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Scott Falls, Law’18, took a risk leaving a commercial litigation job at a Bay Street law firm to pursue his LLM in International Dispute Settlement in Geneva. But it’s a risk that’s starting to pay off after he was recently awarded the Society of International Economic Law’s SIEL/JIEL/OUP Prize for his essay on dispute mechanisms contained in free trade agreements. “The win is an acknowledgement that everything I’ve been able to do has been built on the back of my legal education that I got at Queen’s,” he says.
Currently based out of The Hague, Falls is an international arbitration lawyer at the Permanent Court of Arbitration. He credits his early career success to Queen’s Law’s international law and international trade experts, especially Professor Nicolas Lamp and sessional instructor Valerie Hughes (retired Director of the Legal Affairs Division of the World Trade Organization, WTO) for their feedback and encouragement while Falls followed his interest in international law in school and after graduation. “If I had not had their mentorship and support, I would not have been able to do it,” he says. “It’s really nice to see the risk I took in pursing that line of practical and academic work to be paying off.”
The essay prize, jointly established by the Society of International Economic Law, the Journal of International Economic Law, and Oxford University Press, is awarded for the best essay in the field written by an early-career professional.
Falls’ award-winning essay explores procedural flaws in dispute resolution provisions contained in the many free trade agreements between countries around the world. The topic began as his master’s thesis and following the positive feedback he received, he decided to write a comparative essay branching off from his thesis work. The WTO has long been regarded as an effective institution for resolving trade disputes between states, but once the United States upheld nominations to the WTO’s Appellate Body, there has since not been enough judges at the WTO to hear appeals. Without an Appellate Body, appeals cannot be heard, and states can delay enforcement of rulings at the panel stage simply by appealing the ruling.
In the absence of the WTO’s Appellate Body, countries may turn to the dispute resolution mechanisms in their free trade agreements, but these binding clauses may be flawed. In a 2001 dispute between Mexico and the United States under the NAFTA, the U.S. response to Mexico’s complaint about a tax on its exported soft drinks effectively prevented the creation of the tribunal required to arbitrate the dispute and essentially blocked Mexico from bringing a complaint against them. “A lot of these types of flaws exist in free trade agreements, and they can be exploited when there aren’t safeguards to account for the fact that one party might not act in good faith or may fail to fulfill an obligation,” Falls explains. With no other avenue, Mexico retaliated. Without effective dispute resolution mechanisms, he says that countries “risk this unilateral level of escalation of trade sanctions back and forth.”
Falls’ essay summarized his conclusions from analyzing various free trade agreements and the dispute resolution mechanisms contained within them to find out whether some of the procedural flaws had been corrected since the one contained in the previous NAFTA, especially in light of the WTO stalemate that may result in increased reliance on the mechanisms found in free trade agreements. Falls suggests that in order to be effective, dispute mechanisms need to allow the claimant to control more aspects of the dispute process or incentivize the participation of all parties to ensure that the dispute process does not get blocked or averted. Dispute mechanisms may be among the many provisions in a trade agreement, but they play an important role in upholding the rule of law, ensuring that justice cannot be avoided at the procedural level. “If you want to vindicate your rights under a certain trade agreement, then you can’t do it without effective third-party dispute settlement,” Falls says.
Falls views his prize win as a personal achievement as well as an early career milestone. “It’s a nice boost to my exposure and my goal in advancing my academic credentials in this field, which is very specialized, but filled with people who are absolutely brilliant,” he says.
Seeing his own success as proof of the value of pursuing his interests in law school, he encourages other law students to do the same. “Because it takes so much effort to become a lawyer, you owe it to yourself to do everything you possibly can to practise the type of law that you want to practice and that is going to be continuously interesting for you,” Falls says. “It takes a lot of perseverance, but I really think that if you do have a passion for a particular type of law, then you should really pursue it.”
Scott Falls also recently did a Queen’s Law Instagram takeover.