Permanent Court of Arbitration

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Immunities and Compromissory Clauses: Making Sense of Enrica Lexie (Part II)

August 27, 2020

In Part I of this post, we discussed how the Arbitral Tribunal, in its recently-released award in the Enrica Lexie case, approached the question of incidental jurisdiction over questions of immunity. While the Tribunal’s jurisdiction, under Article 288 UNCLOS, was limited to ‘dispute[s] concerning the interpretation or application of th[e] [Law of the Sea] Convention’ (which does not explicitly regulate questions of immunity), the Tribunal felt that it had to address the matter: As the real dispute was whether Italy and India could exercise jurisdiction over the Enrica Lexie incident, immunity ‘necessarily arises as an incidental question in the application of the Convention’ (para 809). In Part II of the post, we situate the Tribunal‘s approach and compare it to that of the ICJ, which in two recent cases has had to grapple with very similar issues. Compare & Contrast: Jurisdiction over Questions of Immunity in Recent ICJ Jurisprudence The Enrica Lexie Tribunal’s decision concerning its incidental jurisdiction over the immunity issue has not escaped commentators (see notably…

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Immunities and Compromissory Clauses: Making Sense of Enrica Lexie (Part I)

August 27, 2020

Small(ish) disputes can make for significant holdings. From Nottebohm to Lotus to AAPL v Sri Lanka, the list of relatively limited incidents prompting far-reaching judicial and arbitral pronouncements is long. We may now have to add Enrica Lexie to it. The PCA’s award…

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Why Arbitrate Business and Human Rights Disputes? Public Consultation Period Open for the Draft Hague Rules on Business and Human Rights Arbitration

July 12, 2019

In June 2019, the Draft Hague Rules on Business and Human Rights Arbitration (hereafter, "Draft BHR Arbitration Rules") was released for global online public consultation, with the consultation period set to end by 25 August 2019.  Judge Bruno Simma chairs the global Drafting Team that has collaborated in developing the draft rules, since the Drafting Team…

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From the Indigenous Peoples’ Environmental Catastrophe in the Amazon to the Investors’ Dispute on Denial of Justice: The Chevron v. Ecuador August 2018 PCA Arbitral Award and the Dearth of International Environmental Remedies for Private Victims

September 13, 2018

The recent 30 August 2018 Chevron v. Ecuador arbitral award is yet another example of the ongoing asymmetries of protection in the much-beleaguered investor-State dispute settlement system, in which States have generously afforded protections to foreign investors to bring suits directly against States, without creating parallel avenues for affected local communities and/or indigenous peoples to initiate arbitration proceedings directly…

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Crimea Investment Disputes: are jurisdictional hurdles being overcome too easily?

May 9, 2018

In February-March 2014, Crimea experienced what is here neutrally referred to as a ‘change of effective sovereign’ (as conceded by Ukraine itself). Subsequent events have given rise to at least nine investment claims by Ukrainian nationals against Russia in connection with their investments in Crimea made prior to the ‘change of effective sovereign’. Substantively, all cases pivot on…

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