We can also learn from the stakeholder identification theory that it may need to be
looked at through quite a wide and dense lens.
78 In this chapter, I have focused on
the possible application of stakeholder identification theory to one discrete issue in
the South China Sea arbitration. Yet we know that in international dispute settlement
that there are frequently linkages between different questions that make up any
dispute. It has been noted that there was an important link between the decision on
the status of the land features and the jurisdiction of the tribunal. So one decision
connects to another, which connects to another. Hence the possible width of scrutiny
that might be needed in trying to apply the stakeholder identification theory across an
entire judgment. We also have to appreciate that there might be trade-offs by the
decision-maker. So even if a stakeholder is denied an outcome in relation to one
issue, perhaps the decision-maker compensates by rewarding the stakeholder for
another issue. This dimension creates the density of analysis: the identification and
weighting of interests in the context of one decision may involve some trade-offs at
another level of decision-making. This sort of compromise can be seen, for example,
in maritime boundary disputes where the court or tribunal attributes different weight
to varied geographic and other factors along the course of a boundary.
5.2 Potential of Stakeholder Identification Theory?
Ultimately, although the task is complex and still entails subjective assessments, our
understanding of judgments can be enhanced through stakeholder identification
theory as a means to explain why decisions were reached the way they were. The
fit may not always be perfect and, as acknowledged at the outset, we may be limited
by what information is publicly available in any judgment or relevant documents or
pleadings in a case.
79 We are left, though, with the question as to whether stakeholder identification theory is just an explanatory tool,
80 or whether we can go
further and suggest that it is a normative tool in its own right that should be used
by decision-makers in UNCLOS dispute settlement to inform their processes and
better elucidate the reasoning by which decisions are reached. The latter seems
unlikely to be adopted in any formulaic fashion as has been followed here, but it
seems the very process of thinking broadly and deeply about the different actors and
their interests should be a rally cry to ensure greater transparency in the reasoning of
courts and tribunals. Moreover, the process allows for a broader appreciation of the
78 Such a lens may be captured by the idea of ‘interactive salience’, which acknowledges that
‘prioritization of stakeholders appears to be influenced by multiple activities within and outside of
the organization’. Mitchell et al. (2017), p. 143.
79 As noted above, interviews with the stakeholders may fill important knowledge gaps in this
regard. However, this method involves its own challenges (including access to all stakeholders and
questions of privileged information in a lawyer-client relationship).
80 As is the case in the management context. See Mitchell et al. (2017), p. 148 (referring to the
‘explanatory potential’ of the stakeholder salience model).
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N. Klein
looked at through quite a wide and dense lens.
78 In this chapter, I have focused on
the possible application of stakeholder identification theory to one discrete issue in
the South China Sea arbitration. Yet we know that in international dispute settlement
that there are frequently linkages between different questions that make up any
dispute. It has been noted that there was an important link between the decision on
the status of the land features and the jurisdiction of the tribunal. So one decision
connects to another, which connects to another. Hence the possible width of scrutiny
that might be needed in trying to apply the stakeholder identification theory across an
entire judgment. We also have to appreciate that there might be trade-offs by the
decision-maker. So even if a stakeholder is denied an outcome in relation to one
issue, perhaps the decision-maker compensates by rewarding the stakeholder for
another issue. This dimension creates the density of analysis: the identification and
weighting of interests in the context of one decision may involve some trade-offs at
another level of decision-making. This sort of compromise can be seen, for example,
in maritime boundary disputes where the court or tribunal attributes different weight
to varied geographic and other factors along the course of a boundary.
5.2 Potential of Stakeholder Identification Theory?
Ultimately, although the task is complex and still entails subjective assessments, our
understanding of judgments can be enhanced through stakeholder identification
theory as a means to explain why decisions were reached the way they were. The
fit may not always be perfect and, as acknowledged at the outset, we may be limited
by what information is publicly available in any judgment or relevant documents or
pleadings in a case.
79 We are left, though, with the question as to whether stakeholder identification theory is just an explanatory tool,
80 or whether we can go
further and suggest that it is a normative tool in its own right that should be used
by decision-makers in UNCLOS dispute settlement to inform their processes and
better elucidate the reasoning by which decisions are reached. The latter seems
unlikely to be adopted in any formulaic fashion as has been followed here, but it
seems the very process of thinking broadly and deeply about the different actors and
their interests should be a rally cry to ensure greater transparency in the reasoning of
courts and tribunals. Moreover, the process allows for a broader appreciation of the
78 Such a lens may be captured by the idea of ‘interactive salience’, which acknowledges that
‘prioritization of stakeholders appears to be influenced by multiple activities within and outside of
the organization’. Mitchell et al. (2017), p. 143.
79 As noted above, interviews with the stakeholders may fill important knowledge gaps in this
regard. However, this method involves its own challenges (including access to all stakeholders and
questions of privileged information in a lawyer-client relationship).
80 As is the case in the management context. See Mitchell et al. (2017), p. 148 (referring to the
‘explanatory potential’ of the stakeholder salience model).
258
N. Klein