AN INTERVIEW WITH MARKUS GEHRING

" The future of law in my view is 100% international and so the sooner you get to grips with some of the concerns and aspects, I think the better it is for your individual career as a legal professional.”

Dr. Markus Gehring is an international jurist in European and international trade law. He is also a Fellow of the Lauterpacht Centre for International Law at the University of Cambridge, a Fellow in Law of Hughes Hall, and serves as Lead Counsel for the Centre for International Sustainable Development Law.

What is your connection to Canada, Eh?

Dr. Gehring was unexpectedly introduced to international law. With a bachelor’s degree from Universität Hamburg in domestic environmental law, Dr. Gehring was looking to pursue further studies. However, there were no funded PhD placements in domestic environmental law. The only funded PhD placement was in public international law, which involved assisting an arbitrator who sat on the World Trade Organization (WTO) Dispute Settlement Body with writing a textbook. Dr. Gehring thought it would be an opportunity to marry his interests in domestic environmental law with world trade law, a legal synergy that his career is now largely founded on.

After his PhD, Dr. Gehring left his home country, Germany, to take up a visiting scholarship at McGill University, where his partner (now spouse) was studying at the time. Dr. Gehring remained in North America to complete his L.L.M. and J.S.D. at Yale Law School. Upon graduation, Dr. Gehring returned to Europe to practice law at Cleary Gottlieb’s Brussels office, which he remembers as “a wonderful experience at an American law firm with long hours.” Meanwhile, Dr. Gehring continued to write about international trade and eventually switched to an academic position at Cambridge. He has been there for the last fifteen years, save the three years he taught at the University of Ottawa. He continues his work with the WTO in arbitration and legal consultancy.

Dr. Gehring, brewing with Canadian love, states, “I loved living and working in Canada! I am a qualified member of the Ontario Bar. I do some legal advisory work – it’s in no way a second stream of income – but it keeps me connected with legal practice and pays my bar fees!”

How does one become an international litigator?

International litigators are typically employed by law firms, federal governments, corporations, or international organizations or non-profit groups. Private law firms handle most international business transactions. Corporate litigators are currently the most active international lawyers as legal work that was once done by law firms is partly moving in-house.

International organizations and non-profit agencies typically do not offer solid legal training. Instead, they hire experienced lawyers who can hit the ground running. For these reasons, being a lawyer in an international organisation feels like an “insiders club,” with lawyers from the same few law schools litigating on behalf of sovereign states and having mentors who bring them up. For Dr. Gehring, that mentor was the WTO arbitrator who sought his research assistance in writing a trade rules book.

Dr. Gehring recalls Judge James Crawford, who is now one of the 15 permanent judges of the International Court of Justice in the Hague, satirically saying, “It is easy to represent states in the ICJ, all you have to do is to have done it before.”

What trends and changes have you observed in international law since first writing about the WTO Disputes?

One trend that Dr. Gehring points to is the fact that climate change has moved up significantly on the international agenda.

“[T]he Paris Agreement has definitely changed the discourse around climate change and international law,” Dr. Gehring says. “It's backed up by some leading actors in the European Union. It sends a signal, for instance, when the French president pushes to engage in EU trade agreements only where there is full recognition of the Paris Agreement, its commitments, and its implementation. Here, you have one of the largest trading partners in the world telling its partner countries that climate change is non-negotiable – that's a very different position from 20 years ago.”

As an international environmental and trade litigator/arbitrator, what essential skills/knowledge do you think the next generation of international litigators should possess?

(1) Foreign language skills and experience. Speaking languages other than English or working in an international or comparative environment is vital for someone looking to get into this field.

(2) Experience in public administration (international or domestic). Gaining experience in any form of public administration can help, since many state-to-state or investor-state arbitrations concern public administration. States increasingly resort to international adjudication when implementing international law, which explains in part the modern proliferation of international courts (e.g. International Court of Justice, International Tribunal of the Law of the Sea, WTO Appellate Body, ICSID, etc.). Therefore, advocates should know how international law can be implemented from a public administration point of view.

(3) An understanding of how different legal systems and areas fit together. To bolster an argument that has historically not been accepted by international courts, frame that argument in the context of other areas of law that the court has been friendly towards.

For instance, in Dr. Gehring’s experience, international courts have not necessarily been welcoming towards pure environmentalist arguments. Therefore, Dr. Gehring leverages other areas of law to advance international environmental interests. This includes addressing the effects of climate change from an international human rights perspective, incorporating arguments about climate migrants and refugees and environmental racism. Essentially, international litigants must be able to assess the strengths of the synergies and formulate their specific claims to suit a dispute settlement body’s jurisdiction and specialisation.

(4) An understanding of the jurisdiction and functions of international dispute settlement bodies. International courts and tribunals are limited, resulting in jurisdictional gaps and settlement bodies with generalised mandates. In response, international litigants must be strategic in selecting a dispute settlement body to hear their case. Some specialised courts may exist, such as the WTO Dispute Settlement Body, which deals with trade disputes between WTO member nations. However, these specialised courts must also follow their international mandates. The WTO Dispute Settlement Body is meant to promote stability of the global economy and multilateral trade systems. A dispute or argument that falls outside of this context may not be heard favourably.

As an international environmental advocate, Dr. Gehring and his colleagues categorise international courts as “welcoming jurisdictions”, “neutral”, or “reluctant tribunals” when it comes to international environmental disputes. Since the abolition of the ICJ Special Chamber in 2006, no specialised international environmental court is currently in operation; IEL cases are thus frequently heard in “borrowed fora” as “disputes with environmental components”. If no specialised court exists, international litigants must “forum shop” to find an appropriate jurisdiction to resolve their disputes, and must frame their arguments to suit a settlement body’s mandate.

(5) Gain membership in international societies or associations. To stay updated on international legal developments and research, Dr. Gehring recommends the Canadian Council on International Law and the International Law Association (Canadian branch), which offer student memberships.

Looking ahead, Dr. Gehring concludes,“There are many angles to international law so don't think your future practice, even in the domestic law context, will only take place in Canada. The future of law in my view is 100% international and so the sooner you get to grips with some of the concerns and aspects, I think the better it is for your individual career as a legal professional.”