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A Forgotten Chapter in the History of International Commercial Arbitration: The Slave Trade's Dispute Settlement System

  • ANNE-CHARLOTTE MARTINEAU
Abstract

This article is part of the ongoing efforts to write a critical history of international arbitration in commercial and investment matters. It examines the ways in which the Spanish crown and its concessionaries set up a mechanism to settle legal disputes pertaining to the transatlantic slave trade. The transformation of asientos de negros from limited royal contracts to large-scale monopolies awarded to foreign chartered companies during the sixteenth, seventeenth and early eighteenth centuries was accompanied by the creation of an international commercial arbitration system. Why was this system set up, how did it work, and what was its faith? The overall aim of the article is to invite international lawyers to rethink the history of international arbitration and pay closer attention to the ‘private’ dimensions of formal and informal imperialism. It also attempts to bridge the historical investigation and contemporary commentary. In the conclusion, I argue that this study allows us, in a mirroring effect, to question the idea that today's dispute settlement mechanism was conceived as a means to ‘depoliticize’ international investment law. What the introduction of arbitration achieves is to place some fundamental questions out of sight. Today, as in the past, arbitrators work from within the system; their work rests on a series of unspoken – and yet highly political – premises about the organization of economic life and the distribution of values.

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1 P. Juillard, ‘The Law on International Investment. Can the Imbalance Be Redressed?’, (2008–2009) Yearbook on International Investment Law & Policy 273, at 273.

2 See S. Schill, ‘Towards a Constitutional Law Framework for Investment Law Reform’, EJIL: Talk!, 5 January 2015, available at www.ejiltalk.org/towards-a-constitutional-law-framework-for-investment-law-reform/. For a concise summary of contemporary debates see also Baetens, F., ‘The Oxford Handbook of International Investment Law’, (2009) 20 (3) EJIL 939.

3 T. Cole, The Structure of Investment Arbitration (2013), xiii.

4 A. Newcombe and L. Paradell, Law and Practice of Investment Treaties. Standards of Treatment (2009), 2.

5 R. Dolzer and C. Schreuer, Principles of International Investment Law (2012), 6. On the continuity thesis see A. De Nanteuil, Droit international de l'investissement (2014), 28.

6 M. Sornarajah had already paved the way in The International Law on Foreign Investment (1994). See also A. Anghie, Imperialism, Sovereignty and the Making of International Law (2004); Gathii, J., ‘War's Legacy in International Investment Law’, (2009) 11 International Community Law Review 252.

7 These legal tools included friendship, commerce, and navigation treaties, unequal treaties, concessions, and the de jure subjugation of non-Western peoples and lands to Europeans. K. Miles, The Origins of International Investment Law: Empire, Environment, and the Safeguarding of Capital (2013).

8 As noted by several reviewers, including Schneiderman, D., ‘Kate Miles. The Origins of International Investment Law: Empire, Environment, and the Safeguarding of Capital’, (2014) 25 EJIL 942; Fakhri, M., ‘The Origins of International Investment Law: Empire, Environment, and the Safeguarding of Capital. By KATE MILES’, (2015) 18 Journal of International Economic Law 697; and Fahner, J., ‘The Contested History of International Investment Law: From a Problematic Past to Current Controversies’, (2015) 17 International Community Law Review 373.

9 Koskenniemi, M., ‘Expanding Histories of International Law’, (2016) 56 American Journal of Legal History 104.

10 The literature is considerable. See, among many others, R. Blackburn, The Making of New World Slavery. From the Baroque to the Modern, 1492-1800 (2010); H. Klein, The Atlantic Slave Trade (1999); Solow, B. (ed.), Slavery and the Rise of the Atlantic System (1991).

11 For a recent account see Weindl, A., ‘The Asiento de Negros and International Law’, (2008) 10 Journal of the History of International Law 229.

12 The slave trade has been the topic of an impressive number of historical and legal studies. While I have learned a great deal from the historical studies, I find that law – including the workings of the dispute settlement system – tends to stay in the background. Unsurprisingly, legal scholars have looked much more closely at the legal rules, processes, and institutions that were put in place. Nonetheless, they too often portray the evolution of the slave trade's legal regime as a progressive narrative that moved from the national legal sphere to the international legal sphere, and from a mercantile colonial system to free trade. See G. Scelle, Histoire politique de la traite négrière aux Indes de Castille. Contrats et traités d'Assiento (1906).

13 ‘[H]istorical work is about the present’. Kemmerer, A., ‘“We do not need to always look at Westphalia . . .” A Conversation with Martti Koskenniemi and Anne Orford’, (2015) 17 Journal of the History of International Law 1, at 3.

14 See Public consultation on investor-state arbitration in TTIP – Comment, signed by renowned legal scholars, July 2014, available at www.kent.ac.uk/law/downloads/ttip_isds_public_consultation_final.pdf. See also, from different angles, Puig, S., ‘Social Capital in the Arbitration Market’, (2014) 25 EJIL 387; Van Harten, G., ‘TWAIL and the Dabhol Arbitration’, (2011) 3 Trade, Law and Development 131; Viñuales, J., ‘Foreign Investment and the Environment in International Law: An Ambiguous Relationship’, (2009) 80 BYBIL 244.

15 Giorgetti, C., ‘Who Decides Who Decides in International Investment Arbitration?’, (2014) 35 University of Pennsylvania Journal of International Law 431, at 431.

16 AGI Indiference 746 (1599), cited in T. Seijas, Asian Slaves in Colonial Mexico: From Chinos to Indians (2014), 100. Black slaves were already present in the West Indies. They had arrived with the first conquest expeditions as servants and auxiliaries. In the early decades of colonial rule, Spaniards were also granted licences to take small numbers of slaves from the Iberian Peninsula for their own personal service.

17 Bartolomé de Las Casas (1484–1566) is among the first to have suggested and supported the substitution of Africans for Indian slavery in the Americas. Toward the end of his life, however, he grew to realize, and to regret, ‘his error’. Saco, J.A., Historia de la esclavitud de la esclavitud de la raza africana en el nuevo mundo y en especial en los países americo-hispanos (1938), vol. II, at 80.

18 Scelle, G., ‘The Slave-Trade in the Spanish Colonies of America: The Assiento’, (1910) 4 AJIL 612, at 616.

19 Many licences were initially granted for free to reward faithful servants or to pay debts (the issue of juros). The most famous example of this practice is Charles V's grant of 4,000 licences in 1518 to a Flemish favourite, who quickly sold them to a firm of Genoese merchants for 25,000 ducats. For a thorough study of sixteenth-century licences, see Fuentes, L. García, ‘Licencias para la introducción de esclavos en Indias y envíos desde Sevilla en el siglo XVI’, (1982) 19 Jahrbuch für Geschichte von Staat, Wirtschaft und Gesellschaft Lateinamerikas 1.

20 Weindl, supra note 11, at 232.

21 E. Vila Vilar, Hispanoamérica y el comercio de esclavos (2014), 17.

22 L. Newson and S. Minchin, From Capture to Sale: The Portuguese Slave Trade to Spanish South America in the Early Seventeenth Century (2007), 18.

23 Scelle, supra note 12, vol. 1, at 286–7.

24 The Portuguese had established factories along the West coast of Africa starting in the fifteenth century. The Spaniards had given up their claim over Africa through the Treaty of Tordesillas (1494).

25 In Africa, the Portuguese crown farmed out the control of the slave trade and the collection of taxes to private individuals (rendeiros). The latter would conclude agreements with slave traders wishing to export Africans from their regions and collect the duties involved.

26 Vilar, E. Vila, ‘Los asientos portugueses y el contrabando de negros’, (1973) 30 Anuario de Estudios Americanos 557, at 559.

27 Most Portuguese contractors who obtained the asiento between 1580 and 1640 were converso merchants, who had been forced by the king of Portugal to convert from Judaism to Catholicism in 1497. Many of them had come to live in Spain and in Spanish America, where they enjoyed relative freedom. Gradually, however, they would come to live in fear of the Inquisition. See I. Jonathan, Diasporas within the Diaspora. Jews, Crypto-Jews and the World Maritime Empires (1510-1740) (2002). For the trajectory of one converso family – the Gramaxo family – deeply involved in the slave trade, see Roitman, J. Vance, ‘Sephardic Journeys. Travel, Place and Conceptions of Identity’, (2009) 11 (1–2) Jewish Culture and History 208.

28 Scelle supra note 12, vol. 1, at 347.

29 This was not a monopoly: even though Reynel was entitled to deliver by himself the number of slaves whose trade he would not sell through licences, he could not refuse the disposal of licences, for which a ceiling amount had been stipulated to the merchants of Seville and Lisbon. A number of licences were also set aside for allocation at the king's discretion. The asiento specified the places of importation and the points of delivery, as well as the navigation system. Slaves could be transported in ships unconnected to the Spanish Treasure fleet system, but only with Portuguese or Castilian crews, and with the obligation ‘not to trade in the Indies’.

30 Scelle, supra note 12, vol. 1, at 358–9.

31 Vila Vilar, supra note 21, at 75.

32 See González, I. Gómez, ‘Más allá de la colegialidad. Una aproximación al juez de comisión en la España del antiguo régimen’, (2011) 37 Chronica Nova 21; Mousnier, R., ‘La fonction publique en France du début du seizième siècle à la fin du dix-huitième siècle’, (1979) 261 (2) Revue historique 321.

33 Delon, M. (ed.), Encyclopaedia of the Enlightenment (2002), 203.

34 One might argue that it facilitated the work of future asentistas when they sought to introduce private judges who would take their concerns into consideration. This is Scelle's argument, supra note 12, vol. 1, at 360.

35 Vila Vilar, supra note 21, at 76.

36 To fund his operation, Reynel needed sponsors. He contracted his most important loans to Cosme Ruiz, a Castilian merchant who directed an important commercial network in the region. H. Lapeyre, ‘Le trafic négrier avec l'Amérique espagnole’, in Homenaje a Jaime Vicens Vives (1967).

37 For their reliance upon an important transnational network of merchants and bankers, see Mendes, A. De Almeida, ‘Les réseaux de la traite ibérique dans l'Atlantique Nord’, (2008) 4 Annales 739.

38 Vila Vilar, supra note 21, at 81. See also Newson and Minchin, supra note 22, at 21.

39 Scelle, supra note 12, vol. 1, at 383.

40 Soon after the annulment of Reynel's contract, a new asiento was let to Juan Rodríguez Coutinho, governor of Angola and holder of the royal tax-farming contract there. The terms of the agreement were much stricter, and Coutinho ran almost immediately into legal and financial difficulties; many lawsuits were brought against him, for instance, by holders of previously issued licences and by Reynel himself. Upon his unexpected death in 1603, his brother and business partner took over. At that point, the difficulties in assuring the timely transfer of credit, silver, and rents were such that the new asentista was forced into bankruptcy in 1607. To make the situation worse, the public bid that the House of Trade launched in 1609 for the slave trade administration received only two applications. The one who won the contract – a certain Augustín Cuello – rapidly turned out to be a mere front man for a Portuguese merchant who was spending time in prison for debt.

41 See Bethencourt, F., ‘The Iberian Atlantic: Ties, Networks, and Boundaries’, in Braun, H. and Vollendorf, L. (eds.), Theorising the Ibero-American Atlantic (2013), 28; H. Thomas, The Slave Trade. The Story of the Atlantic Slave Trade, 1440-1870 (1997), 163.

42 In 1611, Sevillian merchants sent a brief to the Council of the Indies asking to end the possibility of Portuguese ships sailing on their own, i.e., outside of the Spanish Treasure fleet, and by the most direct route, i.e., directly from Lisbon, Cape Verde Islands or Angola to the Indies. They argued that to allow slave ships to leave directly from the port of Lisbon or from Portuguese possessions in Africa enabled captains to escape paying taxes, given that officials in Lisbon and in Africa were less punctilious than those in Seville. For an extensive résumé of the debate, see Scelle, supra note 12, vol. 1, at 412–19.

43 Vila Vilar, supra note 21, at 572.

44 The first meeting involved the President of the Council of the Indies, the President of the Council of Finance, and two members of the Council of Portugal. Later on, the President of the House of Trade was asked to participate and to seek the opinion of the Consulado de Sevilla. Ibid., at 595–9.

45 Antonio Fernández Delvás agreed to pay 150,000 ducats per year to the crown for a period of eight years, during which he might import up to 5,000 slaves, but never less than 2,500 annually. Crewmembers could be Portuguese, but on the condition that they were ‘Old Christians’. Ships could travel from Angola and Cape Verde without passing through Seville, but their records had to be given back to the House of Trade in Seville or in Cadiz. Ships were authorized to disembark slaves in either Cartagena or Vera Cruz, but nowhere else.

46 Vila Vilar, supra note 21, at 60.

47 Thomas, supra note 41, at 165.

48 Scelle, supra note 12, vol. 1, at 438, 439, 441.

49 Vila Vilar claims that no one respected the system (and this is why the trade worked). Vila Vilar, supra note 21, at 60. Scelle talks of ‘good harmony’ between the actors involved. Scelle, supra note 12, vol. 1, at 453.

50 One telling example is found in Scelle, ibid., at 457–60.

51 The entry of Spain into the Thirty Years’ War meant that the Caribbean became a ‘war zone’: Portuguese slave merchants lost 20 ships, mostly to the Dutch. Thomas, supra note 41, at 178.

52 For several years, the colonies of Portugal had been targets of opportunity for France and the Netherlands. The Dutch conquered the San Tomé Island in 1599 and the colony of Angola in 1641. L. Rout, The African Experience in Spanish America. 1502 to the Present Day (1976), 43.

53 Ibid., at 43. See for more details Schwartz, P., ‘Panic in the Indies: The Portuguese Threat to the Spanish Empire, 1640-1650’, (1993) 2 (1–2) Colonial Latin American Review 165.

54 It was not until 1651 that, realizing the great amount of losses incurred by the fact that the slave trade had been left in the hands of foreign interlopers, the Spanish crown entrusted (once again) the guild of Sevillian merchants with the supply of African labour in the Americas. However, they were ill equipped and unable to meet their obligations. See Scelle, supra note 12, vol. 1, at 491–3. On the (slow) reaction of the Council of the Indies see Vilar, E. Vila, ‘La sublevación de Portugal y la trata de negros’, (1976) 2 (3) Ibero-amerikanisches Archiv 171.

55 This contract is more concise than many of the trading agreements the crown had previously signed with the Portuguese, which had over 48 clauses. M. Vega Franco, El trafico de esclavos con América (Asientos de Grillo y Lomelín, 1663-1674) (1984), 27.

56 F. Gaitán-Ammann, ‘Daring Trade: An Archaeology of the Slave Trade in Late-Seventeenth-Century Panama (1663–1674)’, Ph.D. diss., Department of Anthropology, Columbia University, New York, 2012, at 119. They were the heirs of a solid, if declining, foreign banking tradition well implanted at the Spanish Habsburg court. See C. Sanz Ayán, Los banqueros y la crisis de la Monarquía de 1640 (2013).

57 The former was deemed ‘appropriate’ and the latter, ‘neutral’. Scelle, supra note 12, vol. 1, at 496.

58 Donnan, E., ‘The Early Days of the South Sea Company, 1711-1718’, (1930) 2 Journal of Economic and Business History 419, at 420.

59 ‘The first two were Protestant states, and the crown could not bring itself to trade openly with heretics. There remained only France, but that nation was at war with Spain until 1659 Peace of the Pyrenees and would remain the sworn enemy of all Hapsburgs until 1700’. Rout, supra note 52, at 43–4.

60 ‘[F]ar from limiting itself to the distribution of slave trading licences to dealers sailing from the coasts of Africa towards the New World, Grillo and Lomelin's firm would become the first exclusive slave trading concessionaire to operate directly from the Spanish Indies’. Gaitán-Ammann, supra note 56, at 6.

61 P. Curtin The Atlantic Slave Trade. A Census (1969), 22. The Grillos contract may not have been the first contract to use this measure, but it entrenched piezas de Indias as the legal unit for counting African slaves in a commodified form. See Naverrete, M.C., ‘Los años inciertos del comercio esclavista a los reinos de Indias: 1640-1680’, (2015) 45 Historia y espacio 11, at 25.

62 As the Grillos drew on markets within the Americas to meet their asiento commitments, commercial networks and distribution routes changed – direct voyages from Africa to Spanish America became uncommon, whereas Jamaica, Barbados, and Curaçao became the busiest slave trade depots in the Caribbean. Elis, D. and Richardson, D. (eds.), Extending the Frontiers: Essays on the New Transatlantic Slave Trade Database (2008), 35.

63 The literature on this topic has become considerable. For a classic see A. Girard, Le commerce français à Séville et à Cadix au temps des Habsbourg: contribution à l’étude du commerce étranger en Espagne aux XVIe et XVIIe siècles (1932). For a recent study see E. Crailsheim, The Spanish Connection. French and Flemish Merchant Networks in Seville (1570-1650) (2016).

64 In the seventeenth century, Spain signed a series of treaties of commerce with Holland, England, and France that admitted the indirect involvement of foreign merchants in colonial trade and strengthened their presence in Seville and Cadiz. The treaties granted them the same tariff as their competitors and special judicial protection through the nomination of a juez conservator. See S. Stein and B. Stein, Silver, Trade, and War: Spain and America in the Making of Early Modern Europe (2000), 58–67.

65 See Solana, A. Crespo, ‘El juez conservador: ¿Una alternativa al cónsul de la nación?’, in Aglietti, M. et al. (eds.), Los cónsules de extranjeros en la Edad Moderna y a principios de la Edad Contemporánea (2013), 2233. Rodríguez, F. Zamora, ‘“Dar el cordero en guarda del lobo”. Control hispánico sobre los consulados extranjeros durante el siglo XVII inicios del XVIII’, (2015) 30 Tiempos Modernos 1.

66 Montón, A. García, ‘Corona, hombres de negocios y jueces conservadores. Un acercamiento en escala transatlántica (S. XVII)’, (2015) 90 Revista de historia Jerónimo Zurita 75, at 77.

67 The Grillos provided them with an annual salary of 3,000 pesos – this was a considerable amount, higher for instance than the governors’ salary (2,200 pesos per year). See Vega Franco, supra note 55, at 128–9.

68 Another illustration can be found in the simplified and centralized scheme that the asiento set up to ensure steady revenue for the crown. The asentistas agreed to deliver 500 slaves per year to a predetermined shipyard tax-free (as they were destined to work for the state's shipbuilding program), while the 3,000 remaining would be introduced through the ports of Cartagena, Veracruz or Portobello at a taxation rate of 100 pesos per piezas de Indias. At the end of each year, the Grillos’ agents in Cartagena were to submit a complete report of the deliveries and tax payments to the senior royal official in that city. The state could expect to get a minimum of 300,000 pesos in tax money from the Grillos each year, regardless of the actual number of slaves the Genoese would succeed in shipping, and with limited involvement of the colonial administration. It was anticipated that by the end of the contract, the Royal Treasury would have received at least 2,100,000 pesos.

69 M. Bertrand, Grandeur et misère de l'office. Les officiers de finances de Nouvelle-Espagne (XVII-XVIIIe siècles) (1999), at 8–9.

70 ‘Taking the activities of the asiento away from ordinary courts was seen as a remedy to the support and indulgence of local American authorities with regard to the illegal traffic of slaves that adversely affected fiscal recollection’. García Montón, supra note 66, at 106.

71 The locations where the asentistas asked to place judges-conservators are highly instructive. For instance, the Grillos installed some of their ‘most capable agents’ in the city of Panama – a crucial commercial location in the Hispanic Empire, through which all the silver bullion coming up from the mines of Potosi was channelled on its way to Spain. The city also served as a port of transit for all the African captives who were transported to Peru – by far the largest slave market of all the Spanish colonies in the Americas. See Gaitán-Ammann, supra note 56.

72 Alejandro García Montón has found that, out of the 41 nomination proposals that were presented by the Grillos over the years, 30 were accepted and eight were rejected. García Montón, supra note 66, at 89.

73 AGI, Leg 2834, Consulta del Consejo de Indias. 08-VIII-1664, cited in García Montón, supra note 66, at 89.

74 This is why Robert Zaugg considers judges-conservators to be ‘serving two masters’ (‘serviteurs de deux patrons’). Zaugg, R., ‘Entre diplomatie et pratiques judiciaires: la condition des étrangers sous l'ancien régime napolitain’, (2013) 17 Revue d'histoire maritime 321, at 328.

75 Article 6 of the contract foresaw that judges-conservators would play a crucial role in this matter: they were to supervise the Grillos’ factors and be involved in all steps of the procedure. They could be present in Spain during the vessels’ anchorage inspections and in the colonies when slaves were disembarked, measured, and sold. They were entitled to inspect any ship anchoring in the Indies and ask for administrative measures to be taken against corrupt royal officials. On the powers of judges-conservators, see García Montón, supra note 66, at 106.

76 Gaitán-Ammann, supra note 56, at 63.

77 The asentistas signed, in 1662–1663, a series of contracts with foreign chartered companies: one with the Dutch West India Company for 1,200 to 2,000 piezas de Indias to be delivered to Curaçao; the other with the English Royal African Company for 5,000 slaves to be delivered in Jamaica and Barbados every year (so 35,000 in total). On the annulment and suspension of these contracts, see Vega Franco, supra note 55, at 39–49.

78 The Dutch are the ones who emerged relatively unscathed from this situation. All subsequent asentistas employed the West Indian Company for supplying their ships in Curaçao, and used banks in Amsterdam for their financing. This tendency culminated in 1685, when a Protestant banker and agent of the Dutch Company, Balthasar Coymans, was granted the asiento. On this asiento, see J. Postma, The Dutch in the Atlantic Slave Trade. 1660-1815 (1990), at 41–8; Wright, I.A., ‘The Coymans Asiento (1685-1689)’, in Blog, P.J. and Japikse, N. (eds.), Bijdragen voor Vaderlandsche Geschiedenis en Oudheidkunde (1924).

79 Rolando Mellafe explains how the slave trade had become highly complex and costly, requiring a capital investment that only commercial companies could make, at the same time that the Spanish empire deteriorated economically. R. Mellafe, Negro Slavery in Latin America (1975), 50.

80 Weindl, supra note 11, at 237.

81 For their reasoning, see Scelle, supra 12, vol. 2, at 31–4.

82 Rout, supra note 52, at 46.

83 For the generous conditions given to the company in the contract see Scelle, supra note 12, vol. 2, at 48–53.

84 Scelle, supra note 18, at 626.

85 On the ‘jealousy of trade’ as a particular conjunction between politics and the economy, when commercial trade was subservient to political considerations see I. Hont, Jealousy of Trade: International Competition and the Nation-State in Historical Perspective (2005).

86 This article was added in light of the difficulties encountered by past asentistas. For the difficulties the Grillos faced in these matters see García Montón, supra note 66.

87 In 1700, the company invoked article 8 of their contract to revoke one of their judges-conservators, the alcalde of Mexico, whom the company perceived to be more attuned to the crown's interests than to theirs. On this incident (and an implicit critique of the company), see Scelle, supra note 12, vol. 2, at 56–7.

88 An important dispute arose in Cartagena, the company's main distribution centre, following the nomination of Juan Días Pimienta as the city's governor in 1699. In six months, the governor closed the company's operation in the port and arrested its chief agent for dealing in contraband goods and conspiring to defraud Spain of the duties to be paid on incoming slaves. Furious, the company ‘charged Días Pimienta with theft and extortion, sought his dismissal, and presented a demand to Madrid for 752,000 pesos in compensation for damages’. Rout, supra note 52, at 47. Rout considers that Días Pimienta's charges were, in retrospect, largely justified.

89 Scelle, supra note 12, vol. 2, at 64.

90 Ibid., at 58.

91 Rout, supra note 52, at 49. The company advanced 200,000 pesos to the Spanish government for this privilege and, in return paid a duty that was 4.5 per cent lower than the one that the Portuguese had been granted. Furthermore, a rebate of 17 per cent of the duties was to be paid in any year in which 4,800 piezas were delivered.

92 Article 20 of the asiento (which can be found in A. Del Cantillo, Tratados, convenios y declaraciones de paz y de comercio que han hecho con las potencias extranjeras los monarcas españoles de la Casa de Borbón (1843), 35).

93 For instance, in June 1702, the Council of the Indies prohibited the sale of Mina or Cabo Verde slaves in Indies ports. The company protested this prohibition, and merchant groups in the Indies also demanded its rescission, but the council refused to retreat from its position on the ground that these slaves were ‘exceedingly barbarous’. As Rout stressed, the fact that ‘both the Portuguese and Dutch had supplied these slaves to Spanish America prior to the award of the asiento to the French appears to have been a consideration the council conveniently overlooked’. Rout, supra note 52, at 51. The king had to intervene to resolve the matter.

94 Scelle, supra note 12, vol. 2, at 225.

95 Colin, A., ‘L'Asiento français (1701-1713) et anglais (1713-1750) et le commerce franco-espagnol vers 1700 à 1730’, (1929) 17 (3/4) Revue d'histoire économique et sociale 403.

96 That the peace agreement was signed the day after the conclusion of the commercial agreement shows how important the award of the asiento had been for the British. Scelle, supra note 12, vol. 2, at 570.

97 On the advantages that the British obtained, see Scelle, supra 12, vol. 2, at 552–72.

98 Carmona, S., Donoso, R. and Walker, S., ‘Accounting and International Relations: Britain, Spain, and the Asiento Treaty’, (2010) 25 Accounting, Organizations, and Society 252, at 257.

99 For a classic see J. McLachlan, Trade and Peace with Old Spain, 1667-1750 (1940).

100 W. Wright, An Address to the Proprietors of the South-Sea Capital (1732), 13.

101 A. Swingen, Competing Visions of Empire. Labor, Slavery, and the Origins of the British Atlantic Empire (2015), 195. For a summary of the various explanations, see Baxter, D., ‘Asiento’, in Frey, L. and Frey, M. (eds.), The treaties of the War of the Spanish Succession. A Historical and Critical Dictionary (1995), 19.

102 C. Palmer, Human Cargoes. The British Slave Trade to Spanish America, 1700-1739 (1981), 10.

103 Ibid., at 134.

104 Ibid. Judges-conservators also saw their jurisdiction contested by local authorities. In 1727, for instance, the viceroy of Mexico ruled that the company's judges only had passive jurisdiction, meaning that they could be involved only when the company was a defendant. Since, as a large-scale creditor, the company was almost always a plaintiff in its actions, ‘this was to deny it redress’. P. Woodfine, Britannia's Glories: The Walpole Ministry and the 1739 War with Spain (1998), 79.

105 Palmer, supra note 102, at 130.

106 This is my reading of V. Gardner Sorsby, ‘British Trade with Spanish America Under the Asiento, 1713-1740’, PhD thesis, University of London, 1975.

107 For instance, in 1717, the Junta ruled in favour of the asentista who complained about the imposition of unauthorized taxes, duties and charges by local officials in Spanish America. The Junta agreed that such taxes were harmful to business and ordered the charges to be removed. Palmer, supra note 102, at 130–1.

108 The Junta was involved in the disputes concerning the annual ship, and in the refusal to issue the company's licence to send such ship in 1718 and 1724. See Anes, R. Donoso, ‘Los navíos anuales de permiso del asiento de esclavos con Inglaterra hasta la Feria de Portobelo de 1731’, (2008) 4 Revista de Historia Naval 1.

109 It was within this tense atmosphere that captain Robert Jenkins appeared in London in 1738 and presented his severed ear in a jar to Parliament. The tale is that his ship Rebecca had been seized by a Spanish guarda costa in 1731 and his ear had been cut off. The story angered members of the Commons and enflamed British public opinion. The following year, Britain commenced hostilities in what became known as the War of Jenkins’ Ear (but known as guerra del asiento in Spain). Though the company's asiento nominally lasted another decade, that war marked the rupture of the contract. ‘The British did not lose interest in the trade to Spanish (or French) America with the asiento’s demise, but after 1739, they would seek alternate ways of using the slave trade to wrench foreign markets open to trade.’, G.O'Malley, Final Passages. The Intercolonial Slave Trade of British America, 1619-1807 (2014), 263.

110 In 1750, Britain gave up the asiento and the Spanish authorities ‘restore[d] the slave trade to the sphere of internal law from which it should never have left’. Scelle, G., ‘Une institution internationale disparue: l'assiento des nègres’, (1906) 13 RGDIP 357, at 395.

111 Palmer, supra note 102, at 60. The highest salary was paid to the president of the Council of the Indies; as ‘chief judge’ of the asiento he received 2,000 pesos a year. Members of the Junta del asiento received 600 pesos a year. In the colonies, annual salaries of judges-conservators ranged from 2,000 to 3,000 pesos.

112 J. Martinez, The Slave Trade and the Origins of International Human Rights Law (2012), 13. This view typically stresses that slave trade and slavery are among the few prohibitive norms of jus cogens, thereby portraying a heroic image of the discipline. For a much more nuanced approach see J. Allain, Slavery in International Law. On Human Exploitation and Trafficking (2013).

113 This point has been forcefully made by Mégret, F. in ‘Droit international et esclavage: pour une réévaluation’, (2013) 18 African Yearbook of International Law 121.

114 On the possibility of bridging the historical investigation and the contemporary commentary, and in particular on the legitimate role of anachronism in international legal method see Orford, A., ‘On International Legal Method’, (2013) 1 London Review of International Law 166, and A. Orford, ‘The Past as Law or History? The Relevance of Imperialism for Modern International Law’, IJIL Working Paper 2012/2.

115 Braun, T.R., ‘Globalization: The Driving Force in International Investment Law’, in Waibel, M. et al. (eds.), The Backlash Against Investment Arbitration. Perceptions and Reality (2010), 496.

116 Stern, P., ‘Companies: Monopoly, Sovereignty, and the East Indies’, in Stern, P. and Wennerlind, C. (eds.), Mercantilism Reimagined: Political Economy in Early Modern Britain and Its Empire (2014), 180.

117 Rogers, C., ‘The Politics of International Investment Arbitrators’, (2013) 12 Santa Clara Journal of International Law 223, at 223.

118 Ibid. The claim that investment arbitration is ‘neutral’ is widespread in academic, practitioner, and policy literature. See for instance International Centre for Dispute Resolution, ICDR Handbook on International Arbitration and ADR (2017); Latham & Watkins, ‘Guide to International Arbitration 2014’, available at www.lw.com/thoughtleadership/guide-to-international-arbitration-2014. Other references can be found in Van Harten, G., ‘Investment Treaty Arbitration, Procedural Fairness, and the Rule of Law’, in Schill, S. (ed.), International Investment Law and Comparative Public Law (2010).

119 J. Billet, International Investment Arbitration. A Practical Handbook (2016), 21. Even more critical, Gus Van Harten writes that arbitration ‘offers a neutral and impartial forum in which to resolve investor-state disputes as a basis for protecting foreign-owned assets and ensuring the rule of law’. Van Harten, G., ‘Arbitrator Behaviour in Asymmetrical Adjudication: An Empirical Study of Investment Treaty Arbitration’, (2012) 50 (1) Osgoode Hall Law Journal 201, at 213. See also Schill, S., ‘Private Enforcement of International Investment Law: Why We Need Investor Standing in BIT Dispute Settlement’, in Waibel, M. et al. (eds.), The Backlash Against Investment Arbitration. Perceptions and Reality (2010), 31.

120 Part of this critique is captured by the argument that because investment treaty arbitration is an exercise in public law, it should take into account the underpinning public purpose of economic and social development for participating states’ populations and economies. For an overview see C. Foster, ‘A New Stratosphere? Investment Treaty Arbitration as “Internationalized Public Law”’, (2015) 64 ICLQ 461. For a similar argument made from a different approach see Cutler, C., ‘Human Rights Promotion Through Transnational Investment Regimes: An International Political Economy Approach’, (2013) 1 (1) Politics and Governance 16.

121 With the usual caveat that this trend is slowly changing. See Roberts, A., ‘Clash of Paradigms: Actors and Analogies Shaping the Investment Treaty System’, (2013) 107 AJIL 45, at 76.

122 See Técnicas Medioambientales Tecmed S.A. v. United Mexican States, ICSID Case No. ARB(AF)/00/02, Award of 29 May 2003; Metalclad Corp v. United Mexican States, ICSID Case No. ARF(AF)/97/1 (NAFTA), Award of 30 August 2000; Methanex Corporation v. United States, UNCITRAL (NAFTA), Award of 3 August 2005; Chemtura Corporation (formerly Crompton Corporation) v. Government of Canada, UNCITRAL (NAFTA), Award of 2 August 2010; Philip Morris Brands Sarl, Philip Morris Products S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay, ICSID Case No. ARB/10/7, Award of 8 July 2016.

123 See CMS Gas Transmission Co. v. Argentine Republic, ICSID Case No. ARB/01/8, Award of 12 May 2005; Continental Casualty Company v. Argentine Republic, ICSID Case No. ARB/03/9, Award of 5 September 2008; National Grid plc v. Argentine Republic, UNCITRAL (NAFTA), Award of 3 November 2008.

124 My critique is not about the moral quality or specific actions of professionals; it is systemic in a way approaching M. Koskenniemi, ‘It's not the Cases, It's the System: Sornarajah, M., Resistance and Change in the International Law on Foreign Investment’, (2017) 18 Journal of World Investment & Trade 343.

* CNRS Research Fellow, Ecole Nationale Supérieure, Paris []. I would like to thank Martti Koskenniemi, Mario Prost, Immi Tallgren, and Geoff Gordon for their comments on previous drafts.

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Leiden Journal of International Law
  • ISSN: 0922-1565
  • EISSN: 1478-9698
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