ISDS Reform

Many of our ideas have been tested and revised in light of dialogue with UNCITRAL participants. In addition to listening to the negotiations and collecting documents, we converse with a wide range of negotiators and other actors in the room, including representatives of civil society, international organizations, and private-sector groups. We have supplemented these informal interactions with formal interviews throughout the proceedings, though all material from unofficial discussions is unattributed given the ongoing nature of the process.

These modes of information gathering and exchange fall within the broad tradition of ethnographic methods, which are characterized by sustained observation of a particular site with access to, and repeated interactions with, key actors. Our process is abductive and iterative, and like other scholars who have drawn on close observation for theory building, we aim at conveying how actors perceive their world and act within it by generating new framings.

Our approach builds on the research of Susan Block-Lieb and Terence Halliday, who studied UNCITRAL as ‘participant- observer insiders’ and used their close observations to produce general theoretical insights about international organizations as lawmakers.

Similarly, Gregory Shaffer describes his approach to studying trade law as ‘para-ethnographic methods’ because the participants are often themselves engaged in quasi-social scientific studies of the same processes to understand and respond to them; engagement is built around a shared goal of making sense of development. Proximity is both a strength and weakness of the method: we adopt a deliberately empathetic posture toward officials, trying to understand how they view the world and what motivates and constrains them.