Interview with Sir Christopher Greenwood, GBE, CMG, QC
Reported by Felicia Cheng, Squire Patton Boggs and Joanne Lau, Allen & Overy
We were very honoured to have Sir Christopher Greenwood, GBE, CMG, QC, a leading figure in international law, join us in Hong Kong.
Sir Christopher was a lecturer in International Law at the University of Cambridge and a Fellow of Magdalene College from 1978 to 1996, and subsequently the Chair of International Law at the London School of Economics until 2009. During his practice as a barrister from 1984 to 2009 (including as Queen’s Counsel from 1999 onwards), he argued numerous high-profile cases including before the European Court of Human Rights and the International Court of Justice (“ICJ”). Following election by the United Nations General Assembly and the Security Council, Sir Christopher served as a Judge of the ICJ from 2009 to February 2018. Most recently, in March 2018, he was appointed by the United States to the Iran-United States Claims Tribunal (“IUSCT”).
On 21 November 2018, Sir Christopher delivered the Annual Kaplan Lecture in Hong Kong on the topic of “Is the Age of Arbitration in International Law Drawing to a Close?” It was an engaging and insightful evening. Sir Christopher took the audience to the origins of inter-State arbitrations (with a vivid description of the 1870s Alabama Claims Case), traced the rise in popularity of investor-State and inter-State arbitrations, and dissected the reasons for the recent wave of criticism, with suggestions for potential reforms. To the relief of the audience, Sir Christopher’s conclusion on the topic of the lecture was no, the age of arbitration in international law is not coming to an end.
The HKIAC held a lunch seminar the next day – “Sir Christopher Greenwood in Conversation with Neil Kaplan CBE, QC, SBS”, during which Sir Christopher shared his thoughts over a range of topics including from his early life; his experience as a barrister and a judge; criticisms about lack of transparency in treaty arbitrations; lawyers’ working hours to his hobbies. We were grateful that he was able to sit down with us for another hour of questions for HK45 readers.
General / career
- What sparked your interest in international law? The world of international law must have been very different when you first studied the subject.
After abandoning childhood dreams of becoming an engine driver or a cavalry officer, I followed my father’s advice - “You talk so much, you might as well be paid for it” – and decided to read law!
In terms of my particular interest in international law, I have always been fascinated by history and politics. I lived in Singapore and Malaysia when I was young and otherwise travelled widely. I am happily British but have always viewed the world as wider than just Britain.
I completed my LLB (now an LLM) at Cambridge in 1977. Back then, investor-State cases were almost unheard of and inter-State cases were few and far between. That year, the ICJ had one case and its decision was that it did not have jurisdiction. Today, the ICJ is hearing 17 cases, there are numerous inter-State arbitrations in progress and more than a hundred investor-State cases.
- You have been a professor, advocate, arbitrator and judge – what role do you enjoy the most?
I have enjoyed all roles with each one involving its own rewards and challenges.
I enjoyed being a teacher for the personal relationships I was able to develop with the students, and this was possible because at Cambridge, tutorials were taught in very small groups. I taught at Cambridge for 20 years and then had thirteen very happy years at the LSE. The only part of the job I hated was marking exams. I shall be glad never to see another exam paper.
As a barrister, the highs and lows are of course the hard fought wins, as well as losses. It was an exciting job. I would say the case that made me the most uncomfortable was the Occidental v Ecuador case. I remember having to address many difficult questions from Lord Phillips and then losing spectacularly. As an arbitrator and judge, the greatest reward is in being able to contribute to the law, though I did miss teaching and advocacy when I was a judge at the ICJ.
- What has been your most challenging case during your career in international law?
I found the Pinochet case to be challenging, not least because I was only given two days’ notice to argue an appeal before the House of Lords. Whilst I successfully argued on behalf of Spain that Augusto Pinochet, the former Chilean dictator, did not have sovereign immunity and should be extradited to Spain, the case had to be heard again – one of the majority judges in the original House of Lords decision was later disqualified for failing to disclose his links to Amnesty International, which joined as interveners in the appeal. But the case was exhilarating to argue both times, as the issue of the limits on the immunity of a former head of State had never really been considered before.
I also found the Bankovic case in the European Court of Human Rights an exciting one. The relatives of people killed when NATO aircraft attacked the television and radio service headquarters in Belgrade during the Kosovo conflict in 1999 brought proceedings against all the European members of NATO. The UK organised the defence and I was the lead counsel for the States. I think most commentators thought we would lose but we actually obtained a unanimous verdict in our favour from the Grand Chamber.
- You were appointed to the IUSCT in March 2018, and are noted for being the first Tribunal member appointed by the US or Iran who is not a national of either country. Can you tell us more about your role at the IUSCT? How does it compare to your experience at the ICJ (in terms of, for example, workload and dynamics)?
By way of background, the IUSCT comprises nine Tribunal members, three appointed by Iran, three by the United States and three third country appointees (currently one from Switzerland and two from Germany). I came to be appointed as a US appointee because one of their appointees, Professor David Caron, passed away unexpectedly. I am enjoying the new role and we are currently hearing one very large case.
In terms of workload, being a US appointee means my workload is less because it is the third country section that drafts the awards. At the ICJ, it was a drafting committee that drafted the awards, and my busiest periods were being part of those committees.
At the ICJ, there are a greater variety of cases, for example, it hears diverse cases concerning matters from pollution to the Kosovo declaration of independence and the trial of a former head of State.
- Can you share your personal experience from an interesting case from when you were (i) a barrister and (ii) a judge?
One of my most interesting cases from when I was a barrister was the Pinochet case. As a judge, I also found the cases on sovereign immunity to be the most intellectually interesting because I had argued this issue so many times as a barrister.
In terms of an experience I found to be amusing, I distinctly recall an Australian advocate in a case describing something as being a “furfee”. Nobody in court had a clue what he was talking about except the Australian and New Zealand judges. I now know that a “furfee” is Australian slang for a tall story, named after the manufacturers of water tanks at which First World War soldiers exchanged gossip. It shows you how words understood in one culture may not be understood in another.
This interesting episode came up in the context of a dispute between Australia and East Timor. East Timor claimed that the Australians had bugged its cabinet rooms and thus had inside information of great help in the negotiation of a treaty. Meanwhile, the Australians raided the home and offices of the lawyer acting for East Timor. East Timor sought from the ICJ return of the papers and in the meantime, that they be sealed. Interesting issues arose as to legal professional privilege and breach of secrecy statutes. Ultimately, the dispute between Australia and East Timor was settled – which I rather regretted as I had been looking forward to hearing the case on the merits.
Developments in international law / arbitration
- The world seems to be changing and is becoming more complicated with events such as Brexit and the US-China trade war. How has the nature of disputes before the ICJ changed? What are some trends and developments in international law?
I see two big trends in international law and they are the development of human rights law and the increase in investor-State arbitration.
In terms of cases at the ICJ, I see a bigger range of States being involved in disputes. One third of the members of the United Nations have now been involved in cases at the ICJ.
There are also new subject matters and types of issues arising in disputes. For example, there is now a case pending before the ICJ concerning the move of the US embassy in Israel from Tel Aviv to Jerusalem.
Another example of an interesting subject matter is the debate over the use of the name “Macedonia” between Greece and the Republic of Macedonia. There is a large province / region in Greece known as “Macedonia”. Greece argued that the Republic of Macedonia should not use the name “Macedonia” because this could imply sovereignty over the Macedonia province / region in Greece. Due to this naming dispute, the Republic of Macedonia could not become part of the United Nations for 18 months. In the end, it became known as “The former Yugoslav Republic of Macedonia” for its accession to the United Nations. Even then, there remained some disagreement over its seating in the United Nations Chamber: as to whether it should sit under “F” (being “the former Yugoslav…”) as argued by Greece or under “M” as argued by Macedonia. It was eventually decided that it should sit next to Thailand as its name began with “The”. An aspect of that case also came before the ICJ during my time there.
- So far Asian States have faced relatively few treaty claims and Asian investors have not been as active in initiating investor-State arbitrations as their counterparts in Europe and the Americas. Do you think this will likely change in the near future?
The less frequent involvement of Asian States and Asian parties in investor-State arbitration is sometimes attributed to what is described as a cultural preference for resolving disputes through negotiation. Whether or not that is true, I do think there will be more arbitrations involving Asian States and investors; we are already seeing a steady increase.
Tips for young practitioners
- What are your three tips for preparing for a hearing?
First, know your case inside out.
Secondly, be selective in what you argue and only argue the points that will make the most difference in the outcome of the dispute. The biggest compliment that an opponent has ever given to me is that I won because I had whittled down the case to three main points. However, I realise this might not always be feasible, particularly if you act for a State, as there may be points the State wishes to make for a political reason rather than a reason related to the legal merits of the case.
Thirdly, be clear and engage with the other side and with the tribunal or court; make sure you answer their questions. Be sensitive to the arbitrator or judge’s facial expressions to make sure he or she is following what you are saying. Your job is to communicate your points to the tribunal or court.
I had two advantages when I did my first hearing as a barrister. The first was that I had been the President of the Cambridge Union during my university days. One particularly memorable experience at the Cambridge Union was a debate with Harold MacMillan (former Prime Minister of the United Kingdom), which also featured Denis Healey and Geoffrey Howe. I admit to having been incredibly nervous at the time having to speak after Harold MacMillan, who was excellent, in that debate. But the experience did wonders for my confidence later on. The second advantage I had was that I had already been teaching for around 10 years when I argued my first case; students are often just as demanding as judges.
- What advice would you give to someone who is thinking about a career in international law?
Be a good linguist and try to learn more languages. If you understand the original language (rather than relying on a translation) in which a fellow judge or arbitrator or witness is speaking, you will understand more about where he or she is coming from. That advice is from the heart as I have always been a poor linguist and have suffered for that.
Understanding history also helps. For example, the British, being on an island, do not understand how entrenched territorial disputes can become and how States may have fought and seen their people die for a piece of land, however small. I once heard a case over three square metres of land between Nicaragua and Costa Rica. It was fought with great vigour and large teams of counsel on both sides.
- What would be your advice to the Christopher Greenwood in 1978 who was just called to the Bar?
Have a plan, though there is no need to plan every detail. Be ready to take opportunities when they arise.
Learn more languages, especially French and Spanish.
Learn to touch type! I really wish I had done.