Innovative Legal Theories

His doctorate work consisted of a demonstration that the Internet is, in reality, a virtual space, and should therefore, be treated as a new International Space under International Law. (Der virtuelle Raum – sein völkerrechtlicher Status, JurPC, Web-Dok. 35/1999, Germany, 1999). He was the drafter of the Resolution of Quito for the Internationalization of the Cyberspace quito (JurPC , Web-Dok. 47/2002).

During the 2020 Corona virus pandemic, Professor Graham worked on an efficient interpretation of the Vienna Convention on the Law of Treatise for the purpose of including the concept of Hardship and the Duty to re-negotiate a treaty in the light of the momentous impossibility to comply with treaty obligations.  (Les traités internationaux et le Hardship, France, 2021 (to be published).

Finally, Professor Graham has been focusing over the last years on the formation of a new discipline that would study the international aspects and applications of national constitutions and how the national and international system can live together, especially in the age of refutation of International Law.  A particular look will be taken in regard to the conflicting norms and results between national constitutions and international investment awards. (International Constitutional Law, in preparation)

Arbitration

Professor Graham teaches that the Grundlegung of International Arbitration is not State Law, but the arbitration clause in itself.  An arbitration is not rooted in the legal system of the seat of arbitration, or in any order State legal system. Thus, the States’ only role in the arbitration process is to determine its willingness to recognize the arbitration award that is the subject of enforcement.  Consistent with this position, Professor Graham is in favor of the enforcement of annulled awards and proposes there be no ipso jure obligation for an international arbitral tribunal to follow judicial injunctions issued by States. (El anclaje conceptual del arbitraje internacional, RMDIP, Mexico, 2017.62).

Private International Law

Professor Graham considers the notion of “conflict” in Private International Law to be a non sequitur, as it is an impossibility for such jurisdictions and Laws to be in conflict. Rather than there exist a “rule of conflict,” Graham has argued that the term “rule of designation” is more appropriate (Breves observaciones sobre la noción de “conflicto” en el Derecho internacional privado moderno, Suplemento Derecho internacional privado, Suplemento Derecho internacional privado – El Dial, Argentina, 2005)

Professor Graham rejects the use of third legal orders such as lex mercatoria in international arbitrations.  If the Grundlegung of the disputed contract is to be the promise by the parties therein, the international contract has its roots within itself rather than in an outside legal system.  He does, however, accept the caveat that the lex mercatoria is an applicable method in arbitration for the determination of the applicable rules en voie directe.

In matter of social corporative responsibility, Professor Graham denies the legal character of such responsibility, being for him, just what it is: a “social-moral” commitment. (La Responsabilidad social empresarial y Derechos Humanos: lo que es y lo que no es, Pauta 91, ICC Mexico, 2020).

Transnational Law

Scelle was the first to oppose the “artificial” distinction between “Private” and “Public” International Law. Likewise, the Italian school – with authors such as Anzilotti, Ago, Monaco and Quadri -, was always ambivalent in both disciplines. There are so many situations where a hypothesis implies the application of both Public International Law and Private International Law; and all that with a touch of the famous lex mercatoria. For these reasons, Professor Graham subscribes to Scelee’s view of that only “one” International Law exists.

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