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A Possible Approach to Transitional Double Hatting in Investor-State Arbitration

Published on July 31, 2017        Author: 

In a recent ESIL Reflection, Malcolm Langford, Daniel Behn and Runar Hilleren Lie examine “The Ethics and Empirics of Double Hatting” in investor-state arbitration. (For the full article, see the Journal of International Economic Law). They found that a total of 47% of the cases they studied involved at least one arbitrator simultaneously acting as legal counsel. They also showed that the practice of double hatting is dominated by many of the most powerful and influential arbitrators in the system (who are often referred to as forming the system’s “core”). In some cases, double hatting occurs as a younger counsel transitions into being an arbitrator. But, “empirically, double hatting is more a norm than transition,” they conclude.

To me, there is a difference between the argument against double hatting in the core and in the periphery of the system. In the core of the most well established arbitrators, I think that the argument against double hatting in investor-state arbitration is strong. But in the periphery, when dealing with relatively new arbitrators or those with few appointments who are transitioning within the system, I think that a more nuanced approach is required. Why? Read the rest of this entry…

 

Announcements: CfP ESIL Prague-Nottingham Symposium; New Additions to the UN Audiovisual Library of International Law; UN GGE Recommendations on Responsible State Behavior in Cyberspace; Vacancy Lecturer in International Trade Law

Published on July 30, 2017        Author: 

1. Call for Papers – ESIL Prague-Nottingham Symposium: Non-UN Sanctions and International Law. On 5 May 2017, the first one-day event of the ESIL Prague–Nottingham Symposium on Non-UN Sanctions and International Law took place in Prague. The Symposium was co-organized by the Centre for International Law of the Institute of International Relations in Prague, the Czech Republic, and the Nottingham International Law and Security Centre of the University of Nottingham, the United Kingdom. The Prague event was kindly hosted by the Ministry of Foreign Affairs of the Czech Republic in the splendid venues of the baroque Czernin Palace in the vicinity of the Prague Castle. The second one-day event of the Symposium will take place on 10 November 2017 in Nottingham. The Call for Papers is now available. Extended deadline for submissions: 14 August 2017. Successful applicants will be notified by 1 September 2017.

2. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added new lectures to the UN Audiovisual Library of International Law website, which provides high quality international law training and research materials to users around the world free of charge. The latest lectures were given by Professor Alain Pellet on “The History of International Law and the Role of Sovereignty” and “L’histoire du droit international et du rôle de la souveraineté” as well as by Professor Anne Lagerwall on “The Principle ex injuria jus non oritur in International Law” and “Le principe ex injuria jus non oritur en droit international”.

3. Consultation on How to Implement the UN GGE Recommendations on Responsible State Behavior in Cyberspace. Together with the ICT4Peace Foundation, Leiden University’s The Hague Program for Cyber Norms is conducting an open consultation on how to best implement the UN Group of Governmental Experts’ (UN GGE) recommendations on responsible State behavior in cyberspace. In its 2015 (U.N. Doc. A/70/174, July 22, 2015) the UN GGE proposed 11 voluntary, non-binding norms on cooperation, mutual assistance, information exchange, respect for Human Rights, integrity of the supply chain, and critical infrastructure protection. Since then, there has been little public debate on these norms. The Call for commentary and implementation guidelines can be found here. Interested parties from academia, civil society, the corporate world and public administration are invited to contribute to this commentary. The open consultation will be conducted between 01.06.2017 – 30.09.2017. To participate, please send your questions, comments, recommendations to the Project Coordinator, Mr. Walle Bos.

4. Vacancy: Lecturer/Senior Lecturer in International Trade Law – Closing 30 July. Victoria University of Wellington’s Faculty of Law (New Zealand) have a permanent position available at Lecturer or Senior Lecturer level in international trade law. The Faculty, which is already strong in international law teaching and research, seeks a colleague who will teach in the recently established Master of International Trade, a pan-University degree that includes teachers from across the university including the Schools of Law, Economics and Finance, International Relations, and Development Studies. Victoria University of Wellington’s Faculty of Law is one of New Zealand’s oldest and most respected law schools, and is ranked 46th in the world according to the 2017 QS rankings and first in the country for research quality under the PBRF (Performance Based Research Fund) evaluation system. Applications close on 30 July 2017. The job advertisement and role descriptions can be found here.

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Non-State Actors and Non-Refoulement: The Supreme Court’s Decision in Zain Taj Dean

Published on July 28, 2017        Author: 

Lord Advocate v. Zain Taj Dean [2017] UKSC 44 concerned an extradition request, made by the Republic of China in Taiwan (‘ROC’). Dean, a British national, had lived in Taiwan for many years. In 2011, he was convicted for manslaughter, drunk-driving and leaving the scene of an accident by an ROC court. While on bail, pending an appeal, he fled to Scotland. His convictions and four-year sentence were upheld, in absentia, in 2012. The request was made pursuant to an ad hoc ROC/UK MOU, and in accordance with section 194 of the Extradition Act 2003. The Edinburgh District Court ruled that Dean could be extradited but the Scottish Appeal Court disagreed. The Supreme Court had to decide whether Dean’s extradition, to serve out the remainder of his sentence in Taipei prison, would violate Article 3 of the ECHR.

As the greatest risk of harm emanated from other prisoners – rather than from public officials or the prison conditions themselves – the Supreme Court decided that the correct test was whether the requesting ‘State’ had offered to put in place reasonable protective measures to obviate this risk. To this end, it drew a distinction between State agents and non-State actors for this purpose despite the fact that the prison would be under the public authorities’ direct authority and control at all times. This post argues that this approach amounts to a misapplication of the Strasbourg jurisprudence, invoked by the Supreme Court, with potentially serious consequences for the interpretation of the non-refoulement principle in detention cases.   Read the rest of this entry…

 

The Treaty on the Prohibition of Nuclear Weapons

Published on July 26, 2017        Author: 

On July 7, 2017 a vote was held by a United Nations treaty conference to adopt the final text of the Treaty on the Prohibition of Nuclear Weapons (TPNW). Of the 124 states participating in the conference, 122 states voted for adoption, one state (the Netherlands) voted against adoption, and one state (Singapore) abstained. This vote brought to a successful close the second and final negotiating session for a United Nations nuclear weapons prohibition convention, the mandate for which had been given by the General Assembly in December 2016. The treaty will now be opened for signature by states on September 20, 2017, and will come into force 90 days after its 50th ratification.

The TPNW provides for a complete ban on development, possession, and use of nuclear weapons by its parties. It is difficult to overstate the significance of the TPNW within the framework of treaties on nuclear nonproliferation. It is the first multilateral nuclear weapons disarmament treaty to be adopted since the Treaty on the Non-proliferation of Nuclear Weapons (NPT) in 1968. So we are witnessing a generational event of significance. Read the rest of this entry…

 

The Data-Driven Future of International Law

Published on July 25, 2017        Author: , and

Data is not only fueling the economy, but has also become an increasingly important driver of empirical legal research. Three reasons are chiefly responsible for this. First, the internet, better search engines and bigger databases today put more international law data from treaties to disputes or arbitrators at a scholar’s disposal than ever before. Second, researchers are beginning to treat the primary material of law – legal texts – as data. By conceiving text as data and transforming it into numerical representation using natural language processing techniques, scholars can analyze more written material than they could ever read. Third, neighboring disciplines, including legal informatics, computer science or the digital humanities, provide international lawyers with new tools for digesting large amounts of legal data including through machine learning and artificial intelligence.

In a Special Issue for the Journal of International Economic Law we are beginning to explore this new data-driven frontier in empirical legal scholarship. We have been fortunate to assemble strong contributions that engage with major international economic law debates through a data-driven lens using state-of-the-art empirical techniques. In this blog post, we want set out the main issues that, we believe, are raised by this new frontier of empirical scholarship. Read the rest of this entry…

 
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Why the ICC won’t get it right – The Legal Nature of UN Security Council Referrals and Al-Bashir Immunities

Published on July 24, 2017        Author: 

As readers of this blog probably know, the issue of personal immunities of Sudanese President Al-Bashir is highly controversial (see here, here, here, here, here, here, here and here). In particular, previous rulings by the ICC’s Pre-Trial Chambers have been criticized for their incorrect, inadequate and/or inconsistent reasoning for concluding that personal immunities do not apply in case of Sudanese President Omar Al Bashir.

On 6 July 2017, the Pre-Trial Chamber II issued yet another set of arguments for the same conclusion (here), while Judge Marc Perrin de Brichambaut issued a minority opinion disagreeing with the majority’s reasoning (here). In essence, the PTC II, by majority, held that

because the rights and obligations as provided for in the Statute, including article 27(2), are applicable to Sudan (by imposition of the Security Council acting under Chapter VII of the UN Charter), the immunities of Omar Al-Bashir as Head of State do not bar States Parties to the Rome Statute from executing the Court’s request of his arrest and surrender (para 107)

Disagreeing with the majority decision, Judge Brichambaut found that “the current state of the law does not allow a definite answer to be reached in relation to the question of whether this resolution removes the immunities of Omar Al Bashir” (para 83). However, Judge Brichambaut finds that

The combined effect of a literal and contextual interpretation of article IV of the Genocide Convention, in conjunction with an assessment of the object and purpose of this treaty, lead to the conclusion that Omar Al-Bashir does not enjoy personal immunity, having been “charged” with genocide within the meaning of article VI of the Genocide Convention. (para 100)

In this blog post, I am not addressing the decision or the minority opinion specifically (as I am sure others will do so shortly). Rather, I wish to present a theory of the legal nature of SC referrals, without which, the ICC will not get the issues surrounding Bashir’s immunities right. Read the rest of this entry…

 
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Announcements: Chatham House Meeting on Investment Treaties; GoJIL Special Call on the One Belt – One Road Initiative 

Published on July 23, 2017        Author: 

1. Chatham House Meeting on Investment Treaties. The International Law Programme at Chatham House will be hosting a meeting on ‘Investment Treaties: A Debate over Sovereignty, Trade, Development and Human Rights’ on 11 October 2017. For further details and to enquire about registering see here.

2. GoJIL Special Call on the One Belt – One Road Initiative. The One Belt – One Road Initiative (OBOR), also known as China’s New Silk Road, includes a large variety of infrastructure programs in numerous Eurasian and African States, proposed by the People’s Republic of China. It aims to enhance connectivity and cooperation across the Eurasian continent mainly through the construction of railways, highways, ports, airports, pipelines, etc., with China in a central role. This project could massively increase Chinese influence over Eurasia, as well as provide a chance for developing countries to benefit from its economic impact. To shed light on the diverse aspects of the One Belt – One Road Initiative, we call for authors to submit papers on this topic. Submissions from an international law background as well as other disciplines such as international relations, economics, geography, etc. are welcome. Papers should not exceed 15,000 words including footnotes. Selected contributions will be published in Issue 2 of Vol. 8. Our article guidelines and further information can be found on our website. All articles must be submitted by 15 January 2018. In case of any questions feel free to contact the editors via email at info {at} gojil(.)eu.

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The Charlie Gard Case: Behind the Hyperbole

Published on July 21, 2017        Author: 

This post is intended to be both a reply to Jakob Cornides’s post on the judgment of the European Court of Human Rights (‘ECtHR’) in the case of Charlie Gard and, relatedly, to provide clarification on several points raised in that post (and pervading content elsewhere) regarding the nature of the decisions confronting both the domestic courts and the ECtHR.

There is no need to repeat the facts underpinning Charlie’s case. They have been canvassed in considerable detail in the judgments of the English High Court and the European Court of Human Rights (ECtHR). It is incontrovertible that Charlie suffers from a life-threatening illness which, at this stage, requires that he be ventilated and receive artificial nutrition and hydration to survive. The available medical evidence (which Charlie’s parents dispute) indicates that he is not responsive to his surrounds. Despite declarations being made by the High Court to the effect that maintaining life-sustaining treatment is not in Charlie’s best interests nor is proposed experimental treatment, and those declarations being upheld on appeal to the UK Supreme Court, the matter persists with experts meeting this week to discuss the medical evidence.

It is beyond the scope of this post to address each of the aspects of the reasoning (and practice) of the domestic courts and the ECtHR which Mr Cornides’s post flags as being extremely problematic in the depth they deserve. Instead, I will respond to three specific issues raised by Mr Cornides, issues which together I consider reflect a wider misunderstanding of the domestic law which has been repeated by various media outlets, and which are central to the broader discussion regarding assisted dying in the United Kingdom (particularly within the context of the European Convention on Human Rights (‘ECHR’)). Those issues are: Read the rest of this entry…

 

The Legality of the UK / Saudi Arabia Arms Trade: A Case Study

Published on July 20, 2017        Author:  and

On 10 July 2017 the UK High Court delivered its open judgment in a high-profile challenge to the UK arms exports to Saudi Arabia, brought by the Campaign Against Arms Trade. A separate closed judgment was delivered based on the confidential evidence. As readers will be aware, the case involves various domestic and international law considerations.

The primary question was whether the Secretary of State for International Trade (the Government) was legally obliged to suspend extant and cease granting new export licences to the Kingdom of Saudi Arabia. Such an obligation would stem from the requirement to deny such licences where there is “a clear risk that the arms might be used in the commission of a serious violation of International Humanitarian Law”.

This condition is contained in Criterion 2 of the Common Rules Governing the Control of Exports of Military Technology and Equipment (European Council Common Position 2008/944/CFSP, December 2008). The Government adopted much of the Common Position as Guidance under s.9 of the Export Control Act 2002 and it accordingly represents the policy that will be applied when considering the grant of export licences. The Consolidated Criteria are thus intended to ensure the UK’s compliance with the UN Arms Trade Treaty (ATT), and the text of Criterion 2 links to its Article 7.

This blog post sets out initial thoughts on the open judgment, specifically focusing on its approach to ‘serious violation’ and ‘clear risk’, before examining the deference granted to the executive and its implications for the fulfilment of the ATT’s overarching purpose. Ultimately unsuccessful, the claim underscores the narrow ambit of judicial review and the unwillingness of UK courts to become embroiled in the merits of certain government action. Read the rest of this entry…

 

An Appraisal of the Council of Europe’s Draft European Rules on the Conditions of Administrative Detention of Migrants

Published on July 19, 2017        Author: 

In the last decade, a growing momentum has developed to end immigration detention. This momentum has two dimensions. First, that certain migrants, such as children, should never be detained as they are in a situation of particular vulnerability. Second, that even if a migrant is not deemed to be in a situation of ‘particular vulnerability’, alternatives to detention should be preferred and detention only used as a last resort when lawful, for a legitimate purpose, necessary and proportionate. The exceptionality of immigration detention is rooted in the recognition of the harmful physical and psychological effects of the administrative detention of persons who are not accused of a crime. The adverse impact of detention is magnified when accompanied by uncertainty about when the detention might end as well as the risk of ill-treatment, discrimination and poor detention conditions.

In addition to the work of NGOs such as the International Detention Coalition, international organisations have called on states to develop alternatives to immigration detention with some producing action plans to end immigration detention. Read the rest of this entry…

 
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