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Guillaume François Larouche

GEM-DIAMOND doctoral fellow

ESR 8 – Technocratic actors as ‘teachers’ of the rule of law: EU technical assistance, capacity-building and other pathways

As a member of GEM-DIAMOND, I am fortunate to enter a world of critical thinking and to join a community of researchers whose purpose is to produce empirical, scientific & data-driven legal research to understand normative tensions caused by mounting dissensus over liberal democracy within the European Union and the rise of alternative models outside its borders.

Host Institutions

International Courts (Trans)formations: The Role of European Lawyers in the 'Fabrique' of the International Criminal Court and the Proposed Multilateral Investment Court

Supervisors

  • Mikael Madsen
  • Jean-Frederic Morin
  • Chloé Brière

Research abstract

The view that the rule of law exported outside Europe is substantive, because it comprises liberal democratic values, has reached a certain level of consensus among European institutions and scholars. Pursuant to this view, European international law policies have focused on the creation and support of strong “international rule of law institutions,” such as international courts and tribunals, leading to their “Europeanization.” This view is generally relying on legal politics or legal normativity approaches to the study of law. Going beyond the story of law and legal doctrine, this research project mobilizes the theoretical lens provided by Pierre Bourdieu’s reflective sociology and field theory, as well as the scholarship of post-Bourdieu socio-legal scholars, and the conceptual insights provided by Bruno Latour. Using the methodological toolbox they provide – lengthy interviews, relational biographies, ‘artefacts’ analysis, and participant observation stays – this research aims to capture the daily export processes of the European conception of the rule of law by European lawyers. This research project, which takes place at the confluence of the European and international legal fields, investigates how European lawyers and the socialization instruments they use influence the process of exporting the European conception of the rule of law in the context of the (trans)formations of the International Criminal Court and the proposed Multilateral Investment Court. It suggests that the conception of the international rule of law put forward by European lawyers through the exportation process in the international legal fields depends on their own analyses and priorities and potentially diverges from the European institutional conception of the rule of law. This research project ultimately argues that the cosmopolitan composition of the international legal fields studied allows a more favourable environment for the transplantation of the European conception of the rule of law at the international level.

Research Question(s)

How do European lawyers and the socialization instruments they use influence the process of exporting the European conception of the rule of law to non-European international lawyers in the context of the (trans)formations of the International Criminal Court and the proposed Multilateral Investment Court?

Research Hypothesis(es)

The working hypothesis I formulate for my research investigation is that concepts and practices of the international rule of law exported by European lawyers are partially (in)consistent with the European institutional conception of the rule of law: it depends on the lawyers’ habitus (Bourdieu 1986) and the context of each regulatory area from which concepts and practices are exported. Some variables contained in the working hypothesis cannot be explained yet adequately in relying only on existing conceptual scholarship without empirical evidence, such as the habitus of the European lawyers. However, existing conceptual scholarship leads me to suggest that the European lawyers do exist as a “corps” (Bourdieu 1989, 543-544) capable of modulating the export process of the concepts and practices of the rule of law with its “own analyses and priorities” (Mérand 2021, 8) potentially in an (in)consistent manner with the European conception of the rule of law. Also, in that context, the Ehrlich’s “centre and periphery” lens (1971 [1913]) suggests that the European lawyers are capable of distinguishing between the centre of the European conception of the rule of law (the heart of the European’s conception) and its periphery (the elements that are subsidiary), to adapt the export processes to the specific context of the international courts studied. Specifically, I postulate that the concepts and practices of the rule of law that are exported in the context of the (trans)formations of the two international courts studied have more differences than commonalities; whereas the concepts and practices exported in the international human rights field to promote the International Criminal Court encompass a more substantive conception of the rule of law, pursuant to the Rome Statute which establishes four core international crimes. In international trade and investment, the concepts and practices exported to promote the Multilateral Investment Court encompass a more procedural conception of the rule of law, as the proposed alternative to ISDS focuses on the arbitration mechanism, and on the appointment of arbitrators and ethics. I also posit that the concepts and practices exported by European lawyers are partially (in)consistent with the European institutional conception of the rule of law, since, according to Pech’s findings (2012) the EU has traditionally promoted a “broad and substantive understanding” of the rule of law, whereas the concepts and practices exported may be (in)consistent with this conception, in accordance with the first part of my hypothesis.

Selected Case Studies

There are several reasons for selecting human rights and international trade and investment as the focus of a comparative analysis. First, because they are central to the EU political project (European Commission 2019, 4-5). Human rights have been a cornerstone of the European identity and purpose since the end of World War II (Treaty on European Union, Preamble, Article 2; European Convention on Human Rights 1950); while international trade and investment underpin the European internal market and liberalized economy, which now heavily relies on rules-based economic globalization (trade and investment are “a means to [...] export [the European values across the world]” (European Commission 2019, 16-17)). Second, these two regulatory areas are privileged tools of the EU to export concepts and practices of the rule of law; through the International Criminal Court (ICC) and Multilateral Investment Court (MIC), the EU is promoting “international rule of law institutions” (Romano 2022, 47 & 1999). Third, because these areas are highly technical, European lawyers are well positioned to export concepts and practices of the rule of law. Besides, this is consistent with the Commission’s strategy of responding to the dissensus surrounding its core values by reaching consensus in a “technocratic” manner, setting aside politics (Dinan 2017, 79).

In the regulatory area of human rights, the EU recently launched its Global Europe Human Rights and Democracy (2021) programme which aims to promote European values around the world, including fundamental freedoms, democracy, and the rule of law (Annual Report on Human Rights and Democracy in the World 2021). As part of this initiative, the High Representative/Vice- President of the European Commission, Josep Borrell, has made it clear that upholding the rule of law through participation in the global fight against impunity for the most serious crimes under international law (Annual Report on Human Rights and Democracy in the World 2021, 125-30) and support for the authority of the ICC (and other international criminal, ad hoc tribunals and truth and reconciliation commissions) are essential for the EU: “[t]he EU calls on all States to cooperate with the ICC and abide by their commitments to uphold the rule of law, whether at the ICC or in their national courts” (Council of the EU 2021). To this end, the EU is providing political, diplomatic, and financial support to the ICC, especially in the form of capacity building tools, and technical and regulatory assistance. The main capacity building activities offered by the EU include seminars, events, and trainings “aimed at fostering cooperation, sharing expertise and building national capacity” (Annual Report on Human Rights and Democracy in the World 2021, 129). Technical and regulatory assistance provided by the EU includes the development of legal tools for countries wishing to implement the Rome Statute to assist their legal professionals working on major international crimes, as well as the placement of legal professionals from ‘situation countries’ in the ICC Visiting Professionals Programme (Annual Report on Human Rights and Democracy in the World 2021, 129).

In the area of trade and investment, the EU has made clear its vision that trade and investment are inseparable from its core values and principles through its Trade for All strategy (2015). Recently, in response to the contestation and dissent over the EU-US negotiations around the proposed Transatlantic Trade and Investment Partnership, the EU modified its approach and policy regarding dispute settlement in international investment (Coman 2022). After having traditionally supported the investor-state dispute settlement (ISDS) mechanism, the EU is responding to criticism and rejection of ISDS (Miles 2013) by proposing a new institutionalized dispute-settlement mechanism, the Investment Court System. After having implemented such ICS in its recent investment agreements with third States (e.g. CETA, EU-Vietnam , and EU-Singapore), the EU now militates for the implementation of a MIC through its participation to the UNCITRAL Working Group III on ISDS Reform. This proposal is a direct response to mounting dissensus over the international regime for the protection and promotion of foreign investment, in which investors have sued states, resulting in payouts of millions (and even billions) of dollars from the losing states (see e.g., Yukos Universal v Russia, 2005). Through their participation in the Working Group III, European lawyers are using socialisation instruments to influence other countries (including allies) to follow the EU approach. For example, they are using capacity-building activities and organize meetings and presentations with stakeholders to promote EU policy (European Commission, n.d.).

Social Relevance of your Research

The social relevance of my research project relates to my intention to produce legal knowledge (Scaratti et al. 2014; Lehnert 2007; c.f. Shaw and Elger 2013) following a scientific approach for the study of a legal phenomenon (Bourdieu 1986; Holtermann and Madsen 2015 and 2021), i.e., the export process of the European conception of the rule of law by European lawyers. My approach to research is guided by a desire to contribute to the empirical turn in international legal research (Shaffer and Ginsburg 2012). Accordingly, the aim of my research project is to provide an empirical and “intelligible” understanding (Madsen and Verschraegen 2013; Holtermann and Madsen 2015) of the way global governance (Dothan 2023) is shaped through the influence of European lawyers, and the professional strategies and socialization instruments they use, on the (trans)formations of the understanding of the international rule of law in the design of international courts. My research does not engage in legal politics (considered by Ross and Holtermann 2019 [Ross 1953] as the “the formulation of conclusions in the form of instructions to the legislator or the judge”) or in the assessment of the legal normativity of the export process of the European conception of the rule of law (e.g., Pech 2013 and 2022). That said, the results of my research will allow me to ultimately engage with questions of legal policy and normativity in the context of drafting a policy brief to better inform legislators and governments in developing their international rule of law policies. In addition, throughout my PhD studies, I contribute to the dissemination of legal knowledge to a broader segment of the population including through my social media posts and blog entries on the GEM DIAMONG website.
Guillaume François Larouche is a Marie Skłodowska-Curie Doctoral Fellow within the Horizon Europe GEM-DIAMOND project (Globalisation, Europe, and Multilateralism - Democratic Institutions, the rise of Alternative Models and mounting Normative Dissensus). He is currently pursuing a triple PhD degree in European Law at iCourts, the Centre of Excellence for International Courts at the University of Copenhagen under the supervision of Prof. Mikael Rask Madsen, in International Studies at the École supérieure d’études internationales de l’Université Laval (ESEI) under the supervision of Prof. Jean-Frédéric Morin, and in Legal Sciences at the Faculty of Law of Université Libre de Bruxelles under the supervision of Prof. Chloé Brière.

An affiliated PhD researcher with the Canada Research Chair in International Political Economy at Université Laval, with the Centre de recherche en droit public de l'Université de Montréal, and with the Centre de droit européen de l'Université Libre de Bruxelles, Guillaume François holds a Master of Laws (LLM) with Concentration in International Trade and Foreign Investment from the University of Ottawa (for which he received the mention “Excellent”), a Bachelor of Laws (LLB) from Université Laval, and an advanced certificate in French and European Law from Université Paris II Panthéon-Assas.

In addition to his doctoral research, he is currently working on a book chapter preliminary entitled “ Policy trends and options for the future relationship between international tax and investment law” with Prof. Wolfgang Alschner of the University of Ottawa. He presented previous research results on the international norm against corruption as a candidate for jus cogens at the Edinburgh Postgraduate Law Conference in Scotland (UK) and on the potential adaptation of the WTO legal paradigm on “like” products to include environmental considerations at the 5th Annual McGill Law Graduate Conference in Montreal (Canada).

He is a member of the Barreau du Québec since January 2020 and practices public law at Langlois Lawyers LLP in Montreal.

Besides his research interests and law practice, Guillaume François is interested in history, visual arts, French literature, travel, outdoor activities, and sports (swimming, running, cycling, yoga, and cross-country skiing).
Academic Conferences

Larouche, Guillaume François. 2022. "International Courts (Trans)formations: The Role of European Lawyers in the 'Fabrique' of the International Criminal Court and the Proposed Multilateral Investment Court", presented at the First GEM DIAMOND Annual Conference, Brussels, 14 March 2023 [unpublished].

Larouche, Guillaume François. 2022. “International Economic Law and Peremptory Norms. The Norm Against Corruption, a Manifestation of a (Quasi) Jus Cogens?”, presented at the Edinburgh Postgraduate Law Conference 2022, Edinburgh, 16 June 2022 [unpublished].

Larouche, Guillaume François. 2022. “Adapting the WTO Legal Paradigm on ‘Like’ Products to Include Environmental Considerations: Towards a Green World Trade Organization”, presented at the 15th Annual McGill Law Graduate Conference, Montréal, 5 May 2022 [unpublished].

Forthcoming Publications

Alschner, Wolfgang and Guillaume François Larouche, “Policy trends and options for the future relationship between international tax and investment law” in Robert Danon, Sebastian Wuschka and Andreas R. Ziegler, eds, Tax Issues in International Investment Arbitration (Lausanne: Kluwer Law, forthcoming).

Larouche, Guillaume François, "Language and legal discourse at the confluence of international arbitration and the domestic judiciary", [forthcoming].

Larouche, Guillaume François. “International Economic Law and Peremptory Norms. The Norm Against Corruption, a Manifestation of a (Quasi) Jus Cogens?”, [forthcoming].