In Conversation with Dr Penelope Ridings

Dr Ridings, thank you very much for accepting this kind invitation, which will constitute part of the Völkerrechtsblog symposium. The Person behind the Practitioner.

[PR] Thank you for inviting me to contribute to this excellent series and to highlight how I see myself as both a practitioner and more recently as an academic.

Before proceeding with today’s interview, it would be to our audience’s advantage to offer a summary of your extensive career as an international lawyer. Dr Penelope Ridings has been an international lawyer for over three decades, she has acted as a negotiator, adviser and advocate. On numerous occasions, Dr Ridings has acted as an arbitrator and chair in ICSID ad hoc Annulment Committees and in WTO panels and under the Multi-Party Interim Appeal Arbitration Arrangement. More recently she chaired the first post-Brexit arbitral panel between the European Union and the United Kingdom in the UK-Sandeel case.  Before these commitments, Dr Ridings acted on behalf of New Zealand in several international disputes. She has advised inter-governmental organizations on various international law issues. Since 2023 she has served as a member of the International Law Commission.

I would like to start by going back to the moment you joined New Zealand as a legal advisor. Since then you have acted in a wide set of cases before international institutions, mainly on behalf of a most active State in international dispute settlement. Likewise, you have also played a key role in shaping New Zealand’s international trade architecture and its part in the protection of the ocean and fisheries. Would you like to share with us the importance of this phase in your career, and how has it moulded your views on the pacific settlement of disputes?

[PR] My early career certainly shaped the kind of international lawyer I have become. But more broadly my identity as a New Zealander has helped to form not only my personal view of law and community but also my work as an international lawyer. As you will know, New Zealand is a small, geographically isolated country surrounded by the ocean and reliant on trade for its economic prosperity. Early in my career, I was drawn to the need to protect oceans and fisheries and to strengthen the implementation of trade rules. These are interests I have pursued ever since.

It may seem unusual that I have specialised in quite distinct fields of law, yet I believe they share similar traits. Each depends on States cooperating and working together to achieve shared goals, whether protecting the environment or promoting prosperity through trade. Both are underpinned by a network of international legal rules that guide cooperation. Respect for these rules is especially important for small countries such as New Zealand.

My early years working on these issues reinforced my view that international dispute settlement offers a way for countries like mine to level the playing field, so that even smaller States can secure fair outcomes while at the same time maintaining stable international relationships. That understanding, stemming from my formative years working for New Zealand, has shaped my continuing belief in the value of the pacific settlement of disputes.

You have likewise extensively acted as arbitrator and counsel in and before WTO Panels and the WTO Appellate Body. In practical terms, what would you say sets aside WTO litigation from other types of dispute settlement? Our readers will recall the -all too rare for international law- existence of an appellate instance, to what extent should future international dispute settlement endorse this model?

[PR] The WTO dispute settlement system is quite egalitarian in its design. It is open to all WTO members, regardless of size or power, and includes a robust compliance mechanism designed to ensure that Members implement rulings and recommendations. This sets it apart from most other international dispute settlement systems. So too does the system of appellate review. This was perceived as a way to bring consistency and predictability to WTO rulings. At its zenith, the WTO Appellate Body was described as “the jewel in the crown.” Over time, however, cracks began to appear in its functioning, and it is now effectively moribund. Some WTO members, participants in the Multi-Party Interim Appeal Arbitration Arrangement (MPIA), have sought to retain a two-tier system in disputes between them. Having been a member of the pool of MPIA arbitrators, I believe that the MPIA participants have sought to address some of the perceived shortcomings of the Appellate Body. It shows that a two-tier dispute settlement structure within the WTO can still function effectively.

I find it interesting that there is ongoing discussion on the possible introduction of an appellate review mechanism in investment arbitration. I am sure that those negotiating the design of an appellate mechanism will seek to avoid the pitfalls that have befallen the Appellate Body.

In my view appellate jurisdiction may have a place in circumstances where there is a need for consistency in the application of legal rules. Having said that, there is already a notable degree of consistency across decisions of international courts and tribunals. This is illustrated by recent advisory opinions on climate change from the International Tribunal for the Law of the Sea (ITLOS) and the International Court of Justice (ICJ). The extent to which courts and tribunals consider each other’s legal reasoning should not be underestimated. It serves a function similar to appellate review by fostering coherence and predictability in the international legal system and contributes to stability in the international legal order.

From your experience, after extensively acting as a lead counsel in WTO proceedings you have also served in several ICSID proceedings, mostly as a member of Ad Hoc Annulment Committees, how would you compare investment and trade disputes when it comes to practice? What advice would you provide for lawyers interested in these fields?

[PR] Comparing the practice of investment and trade dispute settlement is a bit like comparing apples and oranges. They are both dispute settlement mechanisms but differ significantly. Trade disputes are usually State-to-State disputes pursued under the WTO Agreement or free-trade agreements (FTAs). The WTO has an established Secretariat which provides legal and technical assistance to panels, and there is a degree of consistency in panel rulings. The process is relatively transparent since third parties may join the dispute, and in some cases, hearings are open to the public. In my experience, trade disputes under FTAs have to respect tight timeframes for both parties’ submissions and the issuance of the award. In contrast, investment disputes usually arise between an investor and a State under bilateral investment treaties or the investment chapters of FTAs. Independent arbitrators decide investment disputes according to how they interpret these various agreements. As a result, we may find differences in the approaches taken by arbitrators. I would also say that in general confidentiality is a hallmark of these proceedings.

These differences influence the practice of investment and trade dispute settlement.  Investment disputes are highly fact intensive and can take many years to resolve. In recent decades, we have witnessed a dramatic increase in the number of investor–State disputes as well as in their size and complexity. This creates opportunities for legal practitioners in this area. In contrast, WTO and FTA trade disputes are fewer in number and in my experience are often handled by government lawyers or large law firms with an established practice in trade law. While the opportunities may be fewer, I find trade disputes to be particularly interesting due to their underlying political context.

In response to your question, my advice to aspiring practitioners with an interest in the practice of trade and investment dispute resolution is to follow your passion and to seize every opportunity open to you. Networking and building relationships are good ways to search out those opportunities. In all areas, including trade and investment, sometimes it is not only what you know but who you know. In saying this I do not wish to discount the importance of having good analytical skills and subject matter expertise. Indeed, my advice for any aspiring practitioner in this area is to have a strong grounding in international law. Specialist expertise can always be learnt provided there is a solid foundation on which it can be built.

On top of all these, you have also acted before the International Court of Justice, in particular in the Whaling in the Antarctic case between Australia and Japan. On that occasion you acted on behalf of New Zealand, offering an intervention under Article 63(2) of the Court’s Statute. This was the first time that Article 63(2) was successfully invoked, and that allowed New Zealand to intervene in the case without becoming a party, but supporting the understanding and interpretation of the Whaling Convention. The use of this Article has played a key role in recent litigation before the Court. Could you please share with us how significant the use of this procedural provision was and how important it is nowadays for litigation before the Court?

[PR] In 2011 when New Zealand entertained the prospect of intervening in the dispute concerning the interpretation of the 1946 Whaling Convention, Article 63 was not the intervention procedure to which international lawyers instinctively turned. At the time, it was uncertain whether the “right” set forth in Article 63 was truly a legal “right” and what procedural requirements governed its use. We were also unclear as to how New Zealand should frame its submissions to fit the nature of an Article 63 intervention under the ICJ Statute. We therefore crafted our Declaration of Intervention with great care. We made it explicit that New Zealand was not a party to the dispute, would address only the interpretation of the Convention, and would accept the Court’s interpretation as binding. In taking these steps we were mindful of not compromising the “equality of the parties” before the Court. We were successful in that the Court admitted our Declaration, allocated us time for oral arguments, and engaged seriously with our submissions.

For New Zealand, this was a significant opportunity to present directly to the ICJ our legal interpretation of the Whaling Convention. It enabled us to explain in depth the legal interpretation of the Convention which we considered was applicable, without needing to enter into the debate on science. From these beginnings, Article 63 has become a recognised avenue for States party to a convention to submit their views on its interpretation.

It is notable that since then the procedure has been used with increasing frequency: thirty-two States intervened under Article 63 in Ukraine v Russia (under the 1948 Genocide Convention); eleven States did so in The Gambia v. Myanmar, and numerous States in South Africa v. Israel, also under the 1948 Genocide Convention. Interestingly, the unprecedented recourse to the Article 63 procedure has led the Court to adjust some of its procedures to accommodate this trend.

Today, Article 63 is an established procedural mechanism in litigation before the Court. It is particularly relevant for conventions which contain obligations erga omnes, and in which all States have an interest in the interpretation. Its importance also lies in the opportunity it provides for States to present their legal views and appear before the Court. I consider that this enhances the engagement of States with the Court and contributes to its legitimacy.

Coming back to the present, you are currently serving as a Member of the International Law Commission. Among other topics your work has focused on one of the most interesting and ambiguous terms one finds in international law: due diligence.To provide but one example of the ambiguity, in human rights law ‘due diligence’ is synonymous with the obligation to prevent and protect rights. Likewise, since 2011, and largely thanks to the United Nations Guiding Principles on Business and Human Rights, it has become synonymous with (corporate) human rights due diligence. People, not seldom confuse both concepts very different in nature and content. Not to mention that it has also been given meaning as a category of obligations and a separate obligation in itself in other branches of international law.In light of this, could you share with us some of your findings about the nature of due diligence and the complexities around this concept in international law?

[PR ] I was very pleased to have my topic ‘Due Diligence in International Law’ placed on the active programme of work of the International Law Commission, and to be appointed Special Rapporteur. My motivation to develop this topic stems from exactly the very uncertainties and lack of clarity that you have identified.

This topic is particularly timely. The recent advisory opinions on climate change of the ICJ, ITLOS, and the Inter-American Court of Human Rights have underscored the role that due diligence plays as a standard of conduct with which States must comply in order to meet their obligations of conduct to prevent harm to the environment and to prevent violations of human rights. While these and other judicial decisions have helped to clarify some aspects of due diligence, I believe there are still aspects that warrant further elucidation.

For example, I have found that in some areas of international law, due diligence is associated with a broader duty applied to a State’s actions within its territory or activities subject to its jurisdiction or control, which harm the rights and interests of other States. In international environmental law, it is closely linked to the principle of prevention and the obligation not to cause significant transboundary harm. And, as you rightly suggest, in the field of business and human rights, due diligence is connected to the actions companies should take to avoid human rights abuses.

These varied applications are all referred to as ‘due diligence’ and are sometimes treated as though they were identical. I see a clear need for more precision as to what is meant by due diligence, to identify whether there are distinct categories of due diligence, and to set out the common elements that the duty of due diligence may entail.

I should emphasise that this work is still in its early stages. Given its complexity, it will take some time to complete. The International Law Commission follows an iterative process for its topics, regularly seeking the input and views of States to ensure its conclusions reflect State practice and opinio juris. Over the coming years, I will follow this process and engage with States, organisations and academics with the aim of bringing greater clarity to ‘due diligence in international law’.

I am sure your work in Due Diligence will bring much light and clarity to the topic, and I am eager to read your next ILC Report! Dr. Ridings, thank you very much for your time and generous disposition in this interview. It has been a pleasure to talk to you and I am sure this will make a great addition to our series.

Thank you very much, Antonio, for giving me this opportunity to share some personal reflections with the readers of the Völkerrechtsblog.