Ita leads this morning with a new English translation of the decision in Empresa Eléctrica del Ecuador, Inc. (“EMELEC”) v. Republic of Ecuador. This is a pretty perplexing decision. The core issue was jurisdiction and the tribunal was asked to decide whether the representative of EMELEC before the tribunal was actually the ultimate shareholder of EMELEC  and entitled to bring the proceedings or a third party with no interest in EMELEC.

The facts are, well I’d be lying if I said they were simple. They are rather robustly opaque. EMELEC claimed against Ecuador for expropriation and denial of justice in relation to an electricity concession it ran in Guayaquil, Ecuador. Ecuador alleged that the claimant did not represent EMELEC and so could not bring proceedings on its behalf.

PRT1 was a trust  constituted to hold the ultimate shareholding of EMELEC for the benefit of the creditors and depositors of a bank that was in compulsory liquidation. The trustee of PRT1 was transferred the ultimate 100% ownership in EMELEC. The settlors of PRT1 exercised  a right of termination and substituted for it by the creation of another trust abbreviated PDT.  PDT included no right of revocation and was expressed to be irrevocable. The settlors of PRT1 and PDT attempted to revoke PDT alleging massive fraud by the trustees and created PRT2 to hold the assets of PRT1. The issue turned on whether they succeeded in doing so. The trust agreements were all governed by Bahamas law.

In essence the the tribunal held that the the construction of the trust deeds led to the result that EMELEC was owned by the trustee of PDT and not the trustee of PRT2. Since the suit was being brought by the trustee of PRT2, this meant the tribunal had no jurisdiction.

I found two issues in this decision particularly confusing. Firstly, its pretty trite law that under Article 42 of the ICSID Convention tribunals are required to judge the dispute by the proper law of the agreement. In most cases that means international law and the domestic law of the Contracting Party. In the current case the domestic law is the law of Ecuador including the conflict of law provisions of Ecuador when interpreting a Bahamian law agreement. Nope, not according to this tribunal which did not concern itself with the fact that a document is executed in a completely different legal system, and might fall to be construed in line with the principles of that system.  I could accept that result if the tribunal had adopted any principles of construction, but apparently legally construing a legal document was just too much work.

Second was the altogether odd treatment of trust law in the Bahamas and the equivalent Ecuadorian concept without any reference to the legal nature of a Bahamian law trust, its legal status in Ecuador or in international law. It appears to me that many of the issues that the tribunal seemed to find difficulty in reconciling are explained by simple doctrines of equity, resulting trusts and constructive trusts which I’m aware that Bahamian law recognise. More sophisticated concepts such as the Quistclose Trust designed to deal with trusts for a particular purpose exist in other jurisdictions (perhaps including the Bahamas) so its not at all clear why the trusts stack and fail from the language of the decision.

I accept that the facts of the case and the cross jurisdictional interaction of complicated law of trusts and equity could have made for a difficult decision, but the decision in EMELEC v Ecuador appears distinctly lacking in legal rigour.

There are two kinds of quiet. One is the quiet of peace and contentment, the quiet that forms in a still moment and is a deep contentment that pervades every nook of the soul. The kind that forms when you sit in a warm window on a cold rainy day, and stare out at all eternity.

That is not my quiet. I have an unsettling gnawing quiet. A quiet that has no reason and gives no answers.

It is a sense of anticipation and waiting. I don’t know what I ‘m waiting for, but that doesn’t change the feeling. It never does. It’s strange when you recognise a feeling familiar;  a bitter echo of past feelings; each unsatisfying.

The disquiet stems from no source. One source, many sources and no source. It’s hard to be precise about something so amorphous.

Part of it, as James alluded, is that I don’t have much to do. My deficiency, my failing, in my current stage of life is my marriage to purpose. And the absence of purpose from my waking working day I feel very lost. This feeling of being adrift assists the disquiet.

I should know better; I do know better. Its foolish to look for purpose from paid work. The greatest trick you can play on yourself is to seek your purpose from the directions of others. This isn’t the source of purpose, and it never will be.

Knowing better isn’t the same as feeling better or being better. Its strange how our emotional state can override our rational state every time. We can think anything, do anything, dream anything but feelings – ah feelings are not in our domain. You may try to think yourself happy but that is not the natural order of things. That’s why the quote books are so quick to warn that people may forget what you say but they’ll never forget how you make them feel.

Ah the obvious solution! If purpose is lacking then I must find purpose outside of work, there is a wide world outside the office doors. Go seek from there purpose. It must be the case that of all the purposes this planet offers one will be perfect.

That solution underestimates the disquiet’s power and potency. It always triumphs. It is the powerful sensation of waiting for purpose to arrive. That purpose is just around the corner, if I’ll wait just long enough. It is a sense of anticipation and waiting. I don’t know what I‘m waiting for or if will ever arrive, but that doesn’t change the feeling.

I’ve been pondering the Jessup problem today from a purely abstract perspective. I’ve been thinking about what the problem isn’t: the issues that it decided to ignore instead of explore.

The problem, although focused on international investment law in part, has not raised the three big questions of international investment law that are at the forefront today.

Firstly, there is no connection to the growing academic writing on the interaction between human rights and development. International investment law has long been criticised for focusing narrowly on the commercial and economic dimensions of investment and being divorced from its human context. There is a growing body of literature talking about reconciling these two strands of international law and for me this year’s problem would have been a great vehicle to explore this question.

Secondly there is the intriguing connection between the private obligations incurred by the parties, the nature of the BIT as an instrument of PIL and the transformative power of the ‘umbrella’ clause to upgrade contractual obligations into international legal obligations for states, even if they didn’t sign the underlying contract. This is a great secondary issue and there is plenty of material for a keen fight from both sides.

Finally there is the interesting jurisprudential question of how an individual has third party rights under international instruments, and how individuals have gone from objects to subjects in international law with the power to bring proceedings through the likes of ICSID and various IHR tribunals. I know at least one English decision that found this anomaly unexplained, and yet it goes to the heart of the idea of international investment law. The reason we have international investment law is because third party rights are thought to be directly enforceable but no theory has been convincingly articulated (to my knowledge) that explains exactly why this is the case.

I do recognise that this is my list of interesting issues in international investment law, and the problem drafters are entitled to their own list. There is a marked need to be more realistic with what can be expected from students coming to grips with a large and rapidly evolving area of law outside the remit of many public international law classrooms. That said, it would be better if the problem engaged at least one of these contemporary issues.

We were discussing the decision by the Court of Final Appeal in Leung Ka Lau and Ors v The Hospital Authority (FACV 22 & 23 of 2008) in which the CFA considered  claims by doctors employed by the Hospital Authority including their claim to to a day of rest in every seven as provided in Section 17 of the Employment Ordinance.

The doctors claimed that when they were on non-resident call, i.e. days when they were required to be available on short notice to respond to any emergencies (30 minutes) but didn’t actually have to be in the hospital, constituted a working day and not a day of rest. Their employer, who realised that this would cost them a large amount of money, fervently argued the other way.

The court held:

82.  Accordingly, a day when an employee is not entitled to abstain from working for his employer does not constitute a rest day.  When a doctor is on non-resident call it is common ground that he must remain within 30 minutes of the hospital; he must not drink alcohol; and he must remain mentally ready to respond to calls for his services.  Clearly, when a doctor is on-call, he is required to provide patient treatment should the need arise.  He is not entitled to abstain from working for the HA.  It follows that a day rostered on-call cannot qualify as a rest day under the Ordinance.  It also follows that rostering doctors on call may result in a failure to grant them one rest day in every period of seven days as required by section 17 and that such a failure would constitute a breach of the HA’s obligations

The principle seems to be that unless the employee can refuse to work that day he’s not really being given a day off.

During our discussion, one side took the view that this was an absurd principle. A lot of industries in the service sector, whether medical, financial, ICT or otherwise depend on on-call staff to satisfy demand when it arises. That doesn’t mean a demand will be made; only that it has the potential to arise. In the vast majority of cases, there won’t be the unexpected demand and the employee gets his full day of rest. Whilst you can provide for this over the long span of a contract, you can’t insist that one day in every seven should be rigidly set aside.

In response the the view was ventilated that the rationale of the rule wasn’t whether a person in fact got the day off. The rationale was the denial of freedom to plan and schedule the day. After all, what’s the point of having a day off if you can’t ever go further than a certain distance from your office. The risk and the responsibility for surges in demand  lie with the employer, and its up to the employer to have adequate staff to cover those surges and satisfy the requirements of the Employment Ordinance at the same time.

Personally I tried to not take a side in this debate but I did find myself thinking about the nature of the test afterwards. It raises intriguing questions that it doesn’t try to answer and as a matter of policy, I find that without these answers the principle is rather a blunt instrument.

Firstly, what does it mean that you’re ‘entitled’ to refuse? Does it mean that you can refuse without consequences? Or does it mean that you’re entitled to refuse, but you may be fired later for not working as hard as your colleagues or be overlooked for promotions? As Dworkin might put it, a right that’s not a ‘trump’ isn’t much of a right.

Secondly, how do we trade off being technically on-call with the likelihood of being called? If you’re 50th on the “on call” list, is your experience as qualitatively bad as the person who’s 1st? Clearly not. Does that mean if you had a sufficiently deep list of employees on call, so deep that for all intents and purposes there was an employee would never be called, would that employee be getting his entitled day of rest? My gut feeling is that he’s getting his day of rest.

Finally, perhaps especially relevant in the context of the Hospital Authority, how as a society do we trade of the utility and benefit of having our doctors where we need them – in hospitals looking after patients – against their right to take a day off? Our current balance is one day in every seven, but its not apparent to me that this is the necessary or logical trade off. Should we expect doctors to work harder because of their crucial role? Is it okay for investment bankers to work without rest because they get better annual bonuses than some GDPs? As long as the social contract is apparent when they select their profession, they should hardly be allowed to argue that they’ve been wronged. And of course, doctors are free to become investment bankers if they wish.

This case treads down some very interesting lines without really exploring them. Its broad brush approach to a very common situation leaves plenty of room for further litigation to discover the ‘true contours of the common law.’

I’ve become very incoherent in the way that I read. In the last few days, I have approximately 5 books on the go flitting from one book to another as I drift from context to context in the search for their message. I don’t get to the end of one book before I start a new one.

The books range from public international law, artificial computer intelligence, the history of astronomy and psychology. At the moment, I’m reading  Godel, Escher, Bach: An Eternal Golden Braid by Douglas R Hofstadter, Treaty Interpretation by Richard Gardiner, The Shock Doctrine: The Rise of Disaster Capitalism by Naomi Klein, The Sun Kings: The Unexpected Tragedy of Richard Carrington and the Tale of How Modern Astronomy Began by Stuart Clar and The Norton Psychology Reader by Glenn Marcus.

In two respects I find this list symptomatic of my current malaise with reading and books. I have become obsessed with non-fiction. Books are a means to acquire information and to flesh out my understanding of the world. I’m starting to feel acutely that I have little understanding of the context of myself and my world. There is so much history, so much reality that underpins the way the world works and I’m desperately cramming to try and fill in the gaps. I grab these books, distill their messages down into a simple list of propositions and try and internalise their analytic framework or message and graft those on to my world view as appropriate.

I find it saddening that there isn’t a fiction book on the list. The last fiction book I read was the The Colour of Magic by Terry Pratchett. That book I bought on a whim, read with real delight and then I never repeated the experience. The only other fiction that I’ve been indulging in is Hercule Poirot mysteries, which is an indulgence I try and save for tough days. I used to get fiction from the library, but nowadays I find it hard to find time. That means I rack up large fines which tend to compromise part of the point and purpose of a library.  

This weird imbalance worries me. There is something about the power of books and the power of stories that I need to keep me sane.

There are two ways to approach any issue, and two mind sets when an issue is identified – problems people and solutions people. These reflect different characters and different approaches to the world. They represent alternatives and we get to choose which alternative we make ours.

Problem people can identify what has gone wrong. When the issue is identified problem people focuses tightly on blame. They can see the exact point where the task went wrong and why. They are quick to identify who is to blame for failure. That doesn’t mean that they will identify publicly who is responsible for a failure, but they do have a clear idea where the buck stops.

Solutions people see as clearly as problems people what has gone wrong. However, they’re focused on the task and the process, and they quickly turn the conversation and the focus of the group away from the problem and towards solutions. Often when a solutions person first identifies a problem, they will  propose 2 – 3 solutions straight away. They don’t hide problems until they have a solution, or wait for the best moment to unveil the solution, but rather  they are solutions to create discussions about what to do next. 

I’m a problems person at heart. Like all traits it works so smoothly that it takes you a while to cotton on to its implications. But being a problems person is to abandon a process halfway. I’m starting to learn that taking control of how we see the world is the only power we really have. Viewing the world as a solutions person turns the focus of a problem away from its existence and towards its negative effects. It turns the focus of the debate towards diminishing those effects.

John Perkins’ “Confessions of an Economic Hitman”  reads somewhere between spy thriller and banality – and it’s this odd combination which makes his claims believable. In any event Perkins insists that the book is factual.

The story is simple. During much of the Cold War, from 1971 onwards, John Perkins was an Economic Hitman or EHM.

The job description of an EHM is to facilitate exploitation of  the developing world – to ensure that countries take on debt levels  that they would never repay. A burden so high that countries  struggle to meet the interest payments, let alone pay down the principle. Their people – and more importantly (for the EHM) their resources – become  tied down to a cycle of destitution; sold as slaves, oil, timber and minerals to the big American conglomerates, resources to be reprocessed into expensive finished goods and sold to the world.

To create this global serfdom, an EHM creates a fantasy, an economic miracle, that justifies incurring the debt. The fantasy is seductively simple. You invest in essential infrastructure – the bigger the better (for the American engineering and construction firms hired to build them). The new projects will boost GDP (Perkins mentions how he predicted an electricity book of 17% growth year on year for 10 years in Java, Indonesia in 1971). The boom will see a fat increase in government revenue. The new revenue will pay down the debt quickly and the government will come out of it having got its new state of the art infrastructure for ‘free’.

Of course none of these forecast fantasies account for corruption, popular riots, natural disasters, governments being overthrown (or just encouraged to fail) or war.

One especially intriguing aspect is Perkins’ insistence that the job of EHM’s is, for the most part, not part of a global conspiracy. There are no shadowy cabals in the background, cynically conspiring to control the world. Rather it is a product of the “corporatocracy” – where the purely self interested profit motive of private corporations and individuals become the driving force of national and international policy. This motivation is not malicious; rather it is a myopic perspective that does not look at the ‘big’ picture beyond the profits and benefits of the individual and the employer.

I found this book both horrific and intriguing. Horrific because of the sheer callous nature with which Perkins operated, and with which pointless short term profit  triumphed again and again when it was clear that the long term harm was irremediable. Perkins is clearly a smart fellow, and his ability to rationalise his actions, even when he could intuit how wrong they were and still continue with them speaks vividly about a darker side of the human psyche.

Intriguing because I recognise the part of Perkins’ viewpoint that inhabits my world. I can see that myopia in what is done by lawyers and the legal profession. After all we’re more interested in getting the deal done instead of the ethical, environmental and moral implications. As the author himself observes in a throw away sentence – there was a lot of moral comfort derived for people by being told what they were doing was strictly legal, especially when they knew it was immoral.

Confessions of an Economic Hitman is a pretty sobering book – one that will never let you view a newspaper or history book quite the same way again. It may even be, in that rare class, one of those books that will not allow you to live your life the same way again. It’s a fantastic eye opener.

TVB’s blatant pandering to the Motherland for National Day was rather obvious. I hope for their sake it will be appreciated across the border.

It certainly blew to shreds my last bit of belief that there was credible news to be had from our local TV stations. It was amusing how sincerely devoted to the 60th Anniversary Extravaganza they tried to appear.

Of course there were the superlatives, the 100,000 people taking part, the intercontinental nuclear missiles and unmanned observation drones being trucked past by the ton, the synchronised sloganeering of 80,000 youths turning and signing in unison.

Except that you notice that there are no people involved. There are no cheering crowds at the side. There is no sign of particular popular involvement at all.  There are a couple of obvious insiders who are looking on (our Chief Executive with his camera poised  looking like a tourist). The interested public are kept miles away, penned in behind fences and not able to see a single aspect of the parade (except the flybys, which TVB tried to spin into a positive).

It stuck me for a moment, and then you start to think why it should be so exclusionary. Then you remember its China and the Communist Party, and they wouldn’t dare let reality mar their utopian fantasy of the Motherland, which still holds true to the vision that Mao forged for it.

If you do listen between the lines of the obvious PR script that TVB’s news anchor is reading that just highlights the dark comedy. Thing’s like how the Chinese government has included all the nationalities of China for the first time (which, of course, has nothing to do at all with race riots in Xinjiang and Tibet).

I suppose you can count on some people to be swept away by nationalist fervour and celebrate away. You could at least try and not make your coverage seem like a perverse farce.

I visited Planet Bohra today, for the first time in a long time, and I feel obliged to put a few words out there about my sense of disappointment.

Planet Bohra has gone wrong.

When it first launched, I blogged about Planet Bohra – how there was something unique in the way it brought together people by religious affiliation. How it created a much broader voice for the daily concerns, lives and realities of mumineen world wide.

My concern all those many months ago was – as one of the very erudite comments on my post expressed it – that things are out of context on Planet Bohra. When you read something on any blog, you have the benefit of knowing something about the author, or learning about the author from other posts or the context in which the post you read is situated. There are many things from which you can learn something about the writer.

Since those words were written that problem has been magnified beyond all reckoning. Planet Bohra now includes feeds from Malumaat, Mumineen.org, ZenInfosys and official Jamaat feeds for a variety of locations (Singapore and Malunga are on the front page at the time of writing). The prodigious Aziz Poonawala manages to hold his own, but even he’s not able to much diminish this monopoly.

These feeds dominate for a variety of reasons. They’re the big centralised news portals that we turn to for news both of Maula and about what is going on in the rest of the world. These centralised resources have a great deal of journalistic pull as centres for the collation of information – and they are great resources. These sites are full of information and pictures of religious events, major religious festivals and visits by the great and good.

I have two reasons for my feeling of disappointment. My first concern as a reader is that Planet Bohra reflects a very narrow slice of the lives – our lives -  as lived. It reflect only a very partial selection – the image of unyielding cookie cutter hierarchical orthodoxy. As if every person spent every day attending religious events, every evening welcoming dignitaries and every night in communal prayer.

In a sense these sites are about the party line and how we’re meant to live. They are focused only – solely – on our public religious lives. What I’m curious about, what I feel is being lost in all the orthodox, is the feeling of the real Bohra pulse. How do we actually live our lives? Where are the things that make each person unique?

There are no voices on those sites talk about the every day things – how rewarding it was to get through Ramadan, how tough it is to keep kids awake entertained during the summer vacation or how curious it is that HSBC has decided to ban a browser that apparently works fine with its i-banking system. It was these voices that I wanted to hear most on Planet Bohra.

I find their silence heartbreaking.

My second concern is as a writer. I feel that context, critical context,  so essential when writing about the personal on a religious Planet is now thoroughly in peril.  Sandwiched between akhbar, with not a normal post in sight,  there’s no margin of appreciation for a post that doesn’t strictly reflect the demands of orthodoxy. Its destiny is to be out of place – an unwanted ripple of discontent in a placid lake soon to be swamped by the reassertion of orthodoxy.

This creates a sort of self-censoring feedback. I wonder now if my blog belongs on Planet Bohra – because it makes me believe that to affirm my religious identity is to simultaneously deny my freedom of speech and thought. I wonder if this post ought to be written because it too will appear on Planet Bohra and cause that momentary ripple. During that ripple, perhaps it will be misunderstood, and misinterpreted as a challenge to the orthodoxy. Perhaps others will presume to judge the quality of my faith. Lord knows I don’t need that kind of extra hassle.

A perverse form of self-censorship.

The long term solution to me appears simple. If I’m going to return to my blog – and if I wish to feel free to be myself here– then I need to keep an eye on Planet Bohra. If it must stay as the new beast it has become, then I should remove my blog of its rosters.

For the moment though, I feel disengagement is the easy way out. I like the idea of Planet Bohra, and I like the world it tries to reflect. I would like it to be broader –and to reflect more real people. I don’t believe that’s too much to ask.

I’ve embraced wittering on Twitter with a vengeance. And tweeting on Twitter is fine. The risk is not, as David Cameron so recently said, that too many tweets might make a twat (which is a given for any Tory MP), but that 140 characters is a beguiling limit.

The micro-blogging that Twitter gave birth to reflects the ideal that much can be said in a small burst of text. And that is undeniably true. Powerful ideas are often expressed in simple slogans. Twitters meteoric rise shows how fascinating the idea of strong but frequent updates can be, especially in parts of the world where Internet access  is not safe in big bursts (think China or Iran).

However, I’m not fighting an evil regime, and I have no desire to evade the Great Firewall.

My concern with Twitter is more prosaic. It’s making my ideas dumber. It’s so simple to constrict an idea to the simple idea and to limit it to the (micro) format. The challenge posed by Twitter is to make things simple. By hiding the the idea behind big explanations and fancy acronyms we fail the challenge of communication through Twitters jaundiced eyes.

At the same time I’m drawn to the words of Albert Einstein – that things should be made as simple as they can be but no simpler. I wonder if Twitter has failed me in this, or rather that I have failed my ideas by turning them over to Twitter.

When you start to think in terms of the drafting limit, when take  an idea, and wonder how to compress it into 140 characters, into a caricature of the notion you want to convey you do the idea an injustice. An injustice that you cannot repair because ideas are fleeting, and their impact transient if you decide not to lock them down through expression and the written word.

The question becomes one of balance. What do I do with Twitter that is different from this blog, and what do I do with this blog that is different from what I do with Twitter.

The obvious answer is that this blog is for longer posts. For ideas that deserve expansion. The reply to that is that I don’t know which ideas are deserving until I start expanding them, and if I commit them to Twitter first, they are committed to the world as they are and as they will be. For better or worse, once I commit something to Twitter, I rarely revise the idea in my head.

At the same time I know that the process of writing for me is a process of discovery and balance – and that perhaps things are going too smoothly and too well for me to depend on the outpouring of words that is my outpouring of grief . So in that sense perhaps the answer is to keep my blog for a day when its needed, and to convey happy banal thoughts over Twitter.

If that makes me a Twittering buffoon, so be it.