Paolo Vargiu

The recent award in Ahron G. Frenkel v. Republic of Croatia has already succeeded in dividing the very tribunal that rendered it - never an encouraging omen. It is unlikely to cease causing a stir in the near future, given its immediate impact on the claimant and its longer-term contribution to the perennial headaches induced by the doctrine of res judicata in investment arbitration . This post addresses four principal matters: the circumstances giving rise to the dispute in Frenkel v. Croatia; the competing analyses of res judicata advanced by the majority of the tribunal and the dissenting opinion; the importance of finality vis-á-vis a rigorous interpretation of the applicable law; and what the Frenkel award adds to the debate on the wider question of whether investment arbitration aspires to systemic coherence or rests on formal distinctions alone. Factual Background and Procedural History The facts of the case are fairly commonplace. Ahron G. Frenkel, an Israeli national, initiat...

There is a moment in The Merchant of Venice that sticks: Portia, in disguise, takes the floor, and with nothing more than a few inches of parchment and an arsenal of words, unseats Shylock’s claim to his pound of flesh. She has no badge, no robes, no divine mandate, but the court listens nonetheless. One could argue that Portia wins not by law, but by the force of her authority stitched together from reason, rhetoric, and something harder to pin down: moral suasion. It’s a scene that should give anyone working in arbitration a slight, uncomfortable itch. Strip away the costume drama and you’re left with the same awkward question: what gives an arbitrator the right to decide? In court, judges can fall back on the full, smug weight of the state. Arbitrators, on the other hand, operate on a thinner diet. Their legitimacy rests on consent. Consent is lovely, until one realises how easily it can be faked, coerced, or wrung out under duress. We love to talk about freedom of contract, but we ...

There are few moments in academic life that so successfully simulate the futility of human endeavour as staring at a loading bar while 120,000 rows of data grind through a script like a constipated tortoise. It is a sort of epistemological purgatory: not quite Dante’s Inferno, but certainly the lesser-known ninth circle of Microsoft Excel. And here I am, a very occasional tourist in the land of empirical research trapped in this bleak waiting room of science, watching nothing happen in real time. I don’t do this often. Every two or three years, something compels me to wander outside the agreeable pastures of black-letter law into the pixelated trenches of data cleaning, coding, and praying that the file won’t crash. It is like jury duty or visiting relatives in hospital: necessary, slightly noble, best kept brief. This time, it is an ambitious little research project involving a mountain of institutional data. Somewhere in this digital mulch is the thing I’m looking for, like a signal,...

As part of trying to make sense of the year that just happened - teaching, writing, occasionally sleeping – I am starting here with some thoughts on my Law and Religion module. It was my first time teaching it, and like most firsts, it was equal parts thrilling, awkward, enlightening, and vaguely chaotic. But something happened when things clicked, and students cared; therefore, before it all blurs into next year’s to-do list, I wanted to write a little of it down. I called the first unit “Law, Religion and the Backstory” because it sounded like something a person might actually want to read (or click, these days) on. The idea was that each unit would be “Law, Religion and…” something - “Law, Religion and Rights,” “Law, Religion and the Courts,” “Law, Religion and the Infinite Bureaucratic Machine” - but it turns out the backstory is complicated, and possibly cursed. I was trying to be clever, or at least less boring than “History of Law and Religion,” which feels like a one-way ticket...

With today’s tutorial, I slam the door on the 2024–2025 academic year - a year that began, by most estimates, sometime after the Norman Conquest but before the invention of the dishwasher, and has only recently released us from its stubborn and faintly damp grasp. Term 1 stretched on like one of those Russian novels you feel virtuous owning but morally depleted trying to finish - page after page of existential trudgery. Term 2, by contrast, shot past like a shopping trolley (or my wheelchair) careening downhill: fast, erratic, and ending in a minor collision. Except for March. March, evidently, now comes in a new 14-week format, an extended director’s cut of confusion and deadlines. Since the memories are still vaguely warm, like the sad slice of toast forgotten under the tea towel, I am scribbling down some notes before the rot sets in, just enough to remind myself in October, when I’m muttering “how the hell did we get here again?” into my second coffee, that I have been through this...

An often forgotten thing about law is that it’s all words. Words in statutes, words in contracts, words in judgments, words in emails that make you wonder if some people have evolved beyond the need for punctuation. And yet, despite this, too many a law student (and, let’s be honest, quite a few lawyers) seem to believe they can master the trade without ever thinking too hard about language itself. They pore over legislation, memorise cases, and produce essays so structurally sound they could double as Brutalist architecture, but ask them to read a novel and they look at you like you’ve suggested taking up juggling as a form of professional development. Which is a shame, because literature teaches what no statute book ever will: how words work. It teaches rhythm, persuasion, subtext. It shows how meaning shifts depending on context, how ambiguity isn’t always a flaw but sometimes the very point. One can learn the law by reading legal texts, but no one can learn how to argue - really ar...

The thing about canons, whether literary or legal, is that no one agrees on them until they’re under siege. Then suddenly, they become sacred; but before that, they’re just there, obvious, assumed, like gravity or bad coffee on campus. Literature has had its canon wars: the old dead white men, the reinventions, the rediscoveries, the bitter conferences where academics bristle over whether Chaucer is still relevant when people don’t even know what a reeve is. The law is supposed to be beyond that. A serious, structured discipline where you don’t waste time debating whether a certain precedent has overstayed its welcome. And yet, the core law curriculum has its own version of this fight, perhaps less dramatic but just as ideological. There’s always been a tension between legal education as a vocational exercise - teaching students how to draft contracts, file claims, and pass the professional exams - and legal education as an intellectual discipline. The latter, the argument goes, is abo...

Is it my job to prepare students for legal practice? The question comes up often enough that I sometimes wish I had a little badge to flash when it’s asked - something modest, tasteful, nothing flashy, just a plain card reading "I am not a careers advisor". It would save time, and we would all be spared that awkward smile people give when they realize I’m not going to help their child learn how to write a 600-word brief. That's because teaching law is not about teaching the law. It’s about teaching students how to think about the law, which is like teaching someone how to play jazz by handing them sheet music for Bach. Yes, it’s incredibly hard work, but so is everything worthwhile. The trouble is that a lot of people misunderstand what education is for. They think I’m here to assemble barristers like IKEA wardrobes or to hammer out solicitors on some ancient academic forge. Sorry, but no. My job is to mess with their heads - not in the shifty-eyed, Kafkaesque sense (alth...

On Monday I'll start teaching a new module. It’s mine - conception, design, execution. A virgin territory of legal pedagogy, untouched by other hands, and, yes, I suppose I’m proud of it. It feels a little like Frankenstein must have felt, looking at his creation before it began demanding all his free time and racking up the electricity bill. There’s the rush of novelty, the thrill of steering a ship I have built myself, but also the sinking realisation that I might now have to sail it through waters I haven’t charted and might not like. Fifteen years and counting of teaching law has left me, if not jaded, then at least comfortable. Comfortably numb, one might say, but that’s a touch melodramatic. The point is, most of my lectures are as finely aged as a good Camembert. I know where the tricky bits are, where the students will glaze over, where to throw in a joke about some current event to rouse them from their torpor. Everything is prepped, polished, and on autopilot. Occasionall...

 Suffering is a deeply subjective issue that questions the structure and theoretical objectivity of the legal system. The law seeks to classify and to draw defined boundaries around concepts as intangible as suffering, and it inevitably falters. It is here that literature can enter the stage, not as an antagonist to the law but as a companion, fluent in ambiguity where law demands clarity. If one considers how the law approaches the problem of suffering in the context of assisted dying, it appears that the courts mainly question how much suffering is too much, or what threshold must be crossed before the law permits a person to seek release. Judges are obviously constrained by precedent, language, and the fear of misstep, and the tools at their disposal, such as medical reports, philosophical arguments, and the cautious wisdom of case law, are far from straightforward. Courts must seek evidence, rationality, proof, but suffering is none of these things. I...

As an academic lawyer, keeping up can sometimes feel impossible. Legal developments churn out at a pace that rivals London’s rush hour, and alongside them is the relentless stream of academic discourse online and in person. Papers, panels, journal articles, social media posts, webinars - every bit of it carrying an air of urgency, as if missing out might spell professional doom. At some point this past term I’ve started to wonder how much of it really matters. It’s not that I don’t care about the law or my work - quite the opposite: I define myself as an academic, to the point that losing use of 75% of my body wasn’t as much a trauma as it usually is for other winners of the spinal cord injury lottery, because I could keep doing what I love without too many adjustments. 1 But trying to stay ahead of every new decision, every article that might be tangentially related to my niche, and every panel discussion hosted in some far-flung time zone often feels less like intellectual enrichmen...

 It's Christmas, I have ten spare minutes per day, and I'm re-reading a few classics. John Steinbeck’s Of Mice and Men is the one I've just finished, roughly 20 years after my first rodeo, and it has sparked some reflections on disability discrimination (I was a fully abled biped the first time I read it, and my perspective was understandably different). It's a classic, so the following synopsis is more for my own benefit should I ever actually get to write this paper than for anyone else's. The book revolves around the story of two itinerant labourers, George Milton and Lennie Small, who harbour a shared dream of attaining independence through land ownership. Lennie is a man with a cognitive disability, and he depends on George for guidance and protection. However, this relationship is rendered tragic by society's lack of understanding and accommodation for Lennie’s condition. While much has been written about Steinbeck’s commentary on marginalisation, friends...

 For fifteen years, I have resisted the siren call of the written lecture. Not out of laziness or disdain for preparation, but out of principle: from the moment I first stood in front of a classroom clutching a remote for a PowerPoint presentation, I always believed that the alchemy of a good lecture was not in the script, but in the delivery. I honed my craft during my PhD years, taking perhaps one too many public speaking workshop and eventually teaching some myself. It became clear to me that the essence of teaching was not in reading from a page, but in the living act of storytelling. Slides became my scaffolding, more detailed when the subject matter was unfamiliar, sparser and more evocative when it was well within my wheelhouse. The classroom became a sort of a stage, and at times I acted as equal parts scholar and raconteur (whether I was any good at the latter should be a question for my former students). This approach has served me well: over the years, I have relished th...

A new academic year is starting tomorrow and for some unclear reason I am feeling thrilled. Obviously, what is getting my blood pumping is not the prospect of teaching per se – that can be amazing, obviously, but after a few years it becomes too familiar a feeling to be a source of excitement – but rather the necessary structure and discipline it demands. I figured out, over the years, that summer may not be the most productive time of the year for me, writing-wise. I certainly have much more time in my hands than during teaching terms, but I also realised that open-ended mornings and afternoons make for fantastic reading slots – not so much for writing. Teaching brings with itself a schedule, non-negotiable commitments, and a sense of urgency: if I want to write until my class at 3 pm, I must get to it as soon as possible, which means that I have to deal with emails, administration and other less-than-interesting tasks quickly so that I have that coveted couple of hours to write. The ...

After a year-long hiatus, punctuated with a pleasant period of study leave and a harrowing few months on sick leave, I finally find myself, once again, in the familiar role of coaching my students for the Vis Moot. It is an endeavour that evokes ambivalence, akin to reuniting with an old friend who, while cherished, demands considerable time and energy. But let me be honest - how have I missed it! From an external perspective, the duties of a coach might seem limited to steering students through simulated legal proceedings, be it in an English courtroom or an American-style arbitration. Yet those who take part in a moot court, be they coaches or mooters, recognize its deeper essence. While the foundation undoubtedly lies in legal preparation and the students' professional growth, my emphasis - and the sentiment I strive to impart - transcends these bounds. When I speak to the new Vis Moot students, the first thing I try to stress upon is the fact that lawyers, and mooters, do not j...