationality in judgment) impact the assessment of these issues, which are central to international economic law. Such effects are well understood by psychologists and increasingly confirmed by experiments involving legal actors, including judges. In this article, I provide three concrete examples of implicit biases affecting international tax, trade and investment adjudication, and I call for the incorporation of mechanisms to overcome such biases as well as their strategic exploitation by litigants. At a conceptual level, I propose a typology to think of ‘debiasing tools’ for international adjudication – mechanisms that can act as a centrepiece of coordination of information rather than mere inoculants of the habits of mind on adjudicators. At a normative level, I pose that biases may impact confidence in dispute settlement systems and that both concerns for sovereignty and a predilection for negotiated solutions make international economic law ripe for testing these interventions.
• Puig, S. (2019). Essay, Investor Responsibility: The Next Frontier in International Investment Law (with James Gathii). AM. J. INT'L. L. UNBOUND, 113(1).
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  Essay, Investor Responsibility: The Next Frontier in International Investment Law, 113 AM. J. INT'L. L. UNBOUND 1 (2019) (with James Gathii, symposium editors).
• Puig, S. (2019). Essay, The United States-Mexico-Canada Agreement: A Glimpse into The Geoeconomic World Order. American Journal of International Law, 113(56).
• Puig, S. (2019). International Indigenous Economic Law,. 52 U.C. DAVIS L. REV. 1243 (2019)..
• Puig, S. (2019). International Indigenous Economic Law. U.C. DAVIS L. REV., 52(1243).
• Puig, S., & Gathii, J. T. (2019). Introduction to the symposium on investor responsibility: The next frontier in international investment law. American Journal of International Law, 113, 1-3. doi:10.1017/aju.2018.97
• Puig, S., & Magraw, D. (2019). Symposium, Model Green Investment Treaty: International Investment and Climate Change (with Daniel Magraw et al). Journal of International Arbitration, 36(95).
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  Symposium, Model Green Investment Treaty: International Investment and Climate Change, 36 J. INT’L ARB. 95 (2019) (with Daniel B. Magraw et al.).
• Puig, S. (2018). Imperfect Alternatives: Institutional Choices and the Reform of Investment Law,. AM. J. INT'L. L..
• Puig, S. (2018). Network Analysis and the Sociology of International Law i. Research Handbook on the Sociology of International Law, Eds. Hirsh & Land, Elgar, 2017.
• Puig, S., & Magraw, D. (2018). Symposium, Greening Investor-State Dispute Settlement (with Daniel Magraw). Boston College Law Review, 59(2717).
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  Symposium, Greening Investor-State Dispute Settlement, 59 B. C. L. REV. 2717 (2018) (with Daniel B. Magraw).
• Puig, S., & Shaffer, G. (2018). Imperfect Alternatives: Institutional Choices and the Reform of Investment Law. AM. J. INT'L. L., 112(3), 50.
• Anaya, S. J., & Puig, S. (2017). MITIGATING STATE SOVEREIGNTY: THE DUTY TO CONSULT WITH INDIGENOUS PEOPLES. University of Toronto Law Journal, 67(4), 435-464. doi:10.3138/utlj.67.1
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  Few areas of international law practice illustrate the tensions between business and human rights as well as the implementation of the duty to consult with indigenous peoples. Consultations give indigenous and tribal peoples a safeguard for protection of their rights when confronted by the decisions of governments and business enterprises that may directly affect them. While states, non-governmental organizations (NGOs), and corporations are starting to rely on, and to take, this duty seriously, states struggle with tailoring adequate processes, NGOs often argue that the duty provides indigenous peoples with an absolute right to give or withhold consent, and corporations use different strategies to limit the scope of consultations. Based on two case studies in Latin America, we identify divergent positions on the duty to consult – positions we call instrumentalist, consent-or-veto power, and minimalist – and we explain the main elements of each of these positions. After clarifying common imprecisions, we ...
• Puig, S. (2017). Experimentalism, Destabilization and Control in International Law: Afterword to Laurence Boisson de Chazournes’ Foreword. European Journal of International Law, 28(4), 1267-1273. doi:10.1093/ejil/chx082
• Shaffer, G., Puig, S., & Elsig, M. (2017). The Law and Politics of WTO Dispute Settlement. RESEARCH HANDBOOK ON POLITICS OF INTERNATIONAL LAW, 269-306. doi:10.4337/9781783473984.00019
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  What is the relationship between politics and international law? Inspired by comparative politics and socio-legal studies, this Research Handbook develops a novel framework for comparative analysis of politics and international law at different stages of governance and in different governance systems. It applies the framework in a wide range of fields—from human rights and environmental standards, to cyber conflict and intellectual property—to show how the relationship between politics and international law varies depending on the sites where it unfolds.
• Shepherd, A., & Puig, S. (2017). Non-discrimination and the role of regulatory purpose in international trade and investment law [Book Review]. Melbourne Journal of International Law, 18(2).
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  Review(s) of: Non-discrimination and the role of regulatory purpose in international trade and investment law, by Andrew D Mitchell, David Heaton and Caroline Henckels (Edward Elgar, 2016) 192 pages, Price 75 (Hardcover) ISBN 9781785368103.
• Victor, D. G., Puig, S., Hafner-burton, E. M., Victor, D. G., Puig, S., & Hafner-burton, E. M. (2017). Against Secrecy: The Social Cost of International Dispute Settlement. Yale Journal of International Law, 42(2).
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  Three decades ago Owen Fiss published a landmark article - Against Settlement - which argued that the rising popularity of pretrial settlement and alternative dispute resolution was an unwelcome trend. It sacrificed the public benefits of complete and transparent adjudication for the private expedience of settling disputes. In this Article, we propose that international law is on the cusp of its very own settlement crisis.As international governance is taking on increasingly more difficult and demanding topics, firms and governments have radically expanded the use of international courts to resolve complex legal disputes. In their effort to become more legitimate and effective, these bodies have adopted a wide array of reforms aimed at creating more systematic adherence to procedures as well as greater transparency - much as many national legal systems have undergone reform in response to Fiss-like concerns. Using a unique dataset on all investor-state arbitrations under the World Bank’s International Centre for Settlement of Investment Disputes (ICSID), we show that those reforms are failing in part because parties have found ways to use pre-judgment or ‘out-of-court’ settlement to hide relevant information and halt inconvenient disputes. In fact, such settlements are the dominant means by which parties keep the outcomes of litigation secret.We show, statistically, which factors are associated with secret settlement of investor-state disputes. We also show that those factors are closely related to the same factors that legal scholars have identified theoretically and empirically as important explanators of settlement in national courts. Scholars and practitioners of international law have tended to view dispute resolution as an unalloyed good even when it is done in private—exactly the bias Fiss warned about long ago. We argue that investor-state disputes increasingly entrain issues that are important for public policy and not merely matters that should be resolved in private. Reforms, such as stronger disclosure rules and supervised settlements, will be needed to stem the settlement crisis in international law and yield a more consistent, coherent, and legitimate corpus of foreign investment law.
• Puig, S. (2016). Blinding International Justice. Va. J. Int'l. L..
• Puig, S. (2016). Sugar and the Making of International Trade Law. By Michael Fakhri. Cambridge, New York: Cambridge University Press, 2014. Pp. xvii, 250. Index. $99.. American Journal of International Law, 110(2), 415-419. doi:10.5305/amerjintelaw.110.2.0415
• Puig, S. (2016). The Tobacco ‘Carve-Out’ in the TPP—Unfair or Too Little, Too Late?. Yale Journal of Health Policy, Law, and Ethics.
• Puig, S. (2016). Tobacco & International Courts. Harv. Int'l L. J..
• Shaffer, G., Puig, S., & Elsig, M. (2016). The Extensive (But Fragile) Authority of the WTO Appellate Body. Law and contemporary problems, 79(1), 237-273. doi:10.7892/boris.84456
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  The authority of an international court (IC) is not necessarily evolutionary and its development unidirectional. This article addresses the authority of the Appellate Body (AB) of the World Trade Organization (WTO) and shows how it rapidly and almost immediately became extensive, but has since exhibited signs of becoming more fragile. The article applies a typology of IC authority developed by Alter, Helfer and Madsen (2014) and explains the transformation from narrow authority (a dispute resolution venue under the GATT based on political negotiations) to extensive authority (a judicialized WTO dispute settlement system with a sophisticated case law) and presents empirical indicators of the rise of the AB’s authority. Such rapid development of extensive authority is arguably a unique case in international politics at the multilateral level. That authority nonetheless remains fragile, and shows signs that it could decline significantly for reasons we explain.
• Strezhnev, A., & Puig, S. (2016). Affiliation Bias in Arbitration: An Experimental Approach. JLS. doi:10.2139/ssrn.2830241
• Puig, S. (2015). Labor Protection & Investment Regulation: Promoting A Virtuous Circle. Stan. J Int'l L..
• Puig, S. (2015). The Extensive (but Fragile) Authority of the WTO Appellate Body. Law and Contemp. Probs.
• Puig, S. (2015). The Merging of International Trade & Investment Law. Berkeley J. Int'l L..
• Puig, S. (2015). Watch Out, Joe Camel Is Back: Big Tobacco and the TPP. The Huffington Post.
• Puig, S. (2014). International Regime Complexity & Economic Law Enforcement. Int'l Eco. L..
• Puig, S. (2014). No Right Without a Remedy: Foundations of Investor-State Arbitration. J Int'l L..
• Puig, S. (2014). Social Capital in the Arbitration Market. Eur. J. Int'l L..
• Puig, S. (2013). Investor-State Tribunals and Constitutional Courts: the Mexican Sweeteners Saga. Mexican law review, 5(2), 199-243. doi:10.1016/s1870-0578(16)30024-5
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  This article tackles the complex question of the relationship between international and domestic adjudicatory bodies. It does so by analyzing the debate between liberals and developmentalists over the effects of investorstate arbitration tribunals on domestic courts. For liberals, investor-state tribunals are a positive complement to domestic judicial institutions for their ability to “de-politicize” investment disputes, leading to economic policy stability that encourages foreign investment. For developmentalists, the same international alternatives reduce institutional quality by allowing powerful actors such as powerful corporations to skirt local judicial institutions. Through a comprehensive analysis of the negotiations of Chapter Eleven of NAFTA and the recent cases in the sweeteners conflict between Mexico and the United States, this article attempts to address how investor-state arbitration tribunals and constitutional courts interact and affect each other. The case study reveals two important lessons to this debate: i) scholars arguing against investor-state arbitration on the grounds of “circumvention” of domestic courts may do well to calibrate the debate of the use of remedies as one of added remedial possibilities in complex litigation; ii) those defending investor-state arbitration on the grounds of “depoliticization” of investment disputes may do well to consider the veto power wielded by international adjudicatory bodies that impact the judiciary and political systems of the host country.
• Puig, S. (2013). Recasting ICSID's Legitimacy Debate- Towards a Goal-Based Empirical Agenda. Fordham International Law Journal, 36(2).
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  INTRODUCTION 466 I. ORIGIN: LAW, POLITICS, AND ECONOMICS 471 II. FUNCTION: THREE GOAL-BASED CLAIMS 475 A. Background 476 B. Specialization: International Investment Disputes Settlement 481 C. De-Politicization: International Economic Legalization 484 D. Stabilization: International Public Policy Institution 488 III. ASSESSMENT: EVALUATION, EVIDENCE, AND CRITIQUE 492 A. Facilitating Conflict Avoidance, Access to Justice, and Dispute Settlement 492 B. Limiting Abuses of Diplomatic Protection 495 C. Securing Stable and Increasing Flow of Resources .... 498 CONCLUSION 501
• Puig, S., & Brown, C. (2012). The Secretary-General’s Power to Refuse to Register a Request for Arbitration under the ICSID Convention. ICSID Review: Foreign Investment Law Journal, 27(1), 172-191. doi:10.1093/icsidreview/sis003
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  The main purpose of this article is to assess the practice of ICSID in the process of registration of arbitration requests and to provide a practical review of the main case-related function of the Secretary-General. Until recently, Article 36(3) of the ICSID Convention had been relatively uncontroversial. However, some critics have argued that it is becoming more difficult to persuade the Secretary-General to register a request for arbitration than it is to persuade an arbitral tribunal to exercise jurisdiction over a claim, and have noted that this is “troubling, given that there is no appeal open to a putative claimant should the Secretary-General refuse to register a request for arbitration.” Others have harshly criticized the Centre for declining to refuse the registration of certain claims. In light of this debate, the Centre’s renewed emphasis on timeliness in the registration process and the adoption of the new Rule 41(5), it is appropriate to consider the purpose and operation of the Secretary-General’s screening power. This evaluative process is complex, given that the Centre publishes only limited information about its decisions to refuse to register requests for arbitration. However, in this article we have considered all the examples reported by ICSID staff where claims were found to be “manifestly outside the jurisdiction of the Centre”. Of the 13 occasions on which the Secretary-General has refused to register a request for arbitration, this article covers eight such instances, while excluding (at least) two known instances where the requesting parties apparently expected the refusal, so that they could set in motion another procedure for the settlement of the dispute.
• Puig, S., & Brown, C. (2011). The Power of ICSID Tribunals to Dismiss Proceedings Summarily: An Analysis of Rule 41(5) of the ICSID Arbitration Rules. The Law and Practice of International Courts and Tribunals, 10(2), 227-259. doi:10.1163/157180311x582116
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  Rule 41(5) of the ICSID Arbitration Rules essentially provides that an ICSID tribunal may dismiss a proceeding summarily if the respondent files an objection within 30 days of the constitution of the tribunal that the claim is “manifestly without legal merit”. In the five years since the introduction of the Rule in April 2006, four ICSID tribunals have considered the provision, with two decisions being handed down in December 2010. In this article, the authors describe the cases decided by these tribunals, and examine the way in which they have interpreted and applied Rule 41(5). The authors’ analysis highlights the large measure of consistency in the way that ICSID tribunals are handling objections under this provision, and sets out a useful and timely guide to counsel and arbitrators on the use of this procedure.
• Puig, S., & Kinnear, M. (2010). NAFTA Chapter Eleven at Fifteen: Contributions to a Systemic Approach in Investment Arbitration. ICSID Review: Foreign Investment Law Journal, 25(2), 225-267. doi:10.1093/icsidreview/25.2.225
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  MORE THAN 2600 BILATERAL AND multilateral investment treaties (BITs) have been concluded since 1959. Although originally concluded between developed and developing countries, more recently they have been entered into by developed countries inter se and developing countries inter se. Similar in content, they provide for the security of foreign investment and usually offer investor-State arbitration for dispute resolution. BITs generally stipulate which procedural rules are applicable to a dispute. The most commonly referenced rules
• Polasek, M., & Puig, S. (2007). Parkerings-Compagniet AS v. Republic of Lithuania (ICSID Case No. ARB/05/8) (Award, September 11, 2007). ICSID Review: Foreign Investment Law Journal, 22(2), 446-454. doi:10.1093/icsidreview/22.2.446