Jurisdiction

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

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)

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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The Netherlands’ inter-State application against Russia six years after MH 17

Malaysian Airlines flight MH 17 from Amsterdam to Kuala Lumpur was shot down in July 2014 over the territory of Eastern Ukraine, killing 298 persons. On 10 July 2020, almost exactly six years later, the Dutch government lodged an inter-State application against Russia before the European Court of Human Rights (ECtHR, the Court) under Article 33 ECHR,…

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‘Victim of its commitment … You, passerby, a tear to the proclaimed virtue’: Should the epitaph of the African Court on Human and Peoples’ Rights be prepared?

In a letter dated 21 April, the Government of Benin informed the African Union of its decision to withdraw the declaration made under Article 34(6) of the Ouagadougou Protocol establishing the African Court on Human and Peoples’ Rights. As the Court recalled in its first judgment, direct referral by an individual or an NGO is subject…

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Public Interest Litigation Before Domestic Courts in The Netherlands on the Basis of International Law: Article 3:305a Dutch Civil Code

In recent years, the domestic courts in The Hague (Netherlands) have produced a series of judgments on matters of global concern, adjudicated on the basis of international law. All of these judgments have immediately been heralded as “a new classic” or “the most important court decision […] in the world…

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