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Max Planck Encyclopedia of International Procedural Law [MPEiPro]

Law Firms and International Adjudication

Sara Dezalay

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 20 June 2024

Subject(s):
Jurists — Sociology of international law

Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.

A.  Introduction

1  Two parallel developments have loomed large in the institutionalization of the international legal landscape in the past four decades. The dramatic expansion of international adjudication—with the multiplication of international and regional tribunals and the growth of international arbitration (Alter, 2014; Proliferation of International Courts and Tribunals)—has contributed to the increasing judicialization of ‘mega politics’ at the domestic and international levels (Hirschl, 2008). On the other hand, from the beginning of the 1980s, a wave of corporate reorganizations, the opening of new markets like the Single Market for Europe, and the internationalization and globalization of deregulated financial markets facilitated the expansion and diffusion of a model of organization of the legal profession: the ‘Wall Street’ model of the multinational corporate law firm (Dezalay 1992; Dezalay and Garth, 2012). Thirty years ago, Big Law was a United States (‘US’) phenomenon. In 2015, just four of the ten largest law firms were US based (Abel and others, 2020).

2  Interestingly, while these two phenomena have each triggered a wealth of studies, they have seldom been approached together. The dramatic acceleration of the pace of institutionalization of the international scene in the past 30 years, and with it the growth of the marketplace for international justice, has fuelled a recent interest for international lawyers in legal scholarship (d’Aspremont and others, 2017; Terris and others, 2007). These studies channel attention to the role international lawyers play to sustain the authority of international dispute settlement mechanisms, with a focus, specifically on the representativeness of international lawyers (International Litigation Community; Representativeness of International Adjudicatory Bodies).

3  On the other hand, the expansion of the Wall Street law firm model has been foremost approached under the purview of the US sociology of the legal profession and from the viewpoint of drivers of legal globalization. Galanter and Palay’s seminal study (1991) underscores that 1980s events, particularly financial-legal deregulation, increased the demand for business law and fostered a process of concentration of corporate law in large global law firms, as well as international expansion (see Flood, 2007).

4  Read in parallel, these two bodies of scholarship corroborate that investment arbitration, and now also inter-state adjudication (Romano, 2003; Kumar and Rose, 2014) have become much more the domain of multinational corporate law firms than in the past.

5  However, studies that channel attention to the nexus between these two phenomena provide partial explanations. The boom of investment arbitration from the early 2000s—against the backdrop of Argentina’s economic crisis and the growing number of disputes involving states in the North since—has fuelled a grey literature that criticizes the characteristics of the professional market of international arbitrators as a ‘mafia’ or ‘inner mafia’, where the position of prominent members as partners at corporate law firms is seen as a sign of bias of international dispute mechanisms in favour of corporate interests. Eberhardt and Olivet’s report underscores the role played by emergency legislation taken by the Argentinian government to respond to its 2001–2002 economic crisis as a driver in the early 2000s boom of international investment arbitration, arguing that ‘arbitrators have failed to consider anything but corporations’ claims of lost profits in their rulings’ (Eberhardt and Olivet, 2012, 8). On the other hand, the ‘backlash’ (Waibel and others, 2010) against international justice institutions has triggered debates—and with them, foci—that are segmented according to disciplinary boundaries. Where private international lawyers emphasize the ethical self-regulation of international arbitrators (Muir Watt and Fernández Arroyo, 2014), debates in public international law tend to pinpoint the detrimental effects of the fragmentation of international law (Koskenniemi and Leino, 2002), and the symbolic and financial costs of the prominence taken by adversarial litigation before the International Court of Justice (ICJ) (Crawford and others, 2013).

6  A major difficulty with these accounts is that they tend to reproduce discourses that are produced by professionals of international adjudication themselves. The transnational arbitral community provides an emblematic example. Criticisms of the bias of arbitrators tend to focus on perceived conflicts of interest fostered by the ‘double-hatting’ position of arbitrators—be it as partners within multinational corporate law firms (Eberhardt and Olivet, 2012) or as ‘moonlighting’ ICJ judges (Bernasconi-Osterwalder and Dietrich Brauch, 2017). However, such accounts channel attention towards the rhetoric that sustains the distribution of professional positions in international law along distinct functional, institutional, and normative divisions of labour, predominantly between the so-called public side of international justice through inter-state adjudication and the private side of international justice, dealing with transnational business disputes. Yet, the perceived benefits of exclusiveness within the transnational arbitral community revolves around the credibility of insiders of the ‘mafia’ of arbitrators who reinforce their status precisely by publishing scholarly articles on international commercial arbitration (see Gaillard 2015). On the other hand, the functional perspective on the ICJ obscures the scholastic work at play in (re)producing the authority of this side of international justice (see Sacriste and Vauchez, 2007).

7  To go beyond these oppositions, this entry adopts a political sociology approach to move away from the professional and institutional categories that these discourses draw on. This strategy can be helpful to step outside the inner-normative order of international courts (Sociological Approaches to International Adjudication). Mapping the social spaces in which professionals of international justice are situated—by looking at their biographies and professional strategies—has proven relevant to trace the correlation between the structure of professional markets for international justice, and the authority of international dispute settlement mechanisms over time (Dezalay and Garth 1996; Dezalay and Dezalay 2017; Epistemic Communities in International Adjudication).

8  First, this approach can help understand the role played by law firms—foremost the Wall Street model of law firm organization and litigation—in the ongoing transformation of the structure of professional markets for international adjudication. The growing prominence taken by law firms in international adjudication including, recently, inter-state adjudication, has been noted to be a driver of changes in litigation strategies (Litigation Strategy). Beyond, focusing on professional strategies as well as the changing profiles of international litigators is essential to understand how and why professional hierarchies, including within the so-called ‘international bar’ or ‘mafia’ of the ICJ (Pellet, 2000) of inter-state adjudicators, are evolving under this push.

9  Second, it can be a powerful entry-point to account for the role played by international adjudication itself in the transformation of the social and political structure of the current phase of globalization (Legitimacy of International Adjudication). With the prominence taken by private contracts in transnational governance (Cutler and Dietz, 2017) since the 1980s, law firms generally and multinational US and United Kingdom corporate law firms specifically are increasingly at the forefront of redefining the symbolic and practical divide between the public sphere and private interests (Vauchez and France, 2021). They are also playing a key role in fostering international adjudication as a key site to negotiate, justify, and transform the symbolic and practical divide between the Global North and the Global South (Dezalay, 2021).

10  To unpack this thesis, this entry proceeds in three steps. The following section briefly explains the approach adopted in this entry, which builds on an important scholarship on legal globalization, anchored in structural sociology. Based on two previous studies (Dezalay and Dezalay, 2017, as well as Dezalay 2016), the second section compares the contrasted dynamic of expansion of inter-state adjudication and international arbitration from the 1980s. It suggests that the structuration of the international bar of the ICJ into a professional monopoly played a paradoxical role from the 1980s: that of contributing to the symbolic authority of the ICJ as the ‘world’ court; but that also of being more vulnerable to external shocks, including the increasing prominence of multinational corporate law firms. The concluding section builds on an empirical case-study of the history and structure of the ‘Africa bar’ in Paris as a key site for the negotiation of contracts between multinational corporations and Francophone African states (Dezalay, 2021), to account for the role played by private contracts and corporate law firms in fostering international adjudication as a core space for the (re)negotiation of the unequal and uneven relationship between the African South and the world economy.

B.  Law Firms within the Symbolic Market for International Adjudication

11  Contests over international adjudication institutions continue to highlight the entanglement between the external and internal variables that contribute to their authority over time (Alter and others, 2016). For example, while the professional monopoly of the ‘international bar’ of the ICJ is seen to hamper the legitimacy of the ICJ as the ‘world’ court (Kumar and Rose, 2014), international courts are variably constrained by geopolitical pressures and shocks which they need to deflect and adapt to (Levi and others, 2016; Dezalay, 2016).

12  Extending Bourdieuian sociology to globalization and international institutions, the scholarship that emerged from the 1980s has opened important paths to account for the effects of this nexus between internal and external variables on the uneven institutionalization of the international legal scene (see: on the expansion of the field of international commercial arbitration, Dezalay and Garth 1996; the genesis of international justice institutions, Sacriste and Vauchez, 2007; the driving role of law and lawyers in the trajectory of the European Union, Vauchez, 2013; and the expansion of the international field of human rights, Madsen, 2010). These studies provide powerful cues to go beyond a perception of legalization as either normatively teleological or doomed to politicization. Rather, they unpack legal globalization and the institutionalization of the international scene as reflective of competing, and at times conflictual, dynamics of internationalization of domestic interests in which lawyers play a key role as ‘double agents’ (Dezalay and Garth, 2002) and ‘intermediary elites’ (Vauchez, 2008).

13  In their pioneering study, Dezalay and Garth (1996) recall that the expansion of international commercial arbitration from the 1980s was certainly linked to external shocks and wider transformations in the global economy. The 1970s oil crises and the move toward North-South economic relations fostered the demand by multinational corporations for flexible forms of conflict resolution, away from national courts in the Global South. They also underscore the key role played in this boom by battles among key groups of legal elites over the definition of commercial arbitration as a new area of professional practice. Applying the Bourdieuian notion of field to the international level, they framed these battles as social fields, that is as spaces where contests over the stakes and remit of commercial arbitration reflected the relative positions of agents within the field according to the portfolio of capitals they could muster and ‘capitalize’ to consolidate or contest existing professional hierarchies (Dezalay and Madsen, 2012). Key to the growth of commercial arbitration was indeed the entry into play of a new generation of contenders: multinational corporate law firms from the US, which combined considerable resources, including their proximity with businesses and legal and political elites in the Global South.

14  The alliance between US corporate lawyers with European professors, the ‘grand old men’ and architects of the principles of the lex mercatoria, contributed to legitimating this form of justice by granting a legally principled manner to treat multinational agreements with sovereign states in the Middle East and Africa as if they were private contracts. The alliance and complementarity of positions between these professors and practitioners comprised of Queen's Counsel (‘QCs’), high judges, and senior partners of multinational law firms, converged toward a small cosmopolitan network of professors and practitioners, ie the transnational arbitral community, who collectively embody the symbolic authority of this form of justice: what some commentators refer to as the ‘super arbitrators’, who are ‘not just the mafia, but a smaller, inner mafia’ (Barker, 2012).

15  This complementarity also allowed US practitioners to gain some scholarly credibility, and learned practitioners from Europe to get closer to business interests. In turn, high barriers of entry like Master of Laws (‘LLMs’) from North American law schools and positions within top-tier multinational corporate law firms enabled the co-optation of legal elites from the Global South into this marketplace, while also legitimating this form of offshore justice away from national judicial proceedings. This suggests that multinational corporate law firms have played an essential role in shaping the structures of production and reproduction of access and status within this marketplace. The institutional capacity of firms to provide the whole array of services required by state and corporate clients, by allowing for flexible legal strategies, has fostered the continuous expansion of this form of justice, including the boom of investment arbitration from the 2000s which has built on and all the while consolidated the prominence of the Wall Street model within this market (Puig, 2014).

16  These insights are particularly useful to unpack the nexus between law firms and international adjudication as they highlight the power of law as symbolic, and also as a structural phenomenon, notably because it reflects evolving imperial and hegemonic strategies along with transformations in global capitalism. Approaching international adjudication as a market for ‘symbolic’ goods (Bourdieu, 1971) channels attention towards the dynamic relationship between restricted professional markets of producers of international law and enlarged markets of users of international justice. Focusing on this dynamic relationship between producers and users of international justice is a way to connect the development of international dispute settlement mechanisms to wider contextual political and economic variables.

17  Highlighting the fragility of the symbolic authority of international justice institutions, this also underscores that their sustainability depends on the capacity to invest continuously in the reproduction of the belief in their authority. The channels of (re)production of legal knowledge and legal hierarchies play a central role in shaping this dynamic relationship with external users. In this process, the insiders of the ‘international bar’ of the ICJ or the ‘club’ of private arbitrators hold a commanding position. They control all the more the rules and practices of these mechanisms of international justice because they have contributed to their shaping. Yet, these insiders must also respond to the specific interests of the wider professional markets who act as their correspondents, referents or potential users at the national level.

C.  The (In)Visible Bar of the World Court and the Wall Street Model

18  The evolution of the ICJ provides an emblematic site to further explore this dynamic. The ICJ gained prominence as the world court only following the Nicaragua decisions of 1984–1986 and the Frontier Dispute between Burkina Faso and Mali in 1986, which brokered the ‘reconciliation of the ICJ with the Third World’ (Pellet, 2013, 277). Certainly, this symbolic position contrasts markedly with the parallel boom of international arbitration, given that fewer than 130 new contentious cases have been introduced before the ICJ since 1984 compared to the over 13,000 commercial claims administered by the International Chamber of Commerce in Paris since 1976 (International Court of Arbitration of the International Chamber of Commerce).

19  The evolution of the characteristics of the social field of inter-state adjudication also seems to highlight contradictory drivers of this symbolic authority. When coined in the 1970s by Oscar Schachter (1977, at 78), the term ‘invisible college’ referred specifically to the judges and counsels operating at the ICJ at a time of still nascent institutionalization of the international legal scene: a then small cluster of predominantly male law professors who shared a common socialization within a handful of learned societies in Europe and the US and who were also multi-positioned as jurisconsultes within their national diplomacies, and judges at the domestic level. Multi-positionality was seen to be a key condition for the authority of international justice institutions at the stage of the genesis precisely because these lawyers could at once reflect national political and economic interests and deflect them by constructing the doctrine of international law as universal (Sacriste and Vauchez, 2007).

20  Our study of the profiles, over time, of judges and counsel operating the ICJ, and its predecessor, the Permanent Court of International Justice (PCIJ), since the 1920s (Dezalay and Dezalay, 2017; Dezalay 2016) underscores the remarkable—yet paradoxical—resilience of these characteristics of the invisible college. Confirming other studies on the profiles of international judges (Terris and others, 2007), we found that international judges continue to be multi-positioned. However, we identified a stark contrast between judges from Europe and the US, and judges from the Global South. Typically judges from Europe and the US are no longer defined by a scholarly form of capital. They primarily, if not essentially, start their careers within the legal services of foreign affairs ministries. By contrast judges from the Global South—particularly former colonies—continue to display the characteristics of what Sacriste and Vauchez (2007) dubbed ‘gentlemen politicians of law’ holding the triple heading of political elites and high magistrates in their respective countries, and law professors with international credentials acquired at core European universities and institutions, foremost the Institute of International Law, as well as the United Nations International Law Commission.

21  Our study also underscores that the symbolic revival of the ICJ from the 1980s coincided with the consolidation of a monopoly of inter-state litigators around a cluster of predominantly male European, US, and British counsels. While counsels at earlier periods also originated from core European countries, they shared the characteristics of judges. From the 1980s, we identified 39 repeat players who appear as lead counsel in four cases or more, including a more restricted group of 15 counsel who have appeared in seven cases or more. Two individuals, Alain Pellet and James Crawford, have appeared in more than 40 cases before the ICJ. The defining characteristic of these repeat-players is that they are essentially scholars. This suggests that, compared to their earlier counterparts, access to this small marketplace is no longer defined by resources drawn from outside the field. Yet, like Kumar and Rose (2014) we also found a growing number of solo practitioners and lawyers from law firms, suggesting that these counsels increasingly—like in other judicial fora (Romano, 2003)—tend to appear not just qua academics, but also as attorneys or partners within law firms.

22  Looking back to the position of the ICJ, and international adjudication more generally, during the Cold War helps understand these changes in the diachrony by channelling attention to the dynamic relationship between this two-tiered structure of the ICJ as a social space, and state users of inter-state adjudication. The shunning of the ICJ by newly independent states in the Global South after controversial decisions in the 1960s meant that inter-state adjudication—much like international commercial arbitration—became a side-show in Cold war politics. The Hague Academy of International Law had attracted the support of the Ford Foundation and other US Foundations from the 1960s, with the intent of ‘mak[ing] contact with and influenc[ing] the elites of the newly-decolonizing Third World’ (Scott-Smith 2007, 509). This support waned from the 1970s onwards due to the perceived failure of this institution as a ‘beach head’ for US interests, and the Academy returned to being an ‘old world consortium’ (Scott-Smith 2007, 509).

23  The side-lining of the ICJ consolidated contradictions that were present from the stage of the genesis in the early efforts to promote international justice institutions; notably the unequal relationship between European law professors then relatively marginalized from doctrinal hierarchies and state diplomacies, and US corporate lawyers close to US business and political interests (Dezalay and Garth, 2016). The shunning of the ICJ throughout the Cold war—illustrated by an at-times empty docket—fostered the autonomization of the small marketplace of inter-state adjudication around drivers of reproduction defined by charisma, mentor-pupil relations at a cluster of European academic centres and with gentlemen politicians of law from former European colonies, and at times family legacies. Places like the Chichele Chair of Public International Law at Oxford and the Whewell Chair at Cambridge are incubators of international litigators from the United Kingdom, and the Université de droit of Paris-Ouest Nanterre around Alain Pellet in France.

24  These high barriers of entry define a collective form of legitimacy based on reputation that has fostered the symbolic authority of the ICJ from the 1980s—with a paradoxical caveat. In our study (Dezalay and Dezalay 2017) we hypothesized that this two-tiered social structure of the market for inter-state adjudication makes it more vulnerable to external shocks—including the pressure growingly exercised by multinational corporate law firms as contenders. We identified indications that the dynamics that had spurred the expansion of the field of international arbitration from the 1980s were now at play within the market of inter-state adjudication. The crisis of legitimacy of international investment arbitration following the Argentina crisis has spurred a subtle and ongoing shift in the profile of arbitrators. International lawyers associated with the symbolic authority of the ICJ as the world court are increasingly appointed as arbitrators in disputes between states and investors. Perceived as a professional competition, a ‘clash of ethos’ between ‘two epistemic communities along different lines’, namely corporate lawyers and public international legal scholars, this shift is moving ‘the center of gravity increasingly … toward the commercial arbitration bar’ (Schill 2011, 888). Our respondents (in Dezalay and Dezalay 2017) confirmed that multinational corporate law firms play the role of gatekeepers, by selecting lawyers from the public side of international adjudication befitting the perceived needs—pro-state, or pro-investors —of their clients.

25  Conversely, the US multinational corporate law firm Foley Hoag branched out into interstate adjudication through an intensive political marketing with Latin American states, which remain prominent users of this side of international justice, by leaning on the symbolic aura of Paul Reichler who was part of the team representing Nicaragua in the 1984 decision. A prominent member of the ‘club’ of private arbitrators, Jan Paulsson, also played an instrumental role in introducing the multinational corporate law firm Freshfields to ICJ adjudication, through his appointment as counsel for Bahrain in 2001. His profile epitomizes the generational shift of the market for international commercial arbitration from an informal justice dominated by law professors, the so-called ‘grand old men’ of international law, to a form of ‘offshore’ justice dominated by US litigators predominantly operating within multinational corporate law firms (Dezalay and Garth, 1996).

26  These moves indicate the diffusion of the Wall Street model of organization within the market of inter-state adjudication. The growing competition of this new generation of contenders, who approach international adjudication from the side of the ‘profession’ (Crawford and others, 2013, 9), seems to have pushed some members of the international bar of the ICJ to convert to the model of the corporate law firm in their practice as inter-state litigators. The Paris-based law firm Cabinet Frère Cholmeley provides an emblematic example. One of the first ‘cabinets conseils’ to appear repeatedly as counsel before the ICJ from the early 1990s, this boutique firm merged with the United Kingdom multinational corporate law firm Eversheds in 2001. While this has enabled the latter to branch out into inter-state adjudication, it has also allowed Rodman Bundy, who at the time was the key inter-state litigator at Cholmeley, to enter the market for international investment arbitration.

D.  Law Firms as Engines of (Re)Definition of the Unequal and Uneven Relationship between the Global North and the Global South

27  The most striking transformation illustrated by the evolution of the social space of professionals operating at the ICJ is arguably the relative devaluation of scholarly capital as a channel of (re)production of hierarchy within this marketplace. In our study (Dezalay and Dezalay 2017) we hypothesized that the debated ‘backlash’ against investment arbitration could be construed, rather, as a growth crisis indicative of a wider restructuring of the marketplace for international justice under the pull of the Wall Street model of the corporate law firm.

28  The relationship between the African South and investment arbitration provides an emblematic illustration. International investment arbitration cases involving African states and foreign investors have taken off in the past 10 years, eg making up 19.6% of cases brought before the World Bank’s International Centre for Settlement of Investment Disputes (ICSID)) in 2018. This has occurred against the backdrop of the renewed prominence taken by the African continent as a boon for critical mineral resources; fears of so-called ‘resource nationalism’ with, eg the Democratic Republic of Congo adopting in 2018 a revised mining code which substantially increases royalties due by foreign mining corporations in the country; and backlash by some African states against the lack of representativeness of African interests in investor-state dispute settlement mechanisms, including the total absence of African lawyers within the ‘club’ of investment arbitrators. Based on an empirical study on corporate lawyers involved in the negotiation of mining, infrastructure, and telecommunication contracts between foreign investors and Francophone African States (Dezalay, 2019; 2021), I identified Paris as a core location for this professional marketplace, which is dominated by French, male, corporate lawyers operating within US and United Kingdom multinational corporate law firms.

29  While imperial legacies loom large in the position of Paris as a central node for this professional marketplace (Legacies of Colonialism in International Adjudication), two other factors have played a key role in its characteristics as a social field. Vauchez and France (2021) have underscored that the neoliberal turn of the 1980s in the North fostered the expansion of an ‘interstitial’ space between the public sphere of the ‘regulatory’ state and private interests, with a prominent role taken by corporate lawyers as negotiators of private contracts. In the African South, Cooper’s metaphor of the ‘gatekeeper state’ (2002 and 2014) is particularly useful to trace the impact of the neoliberal turn, not only on the (re)production and transformation of gate-keeping politics in postcolonial African states, but also in their relations with the global economy. The idea of ‘gate-keeping’ politics channels attention towards the historical continuity between the extraction-oriented political economy of the colonial encounter in Sub-Saharan Africa and dynamics of postcolonial capture of the rent derived from controlling sites connected with global markets primarily in natural resources. Structural adjustment programmes have been shown to have contributed to promoting private contracts as a primary engine of relations between African states and foreign investors by fostering a redeployment of the state through privatisation and the indirect discharge of state functions to private actors (Hibou 1999). On the other hand, the position of Paris as a ‘beach-head’ for the expansion of US-led corporate legal globalization from the 1980s—and the diffusion of the Wall Street model into continental Europe (Dezalay, 1992) —help explain the prominence of US and UK multinational corporate law firms within this marketplace. Borrowing the know-how of French corporate lawyers has facilitated access for corporations without an imperial past in post-colonial African countries, while allowing for a symbolic displacement away from the stigmata of the ‘Françafrique’—that is, neo-colonial relations between the French métropole, and its former African colonies.

30  The creation in 2019 of the very first ‘pan-African’ corporate law firm, Asafo & Co, and the recent expansion of a corporate legal market in Francophone African states where none existed before, seem to be indicative of wider changes amenable to (re)define the relationship between the African South and the global economy, including through the emergence of new generations of African lawyers as international litigators. Still, the creator of Asafo & Co, Pascal Agboyibor, was previously a partner at the Paris office of the US multinational corporate law firm Orrick. This would seem to suggest the prominence taken by Wall Street law firms not only as an engine of legal globalization and a driver in the (re)structuration of international adjudication but also as a matrix for the reproduction of inter/national legal hierarchies.

E.  Conclusion

31  To unpack the nexus between law firms and international adjudication, this entry has suggested the relevance of adopting a sociological approach to go beyond the blind-spots fostered by the disciplinary and professional segmentation of international adjudication itself. This approach underscores that the social and professional characteristics of professionals involved in international dispute settlement mechanisms are far from anecdotal. They can help account for the professional drivers, those rules of the game and competition, that define professional marketplaces for international adjudication. They can also point to the structural drivers that sustain these mechanisms over time. The ICJ and the Africa Bar in Paris examples illustrate the growing role played by the Wall Street model of the corporate law firm in the (re)structuration of the international adjudication landscape, and as a symbolic driver of (re)production of professional hierarchies—that is, as a driver simultaneously of (re)structuration of professional marketplaces for international justice, and symbolic and practical (re)definition of the relationship between the African South and the global economy. A core characteristic of this approach however is the imperative to trace the relationship between markets of insiders of international adjudication, and wider audiences of users, as dynamic. This requires sustained, empirical research.

Sara Dezalay Law Firms and International Adjudication

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