The<i>EJIL</i>Foreword; 10 Good Reads; Vital Statistics;<i>EJIL</i>’s Assistant Editors; With Gratitude – Shirley Wayne; In this Issue

This issue opens with the second entry under our new annual rubric, The EJIL Foreword. As I explained a year ago, the Foreword is designed to enable a distinguished scholar in our discipline to undertake a sweeping view of the field, a more extensive analysis, synthesis, conceptualization, or systemic theorization than is usually possible in an EJIL article. It is fitting, then, that Robert Howse’s contribution in this issue surveys the first two decades of judicial decision-making and judicialization under the auspices of the World Trade Organization. Howse presents a fresh and fascinating account of this seemingly well-known story, unearthing new insights and creating a new standard point of reference for studies of the WTO Appellate Body. An EJIL: Live interview with Professor Howse, available on our website, complements the article. By the time this issue comes out, it will be more like Easter reading recommendations than Christmas ones. But as is now our custom, I list 10 of the books I read during the last year which stood out and which I do not hesitate to recommend to our readers. The law books – six in all – are actually all relatively recent. Sebald’s essay and the novels span a century, a pick of some of the best I happened to read during the year. The 10 books are listed in no particular order. Enjoy! A mature and very readable book (not always the case with German scholarship) by a young scholar, constituting a nice balance between synthesis and analysis of ‘German Constitutionalism’, with a focus on the German Constitutional Court. Foreshadowed by her 2014 article in I•CON the book is laudably ambitious, providing a history and historiography of court, state, society and the constitutional order. Some of the terrain was covered some years ago by Ulrich Haltern’s striking doctoral dissertation, but the treatment is fresh and her fertile concept of ‘value formalism’ – a kind of Hegelian synthesis of, say, Mautner’s formalism to values analysis of the Israeli Supreme Court – captures a mood noticeable in other jurisdictions. Hailbronner swims confidently in constitutional (and political) theory, and is both contextual and comparative. The book is Hegelian in another sense – formally beautiful in the construct it sets up and, yes, idealistic in its values. It is German ‘legal science’ in the best sense of the word, which also helps explain the worldwide impact that the German Constitutional Court and its jurisprudence have had, an impact greater than any other such court in continental Europe. That might be its weakness too: the construct a bit too tidy for my taste, the values a bit too much of a legal Heile Welt – but such does not detract from a formidable achievement. This is a very different book – a combination in the best sense of a law book and a book about the law – learned and erudite in its descriptive parts, insightful in its analytical part. It is important because so many out there will simply be unaware of Italian constitutionalism, its history, institutions and not least its jurisprudence. I might say, tongue in cheek, that if you read it coupled with Sabino Cassese’s Diary which I recommend below, you will not need to read much more. It doesn’t have the novelistic momentum of The Brethren, but in its authenticity, refined and acute insight into both cases and the functioning of the Court, and in its unflinching exposure of the inner workings of the Court this book has, to my knowledge, no parallel. Cassese served as a judge on the Constitutional Court of Italy for the statutory nine years from 2005 through 2014. He kept a diary which has now been published in book form. It keeps the diary format, measured in tone, factual and yet it keeps your interest. At times you wonder what his brethren would think of all of this; for instance, his biting comment, including a letter sent to his colleagues, on the peculiar praxis of presidential elections within the Court. The diary is interspersed with pithy observations not only on the immediate agenda before him but on just about every issue one discusses as regards this function and every question that one would want to ask a judge of a Supreme or Constitutional court. I would be surprised if it were not translated into other languages, though it would then need some additional material to contextualize the cases and the politics for non-Italians. Perhaps the word ‘the’ in the title promises a tad too much to the readers of this truly valuable book. More accurate would be ‘Major Themes in International Law – A Sociological Approach’. With this caveat the book delivers – whether you are interested in trade agreements, compliance pull, investment, or any of the other themes picked up (a particularly interesting chapter on collective memory) you will learn, become wiser in relation to each. What more can one ask? It used to be that the only connection between the WTO and investment law was that often times the same persons taught and occasionally practised both. In fact it was common, and it is still the case, to point out the huge differences between the two systems, in telos, ethos, machinery, dispute settlement, and much more. Chapter 11 of the NAFTA underscored this approach. It was drafted, for the most part, separately and feels like a stepbrother – more advanced in offering relief to individual (rich) plaintiffs and retarded, scandalously so in some ways, in its disregard for the kind of countervailing values in the trade part as represented by Article XX of the GATT. The NAFTA seemed to indicate that either you had a trade dispute or you had an investment dispute. It is surprising how long it took for practitioners to see the temptation, for precisely the reasons mentioned above, of framing trade disputes as investment disputes. Suddenly the boundaries became blurred and now we have disputes arising from the same set of facts winding their way through the parallel systems. Kurtz is not the first to explore the connections, Ari Afilalo, Tomer Broude and many others are generously acknowledged in the text and the rich bibliography. But this to my knowledge is the first systematic, comprehensive treatment – remarkable for the richness of its approach, covering both black letter law and doctrine as well as the conceptual and historical context of the converging, overlapping and still diverging systems – which makes for a book valuable even to those outside the immediate fields treated. Another book on the European Court of Justice? Another exploration of the interaction between law and politics, the Court and the political Institutions in the European Union? Yes, and a remarkable book at that. The great strength of this book is its empirical dimension, its subject matter specificity, and its institutional specificity in examining the relationship between the jurisprudence of the Court and the political branches of the Union. Make no mistake, the research is firmly situated in a conceptual and theoretical foundation, but the main achievement is in the differentiated results of the empirical exploration, which lead to a final nuanced and sophisticated new understanding of the relationship. In describing Sebald’s novels and poetry the words ‘mesmerizing’ and ‘sublime’ are often used, and rightly so. They are also quite unique in form and structure in a way that few other authors are. Vertigo, Austerlitz, The Rings of Saturn, The Emigrants, to mention the most famous, are at once so personal and yet so universal and timeless. Their mood is melancholic but in the way late autumn is. The kind of book you read slowly, hoping it will never end. You can go back to them again and again. For many years I resisted reading his book-length essay, On the Natural History of Destruction, which describes the terrible destruction of German cities by Allied bombing. It does more, it reflects on the silence, especially among Germans, regarding this dreadful toll. I did not want the image of an author I practically revere tarred in even the slightest way by any hint of revisionism. Of course, that reluctance on my part was a manifestation of the very phenomenon – pathology – which Sebald set out to explore. And of course I should not have hesitated at all for the book is compelling and Sebald’s transcendent humanity and integrity, as well as his most refined plumbing of the human condition, are unequalled here too. The novel tells the story of Andrés Hurtado, taking us through his years of studying medicine in Madrid and his subsequent practice. It is Baroja’s most famous book and is still in print. It is contemplative, philosophical (in good measure) and the character study, the study of family, and the study of Spanish society at the turn of the last century are woven into a story that draws you in. The reason I include it here is because large parts of it are situated in the university and the profession which the protagonist loathes. What is striking is how little has changed, especially in the world of European continental universities. 1900? So much of it could be 2000, by which I mean in the sociality of these institutions. Still, some things have changed. The occasional, matter of fact, unself-conscious anti-Semitic comment is a tell-tale sign of the time it was published. You do not have to be a particular fan of Patti Smith as a singer (I am not) to derive enormous satisfaction from this autobiographical book. But what you do have to do is to read first her wonderful 2010 Just Kids which describes her down and out early years with Robert Mapplethorpe in the Village, when truly there were days when tomorrow’s lunch was not certain. M Train brings us up to date: rich and famous, with houses here and there, globe-trotting and jet setting, and all that. And yet the charm and sincerity are still all there, a beautiful effortless style, and above all a sense of loneliness and lingering sadness, a mourning that apparently has never deserted her following the early death of her husband, Sonic Smith. If you pick up Just Kids you will not put it down. And having done that you will feel both compelled and rewarded to read M Train. Unamuno (1864–1936) was a polymath – philosopher, essayist, classical scholar. Appointed at the age of 36 as Rector of the University of Salamanca, he was a major intellectual figure in his time. Google him. But you can do better: read his short(ish) novella – San Manuel Bueno, mártir. Superficially the story of a clergyman in a small Spanish village, this is in fact a compelling narrative of the simultaneous growth and demise of faith – delicate and sympathetic to his protagonists, extraordinary in its human sensitivity and sensibility and extremely moving without being sentimental or lachrymose – though it is hard to imagine anyone who would not have tears in their eyes when reaching the final pages. As EJIL readers will know, we publish statistics each year on the submissions received, accepted and published in the Journal during the previous 12 months. We call them ‘Vital Statistics’ because we believe that it is vitally important to observe and understand trends in the submission and publication of articles in our Journal: Who is writing, where are manuscripts coming from, which languages do our authors speak, can we detect any changes in submission trends? We present our statistics with no frills, letting them speak for themselves. There are no special requirements for authors wishing to submit to EJIL. We encourage the new, the innovative, the young and the well-established to submit to EJIL, but there is no editorial affirmative action in selecting manuscripts for publication. Our double-blind review process makes certain of that. Of course, EJIL does commission some articles, and readers will find statistics on the incidence of unsolicited and commissioned articles here as well. We have seen a very gradual rise in the percentage of manuscripts submitted and published by women authors in recent years, with the figures now showing that 37 per cent of submissions and published articles for 2015 were by women authors. The number dropped slightly to 31 per cent for accepted articles. We divide the world into four regions for our statistical purposes: the European Union; the Council of Europe countries outside the EU; the US and Canada; and the rest of the world. This may seem a little misleading as it indicates the place of submission – normally the institution at which authors work or study, rather than their actual nationality – but overall we believe it conveys a fairly reliable picture of our authors and EJIL’s presence in the world. Of the total number of manuscripts submitted in 2015, 44 per cent came from the EU, 8 per cent from CoE countries, 19 per cent from the US and Canada and 29 per cent from the rest of the world; thus, very similar figures to those of the previous year for the first two groups, whilst US and Canadian submissions showed a decline and rest of the world submissions increased. These percentages are closely reflected in the figures for published articles. Only 8 per cent of this year’s authors hail from the US and Canada, though the percentage of accepted articles by North Americans was much higher at 31 per cent. Thus, next year’s statistics will speak differently in this respect. We encourage submissions from non-native English authors, not least by providing an excellent copy-editing service for all articles accepted for publication. This year 43 per cent of submissions came from English-speaking countries and 57 per cent were from non-English-speaking countries. Whilst the percentage of authors of accepted articles from non-English-speaking countries dropped this year to 34 per cent, the trend remained positive for non-English-speaking country authors for published articles: 47 per cent from English-speaking countries and 53 per cent from non-English-speaking countries. In EJIL’s earlier years we needed to pay close attention to the balance between unsolicited submissions and commissioned articles so that the inclusion of symposia and other commissioned articles left sufficient space in the Journal’s pages for manuscripts submitted through the normal channels. The ever-increasing number of outstanding unsolicited manuscripts we receive has perhaps inverted this situation, requiring that we allocate sufficient space for our explorations of original and cutting-edge issues in international law through commissioned articles and symposia. This year we published 26 unsolicited articles for a total of 600 pages, and 13 commissioned pieces numbering 214 pages. Starting in 2016 we have increased the number of pages per volume to ensure that we are able to continue publishing the increasing number of excellent article submissions we receive without abandoning symposia and commissioned articles. Producing a scholarly journal may be a labour of love, but a labour it is. An enormous amount of work is required to manage each and all of the areas of our journal – from the submissions to the review process, to communications with the authors and publisher, and to the actual production of each issue. Happily, a group of Assistant Editors is the most recent addition to our masthead. We welcome Eve Bain, Birte Böök, Lucila de Almeida, Elias Deutscher, Anna Isaeva, Sergii Masol and Jed Odermatt and thank them for their contribution to EJIL. We also thank Tleuzhan Zhunussova who served as Assistant Editor over the past year. A number of people work behind the scenes to make EJIL the outstanding journal that it is. One of these people is Shirley Wayne, who has worked as the Production Editor for EJIL at Oxford University Press since 2005. Now, as Shirley prepares to begin a new chapter of her life in retirement, we at EJIL would like to offer her our sincere thanks. Not only has Shirley served our journal with dedication, patience and good humour – all necessary traits in this business – she has also gone the extra mile with every single issue, checking, rechecking and ensuring that EJIL meets the highest standards that a journal editor may expect. Let us extend our warmest wishes to Shirley for a happy and fulfilling future. The Foreword by Robert Howse is followed by four articles. In the first, Charles Leben presents a rich and original historical analysis of the influence of Hebrew sources on the development of international law in early modern Europe. In the second, Andreas Kulick explores the inconsistent use of estoppel in international investment arbitration and the lack of reasoning used to justify the different approaches taken, leading him to conclude that the ‘cart may have come before the horse’ in many of the decisions surveyed. Yoshiko Naiki examines the important but understudied area of international regulatory arrangements around biofuels, in the process making an important contribution towards understanding the functioning of a fragmented governance system with multiple coexisting regimes. Finally, Timothy Meyer adopts a rational choice approach to explain the choice of soft law over binding law forms of agreement, with particular reference to the context of uncertainty and shifting power in which such decisions are In this issue a by The of At the Court on and in The last article in this issue under our rubric, of International in yet another of the in international legal examines at the International Court. We the issue on a yet with The and offer us International and by way of a The place of international law and its sources not just in books and university It can actually A dispute And even the of

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