Portrait of a researcher
Professor of International Investment and Trade Law Steffen Hindelang’s current research falls roughly into three areas: public international law, EU law, and German constitutional and administrative law.
In public international and EU law, Steffen has placed a focus on the regulation of economic activities, especially the protection of foreign investment, the arbitration of investment disputes, and the interaction of international and EU law. In administrative law, he deals with foreign trade law and dual-use goods in a doctrinal fashion. In constitutional law, Steffen has worked in particular on questions relating to the freedom of speech in the digital age.
In international investment law, Steffen takes particular interest in international investment law’s interplay with its adjacent and connected areas such as EU law. He also finds an interdisciplinary embedment of his research useful, in particular in the scientific findings of economic science and political economy.
When it comes to international investment law’s relation to other areas of public international law, he works towards a stronger re-integration of the former into the larger body of public international law.
Findings of arbitral tribunals charged to decide a specific dispute between a foreign investor and its host state based on an investment protection treaty, praised by some as “innovative” or “developments in public international law which are long overdue”, can at the same time be described as challenging some of the fundamentals of public international law.
“For example, investment tribunals claim to advance ‘consistency’ in international investment law by way of ‘de facto precedent’ and similar concepts, i.e. relying on previous rulings by arbitral tribunals for interpreting an investment instrument. Attractive as it may be at first glance, such concepts seem highly problematic when sidestepping the binding methodology of interpretation in public international law, something more frequently observed. By abandoning the methodology of interpretation enshrined in the Vienna Convention on the Law of Treaties, the tribunals free themselves from the bonds of their masters: the state parties to an investment treaty”, Steffen says and continues:
“In my research, I seek not only to put forward sound constructions of the relevant rules and principles of international investment law but also to reveal the consequences of a given interpretation in terms of relative power, which is attributed to a certain actor by a certain interpretation.”
In a monographic study on Investor-State Dispute Settlement, prepared for the European Parliament, Steffen described what he means by this approach and sketches key issues linked with current investment arbitration practice, such as challenges to the Vienna rules on treaty interpretation, or the rules on state responsibility and a consequential weakening of the position of the contracting State parties to an investment agreement vis-à-vis the investor.
This aside, Steffen is particularly interested in exploring the cross-sections and incompatibilities of international investment law and EU Law. This brings the so-called concept of autonomy of EU law and its impact on international investment arbitration into the picture, something that is hotly debated. In the Achmea judgment, the Court of Justice of the European Union (CJEU) concludes that investor-State dispute settlement in an intra-EU context is incompatible with EU law, in particular with the principle of autonomy. That principle can be said to serve the self-assertion of EU law, both, towards domestic and international law.
However, the story to be told about the principle of autonomy will not come to a close any time soon, Belgium has just requested a CJEU Opinion on the revised Draft Energy Charter Treaty.
Turning to public law, over the course of the last five years or so, Steffen broadened his research base, acquiring some interdisciplinary expertise in the fields of media and communication studies, political theory, and the regulation of free speech by law and technology. In 2019, he published his findings in a monograph with Springer titled “Freiheit und Kommunikation” (Hindelang, Steffen, Springer, 2019).
“The book suggests answers to how constitutional protection of free public discourse can succeed in the age of Facebook and fake news. It examines how the constitution responds to a mass media discourse that is no longer organized only by broadcasting and the press of the classical type, but also by a multitude of individuals”, Steffen explains.
The prevailing constitutional dogmatic concept of protection of mass communication in the German constitutional law is still modeled to the realities of a one-to-many communication and favors old mass media. This “surrogate model of freedom” cannot adequately account for real-world changes.
“Today, individuals must be protected not only from but also in their mass media power. Based on insights from communication science, a constitutional understanding is developed that puts the individual back at the center of a free mass media discourse.”
Turning from ongoing research to potential new projects, Steffen observes a liberal, market-oriented, rule-based international economic order that is increasingly under pressure. Major players, such as the United States and China, are shifting from cooperation to protectionism.
“The European Union’s open-door policy is up for question. In the course of the measures adopted to combat the various fall-outs due to the COVID-19 pandemic, the EU launched a comprehensive trade policy review, where protectionists and free-traders make their case.”
However, in addition to the pandemic, there are three big challenges which no camp can afford to ignore. First, the multilateral trading system, i.e. the WTO, once a useful forum to settle disputes over the direction of trade policy, has come under strain. Second, domestic pressure on governments has increased, in particular in high-income countries, to account more prominently for non-commercial concerns: from climate change, over social justice, to national security. And, third, Brexit weakened the camp free traders in the EU.
“For the EU the choice is not easy: Walling off, retaliating reciprocally, or keeping the doors open to the world – that is the question”, concludes Steffen Hindelang.
As one of the Directors and founders, Steffen Hindelang is involved in the CELIS Institute, which functions as a hub for desk research, information, and intelligence as well as knowledge transfer in the area of foreign investment. One of its main aims is to study and to further the development of an emerging “Common European Law on Investment Screening” - in short,”CELIS".
Another project in which Steffen is involved is YSEC: the Yearbook of Socio-Economic Constitutions. The broad theme of the Yearbook series revolves around the constitutional frameworks for economic activities and their interaction with the social sphere.