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Home 2015 August (Page 3)

Cyber Responses “By The Numbers” in International Law

Published on August 4, 2015        Author: 

According to open source reports, the Obama administration is considering how to retaliate against China for hacks into the US government’s Office of Personnel (OPM). Although it has hesitated to openly pin the rose on China, the reports raise questions as to how it might respond consistent with international law.

The issue of responses to harmful cyber operations has generated a fair degree of rather confused dialogue among politicians, pundits and the public. In the aftermath of, inter alia, the Sony hack and the OPM incident, it might be useful to take a by-the-numbers look at the international law governing responses to harmful cyber operations. The International Group of Experts that prepared the 2013 Tallinn Manual on the International Law Applicable to Cyber Warfare under the auspices of the NATO Cooperative Cyber Defence Centre of Excellence dealt with the topic briefly. A follow-on project, “Tallinn 2.0,” is presently underway to examine these issues in greater depth. As director for both projects, I have found the most useful lesson to be that, despite persistent claims to the contrary by international law and policy alarmists, the extant international law provides a linear structure, and robust means, for response. In the same way that international law generally balances national interests and international stability in the non-cyber realm, so too does it with respect to cyber. What follows is a summary of my approach to deconstructing the applicable law.

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Revisiting ‘Interested Parties’ in Investor-State Arbitration: Ticaret Procedural Order No. 3’s Compelled Disclosure of Third-Party Funders

Published on August 3, 2015        Author: 

On 12 June 2015, the arbitral tribunal – composed of Professors Julian Lew, Laurence Boisson de Chazournes, and Bernard Hanotiau – in Muhammet Çap & Sehil Inşaat Endustri ve Ticaret Ltd. Sti v. Turkmenistan [ICSID Case No. ARB/12/6] issued its landmark Procedural Order No. 3, ordering the claimant-investors therein to confirm:

 “whether its claims in this arbitration are being funded by a third-party funder, and if so, shall advise Respondent [Turkmenistan] and the Tribunal of the name or names and details of the third-party funder(s), and the nature of the arrangements concluded with the third-party funder(s), including whether and to what extent it/they shall share in any successes that Claimants may achieve in this arbitration.” (Tribunal’s Decision in Order, para. 13.)

Ticaret Procedural Order No. 3 is the first such order issued in the ICSID (International Centre for Settlement of Investment Disputes) system that directly compels parties to disclose third-party funding arrangements in investor-State arbitration. Most importantly, it is the first publicly known arbitral order to confer (tacit) recognition to the critical role of third-party funders as part of the complex spectrum of interested parties in an investor-State arbitration. Apart from host States and investors, tribunals have thus far accepted that assignments of interest may be made by investor-claimants, without jeopardizing their standing in the dispute. In Ceskoslovenska Obchodni Banka, A.S. (CSOB) v. Slovak Republic [ICSID Case No. ARB/97/4, Decision on Jurisdiction, 24 May 1999, para. 32], held that, even in cases of assignments or subrogations of interest by investor-claimants, the “absence of beneficial ownership by a claimant in a claim or the transfer of the economic risk in the outcome of a dispute should not and has not been deemed to affect the standing of a claimant in an ICSID proceeding, regardless of whether or not the beneficial owner is a State Party or a private party.” The Ticaret Procedural Order No. 3 is the first instance that an investor-State tribunal openly conceded that a third-party funder’s financing arrangements with an investor-claimant could have a significant bearing on the substantive outcomes and procedural fairness of the arbitration. Read the rest of this entry…

 

Announcements: CfP Junior Scholars Roundtable on Settling Tax Disputes under Int’l Law (Luxembourg); Chatham House Meetings on Business & Human Rights, Foreign Affairs in National Courts (London)

Published on August 1, 2015        Author: 

1.  Call  for papers for junior scholars roundtable at University of Luxembourg conference on the settlement of tax disputes under international law, 12-13 November 2015, Luxembourg.  On  12-13  November  2015,  the  Research  Unit in Law of the University of Luxembourg,  with  the  support  of  the  Fonds  National  de  la Recherche Luxembourg,  will be holding a conference on the settlement of tax disputes under  international law, with the aim of analysing taxation issues through the  lens  of  international law and its dispute settlement procedures, and bringing   together  international  lawyers  and  tax  lawyers  to  do  so. Confirmed speakers already include Prof. Mads Andenas (University of Oslo), Prof. Ilias Bantekas (Brunel University), Dr N. Jansen Calamita (BIICL), Dr Abba Kolo (CEPMLP Dundee), Dr Sébastien Manciaux (Université de Bourgogne), Dr  Luca  Pantaleo  (TMC  Asser  Instituut),  Prof.  Alexander Rust (Vienna University  of  Economics and Business) and Epaminontas Triantafilou (Quinn Emanuel). Part of the conference will be a roundtable discussion for junior scholars; giving  them  an opportunity to present their research on issues covered by the conference and to receive feedback from the conference speakers.  Those selected  will  receive  a  bursary  to fund their travel and accommodation expenses, and may also have the opportunity to contribute to the conference proceedings,  which will be published.  We are now calling for applications to  present  a  paper  at  the  roundtable, and invite junior scholars (PhD candidates,  post-docs and fellows) with research interests in the field to apply by submitting an abstract (not exceeding 800 words) of their proposed paper,  together  with  a  copy  of  their  CV,  to Prof. Matthew Happold (Matthew.Happold {at} uni(.)lu).  The deadline for submissions is 5 September 2015.

2.  The International Law Programme at Chatham House will be hosting a meeting on ‘Foreign Affairs in National Courts: The Role of the Executive’ on Wednesday 23 September. The meeting will consider whether current practice is effective in maintaining a proper balance between the rights of litigants to have their claims decided and the interests of states in securing court decisions that do not harm the peaceful conduct of international relations. For further details and to enquire about registering see here.

3.  The International Law Programme at Chatham House will be hosting a meeting on ‘Business and Human Rights: Bridging the Governance Gap’ on Monday 28 September. The meeting will consider what trends are likely to emerge in the field of business and human rights over the next decade and will coincide with the launch of a Chatham House research paper. For further details and to enquire about registering see here.

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