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Home International Tribunals Archive for category "Permanent Court of Arbitration" (Page 2)

Ukraine vs. Russia in International Courts and Tribunals

Published on March 9, 2016        Author: 
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In early January 2016, Ukraine affirmed its intention to bring a claim against Russia before the ICJ under the International Convention for the Suppression of the Financing of Terrorism (‘Financing of Terrorism Convention’). Further announcements were made in late January and February 2016 as to both an additional claim in the ICJ under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), and a claim under the United Nations Convention on the Law of the Sea (UNCLOS). This post provides a brief overview of pending and prospective cases originating from the conflict between Russia and Ukraine.

Cases pending before international court and tribunals

Ukraine is currently seeking to challenge Russia’s actions on its territory in the European Court of Human Rights and the International Criminal Court. Three inter-State cases initiated by Ukraine concerning Russia’s actions in Crimea and Eastern Ukraine are currently pending before the ECtHR (the first inter-State case by Ukraine against Russia was discussed here). In September 2015, Ukraine also lodged a Declaration under Article 12(3) of the Rome Statute of the International Criminal Court recognising its jurisdiction with respect to the acts committed on its territory since 20 February 2014. It is true that acceptance of the jurisdiction of the ICC by Ukraine may not necessarily lead to the prosecution of Russian citizens fighting in the Eastern Regions. It is, nonetheless, another avenue used by Ukraine to put the conflict between the two States before international judges.

Russia’s actions in Crimea and Eastern Ukraine have also resulted in individual cases brought against Russia at the international level under international human rights law and international foreign investment law. As of October 2015, more than 1,400 applications seemingly related to the events in Crimea or Eastern Ukraine, lodged against both Russia and Ukraine or against one of those States, are pending before the ECtHR.

Several cases were initiated before the PCA against Russia under UNCITRAL rules apparently concerning investments located in Crimea. One of these cases, for instance, concerned interference with property situated in Crimea. Incidentally, in reply to the commencement of the arbitral proceedings in this case, Russia sent a letter stating that it did not recognise the jurisdiction of the arbitral tribunal. Despite Russia’s request not to regard the letter as consent to participation in arbitral proceedings, Read the rest of this entry…

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The Jurisdictional Rubicon: Scrutinizing China’s Position Paper on the South China Sea Arbitration – Part II

Published on January 30, 2015        Author: 
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Yesterday I set out the background to the Position Paper issued by the China, on December 7, 2014, “on the Matter of Jurisdiction in the South China Sea Arbitration initiated by the Republic of the Philippines” [hereafter, “China Position Paper”] and examined China’s first objection to the jurisdiction of the arbitral tribunal. In this post, I consider the other Chinese objections.

Second Chinese Objection: Did the Philippines violate the duty to negotiate in regard to the subject-matter of this dispute, when it initiated the arbitration?

The China Position Paper effectively maintains that the ‘exclusive’ dispute settlement mechanism between the Philippines and China on the South China Sea is friendly consultations and negotiations (China Position Paper, paras. 30-39). This position would appear tenable, if one were to tacitly accept the characterization of the arbitration’s subject-matter as one involving claims for maritime delimitation, rather than merely the “interpretation or application of UNCLOS” to the maritime limits drawn in the 9-dash line map as well as to the submerged geographic features described therein.

Notwithstanding the disputed characterization of the arbitration’s subject-matter, however, it is difficult to see where a duty to exclusively pursue negotiations or friendly consultations exists. Ordinary textual examination of the bilateral instruments and multilateral instrument (e.g. the 2002 ASEAN Declaration on the Code of Conduct of Parties in the South China Sea) referenced in the China Position Paper, appears to militate against the notion of an exclusive choice of dispute settlement through ‘friendly consultations and negotiations’. Nothing in the language of the instruments therein definitively rules out compulsory arbitration under Part XV of UNCLOS – which as UNCLOS Part XV also explicitly stresses, is likewise a peaceful means of dispute settlement in international law. Read the rest of this entry…

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The Jurisdictional Rubicon: Scrutinizing China’s Position Paper on the South China Sea Arbitration – Part I

Published on January 29, 2015        Author: 
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On December 7, 2014, China officially published its Position Paper “on the Matter of Jurisdiction in the South China Sea Arbitration initiated by the Republic of the Philippines” [hereafter, “China Position Paper”]. The China Position Paper was issued two days after the US State Department issued its December 5, 2014 Limits in the Seas No. 143 Report, “China: Maritime Claims in the South China Sea”, authored by its Office of Ocean and Polar Affairs and Bureau of Oceans and International Environmental and Scientific Affairs [hereafter, “US State Department Report”]. The US State Department Report concludes, in particular, that: “unless China clarifies that the dashed-line claim reflects only a claim to islands within that line and any maritime zones that are generated from those land features in accordance with the international law of the sea, as reflected in the [UN Convention on the Law of the Sea/UNCLOS], its dashed-line claim does not accord with the international law of the sea.” (US State Department Report, p. 24). China’s 7 December 2014 Position Paper provides its first official, public, and certainly most authoritative clarification of its arguments and claims to date, and certainly introduces a significant dimension to the ongoing arbitration proceedings. Vietnam is reported to have filed a (hitherto-undisclosed) statement to the Annex VII arbitral tribunal, asking the latter to take into account its legal interests while also refuting China’s claims. Although the China Position Paper explicitly states that it should “not be regarded as China’s acceptance of or participation in [the] arbitration” (China Position Paper, para. 2), the Annex VII tribunal is arguably not prevented from taking cognizance of the statements therein as part of China’s jurisdictional objections in this dispute. China itself circulated the Position Paper to members of the arbitral tribunal, albeit stressing that it should not be construed as acceptance of, or participation in, the arbitration (Permanent Court of Arbitration 17 December 2014 Press Release). In its 22 November 2013 Provisional Measures Order in the Arctic Sunrise case (Netherlands v. Russian Federation) – a case where Russia explicitly refused to appear in the proceedings – the International Tribunal for the Law of the Sea (ITLOS) took motu proprio judicial notice of two Notes Verbale by Russia to the Netherlands, as evidence of the nature and content of Russia’s jurisdictional challenge to the existence of a dispute between the parties (Arctic Sunrise Order, paras. 64-65, 68). Read the rest of this entry…

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International Arbitration: Heating Up or Under Pressure?

Published on March 11, 2014        Author: 
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Dapo recently posted on this blog about the rise of inter-State cases before the PCA and predicted that “the current rise of inter-state arbitration will endure for some time“. Many readers will presumably be quite happy about the trend described: binding dispute resolution, if it happens, tends to make us international lawyers happy after all – so the more (cases) the merrier?

Interestingly, there is one branch of international law in which the debate currently seems take a different turn; in which the belief in binding dispute resolution is under attack – and in which many commentators, incl. many with an internationalist mindset and a keen desire for a rights-based global order, strongly feel that we have too much international arbitration. This is the field of investment law, in which the concept of investment arbitration has come under fire. Of course, this is an important debate for those interested in investment arbitration — academics, practitioners, companies, civil society, etc.  But, as importantly (if not more), it is also a debate that general international lawyers interested in dispute settlement should follow, and which I feel would benefit considerably if they did not leave it to the (pro- and anti-) investment communities. So this post is an attempt to introduce it to a wider audience and to encourage a wider debate. Within investment law, the debate has been going on for a while. However, over the past few months, it has suddenly heated up – and it has heated up in Europe, where the EU is formulating its investment policy. And this fresh start has opened up interesting spaces for debate. So what is it all about? Read the rest of this entry…

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Timor-Leste v Australia: Provisional Observations

Published on March 6, 2014        Author: 
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As has already been reported in this forum, earlier this week the International Court of Justice issued an order indicating provisional measures in Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia). The documents and data in question relate to ongoing arbitral proceedings between Timor-Leste and Australia. The documents were taken from the Canberra-based offices of a legal counsel to Timor-Leste by the Australian Secret Intelligence Organisation (ASIO) under a warrant issued by the Attorney-General of Australia.

On the whole, the order does not appear terribly exciting, but it does raise three issues worthy of some attention.

The first relates to the role of the Attorney-General. The Court, by twelve votes to four, ordered Australia to keep the documents it had seized under seal and not permit them to be used to the detriment of Timor-Leste while proceedings before the ICJ were under way. The Court indicated these measures despite the written undertakings of the Attorney as to the measures the Australian government was taking to safeguard the confidentiality of the documents. (To point out the obvious, this is the very same Attorney-General who authorised the seizure of the documents in the first place.)

While the majority of the ICJ deemed the Attorney-General’s undertakings insufficient, the Court had no difficulty in viewing them as binding under international law. The Court referred in this respect to a statement of the Agent of Australia that “the Attorney-General … [had] the actual and ostensible authority to bind Australia as a matter of both Australian and international law”. In other words, Australia conceded that, as a matter of international law, it was bound by the undertakings of its Attorney-General. Read the rest of this entry…

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The Peace Palace Heats Up Again: But Is Inter-State Arbitration Overtaking the ICJ?

Published on February 17, 2014        Author: 
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Since the establishment, after World War I, of the Permanent Court of International Justice (PCIJ), judicial settlement by standing international courts has been more popular than inter-State arbitration as a means of settling inter-state disputes (except perhaps in the trade context where the GATT/WTO panels can be characterised as a form of arbitration). However, it may be that inter-state arbitration, is now eclipsing, or, is perhaps now as popular as, judicial settlement, even by the International Court of Justice.  A look at the docket of the ICJ as it currently stands, and at the list of inter-state arbitrations currently being administered by the Permanent Court of Arbitration is very revealing. The PCA now has about as many active inter-state disputes as the ICJ. As far as I can tell, this is the first time that this has happened in the almost century long history of the World Court (the PCIJ and the ICJ).

In 1991, the American international lawyer,  Keith Highet,  who was counsel in many cases before the International Court of Justice, wrote a piece in the American Journal of International Law (Vol. 85, No. 4 (Oct., 1991), pp. 646-654) entitled “The Peace Palace Heats Up: The World Court in Business Again?”. Highet was reporting the dramatic rise in the number of cases submitted to the ICJ in the two years preceding his piece. He began by noting the gloomy forecasts of commentators about the ICJ, in the 1980s, particularly after the Nicaragua case, when it appeared that the Court had lost the confidence of some states. Predicitions about the Court’s demise turned out, happily, to be way of the mark. In just a few years after Nicaragua, Highet was able to write: “the Court in the Hague is busier than it has ever been in its entire history.” (p. 646). He concluded by noting that the Court “has become a ‘hot court’   . . . It is positioned, for the first time in its collective seventy-year history, to become the great international judicial institution that its friends and supporters always knew it could be.”(p. 654)

Today, those same words can be repeated. The Peace Palace again houses a “hot court”. However, this time it is the ICJ’s “relative” and “house-mate”, the Permanent Court of Arbitration (the original inhabitant of the Peace Palace), that is busier than ever and at its peak in terms of the number of cases it is handling. Read the rest of this entry…

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Espionage & Good Faith in Treaty Negotiations: East Timor v Australia

Published on January 20, 2014        Author: 
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In April last year, East Timor instituted arbitral proceedings against Australia at the Permanent Court of Arbitration (‘PCA’) in relation to a dispute arising under the 2006 Treaty on Certain Maritime Arrangements in the Timor Sea (‘CMATS Treaty’). Timor Leste (as East Timor is formally known) alleges that the CMATS Treaty is invalid because Australia engaged in espionage in the course of negotiating the Treaty. As noted by Matthew Happold in an earlier EJIL:talk! post, Timor Leste has also initiated proceedings against Australia the International Court of Justice in respect of the seizure of documents by Australian authorities from the offices of the Australian lawyer who is acting for Timor Leste in the PCA arbitration. Indeed, the ICJ is holding hearings, this week, on Timor Leste’s request for provisional measures that will require Australia to give up to the custody of the Court all documents and data seized by Australia pending disposal of the ICJ case and to give assurances that ‘it will not intercept or cause or request the interception of communications between Timor-Leste and its legal advisers’.

The details of the arbitration before the PCA have not been made public, so it is difficult to form any clear assessment of the precise international law issues that arise.  However, from public statements and media reports, it seems that Timor Leste is alleging that the CMATS is invalid because “Australia did not conduct the CMATS negotiations in 2004 in good faith by engaging in espionage”.  According to the lawyer for Timor Leste, during the negotiations for the CMATS Treaty, Australian intelligence services inserted listening devices into the wall of Timor-Leste’s negotiating room under the guise of an Australian aid program concerning renovation and construction of cabinet offices. The lawyer for Timor-Leste has likened the behaviour of the Australian intelligence services to insider trading. The PCA case is particularly interesting as it might be the first case in which a state seeks invalidity of a treaty on the ground that the other treaty party acted fraudulently in the negotiation of the treaty. The case raises the question whether states not only have an obligation to negotiate treaties in good faith but whether breach of the obligation to negotiate in good faith amounts to a ground for invalidity of a treaty.

Before turning to the grounds for invalidity, it is first worth noting that one of the interesting aspects of these proceedings is that they were even commenced at all. Read the rest of this entry…

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