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Foreign control and ICSID jurisdiction on Energy Charter Treaty Claims of Local Companies: The Eskosol Case

Published on June 12, 2017        Author: 

The ICSID tribunal in Eskosol in liquidazione v. Italy rejected Italy’s Rule 41.5 application to have the claim thrown out for being “manifestly without legal merit.” I offer a summary and some reflections on two interesting aspects on the tribunal’s jurisdiction.

Background

The claimant challenged, under the Energy Charter Treaty (ECT), Italy’s 2011 regulatory rollback regarding a feed-in tariffs (FIT) scheme (check this report by the claimant’s lawyers). Investment connoisseurs are familiar with the topic, litigated in Charanne, Eiser and other exhausted or pending cases, some confidential. The claimant is an Italian company, Eskosol in liquidazione (bankruptcy receivership). Eskosol claims to have invested in a 120-megawatt photovoltaic energy project, expecting to benefit from the 20-year FIT scheme. At the time of the rollback, the Belgian company Blusun held 80% of Eskosol. Eskosol alleged that this change rendered its business unviable. It abandoned its projects, became insolvent and entered bankruptcy receivership in November 2013. In December 2015, the tribunal-appointed receiver brought the ICSID claim, on the company’s behalf.

Blusun, the Belgian company controlling 80% of Eskosol, had brought ICSID proceedings  in 2014, under the ECT, against the same measures. Eskosol attempted to file a non-party submission in that arbitration, asserting that Blusun had usurped its claim and sought damages owed to Eskosol alone. Blusun’s abusive claim would prejudice the rights of Eskosol, its creditors and its minority (non-Belgian) shareholders, since Blusun showed no intention to channel any potential gain to Eskosol. Eskosol’s request was denied. Blusun’s claim failed on the merits in December 2016, and in May 2017 Blusun launched annulment proceedings.

The Decision 

In Eskosol, Italy raised four Rule 41.5 objections for expedite consideration (i.e., invoking glaring legal impediments and not hinging on disputed facts [36; 98]; see Álvarez y Marín [95]). The tribunal considered Eskosol’s claim not “manifestly” meritless. This conclusion does not prejudge the defendant’s full preliminary objections, which the tribunal shall examine, jointly with the merits, in the next phase. Read the rest of this entry…

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Announcements: The Law and Policy of Brexit; Human Rights Research Students’ Conference; PluriCourts Centre of Excellence Workshop Series; CfA Postdoctoral Researcher – The Paths of International Law; CfP The Use of Law by Social Movements and Civil Society

Published on June 11, 2017        Author: 

1. The Law and Policy of Brexit. Maastricht University Brussels Campus: 30 June 2017. This conference will include the following panels: (i) the future of EU-27; (ii) future EU-UK relations; (iii) Northern Ireland and Scotland after Brexit. Confirmed speakers: Prof Kenneth Armstrong (Cambridge), Dr Lorand Bartels (Cambridge), Prof Monica Claes (Maastricht), Prof Sionaidh Douglass-Scott (QMUL), Prof Christina Eckes (Amsterdam), Dr Veronika Fikfak (Cambridge), Prof Christopher McCrudden (Queens Belfast), Prof Hildegard Schneider (Maastricht), Prof Jure Vidmar (Maastricht) and Prof Jan Wouters (KU Leuven). The venue for this conference is Maastricht University Brussels Campus, Avenue de l’Armée 10, 1040 Brussels, Belgium, and it will be held on 30 June 2017 from 10.30-17.30 Attendance is free of charge, but please register here.

2. Human Rights Research Students’ Conference. This Postgraduate Research Students’ conference is 10 July at the University of Essex, 9.00 – 18.􏰆00. It is aimed at students working within the broad interdisciplinary field of human rights and social justice. The conference aims to stimulate research on contemporary human rights issues, problems, challenges and policies, and to facilitate the dissemination of such research. We encourage submissions on the following themes, as well as submissions of a general nature: Human Rights in a Post-Brexit United Kingdom; Human Rights in the Times of Austerity and Backlash; Issues Relating to International Humanitarian Law and Human Rights Law; and Epistemological and Methodological Challenges in Cross-, Trans- and Inter-disciplinary Human Rights Research. Please send abstracts of up to 350 words to HRC {at} sas.ac(.)uk by 15 June 2017. For more information, see here.

3. PluriCourts Centre of Excellence at Oslo University Workshop Series on “Identity on the International Bench”. The PluriCourts Centre of Excellence at Oslo University is organizing a workshop series on “Identity on the International Bench”. On 11 and 12 January 2018, the first workshop will focus on Gender on the International Bench will take place in The Hague. Currently women judges make up on average 17% of international courts and tribunals, demonstrating significant disparity regarding the participation of women on the bench across different international legal regimes. Such lack of representativeness can affect the legitimacy of the international dispute settlement process and its outcomes. The aim of this workshop is to analyse causes and effects of the dearth of women judges, and the resulting implications for the legitimacy of international adjudicatory institutions and the judicial decisions rendered. This will include an examination of international rules and practices concerning appointment and composition of the bench, judicial behaviour linked to the absence or presence of female judges, and potential effects on compliance with judicial awards. Please find the Call for Papers here. Proposals should be submitted via freya.baetens {at} jus.uio(.)no and c.m.bailliet {at} jus.uio(.)no by 31 July 2017. Read the rest of this entry…

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Announcements: Lectureship Oxford University; Post-Doctoral Researcher Graduate Institute Geneva

Published on June 10, 2017        Author: 

1. The Faculty of Law of the University of Oxford invites applications for a fixed-term Departmental Lecturership in Law, from 1 October 2017 for one year.  The postholder will be required to pursue internationally leading research in Public International Law; to teach and supervise undergraduate and graduate students for the Faculty and St Peter’s College; to provide administrative and pastoral support; and to examine. Applicants must have a proven record of high quality research and publication in Public International Law commensurate with their career experience; relevant teaching experience; a doctorate in Public International Law, or at least have submitted a completed doctoral dissertation for examination, or have attained a comparable level through their publications; demonstrate the capacity to pursue an independent scholarly and research agenda; and have the ability and willingness to undertake pastoral responsibilities associated with undergraduate and graduate teaching, and administrative duties as required.  To apply for this role and to download the further details see here (Vacancy ID: 129045). Applications, written work and references must be submitted before noon on Friday 30 June 2017.  Interviews will be held in Oxford in early July 2017.

2. The Graduate Institute for International and Development Studies in Geneva is recruiting a postdoctoral researcher for the ERC-funded research project “The Paths of International Law: Stability and Change in the International Legal Order”. The successful applicant will work closely with the principal investigator, Professor Nico Krisch, in the realization of the project, through both theoretical work and case studies in different issue areas of international law. Candidates should be enthusiastic about work in an interdisciplinary research team; they should have an outstanding PhD in international law or international relations and be familiar with the respectively other field. The position is open from 1 October 2017. Recruitment will be for two years, with a possibility of extension up to five years; the gross starting salary will be CHF92,500pa. Further details on the project, the position and the application process can be found here.

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First Global Treaty Against Illegal, Unreported, and Unregulated (IUU) Fishing Entry into Force

Published on June 9, 2017        Author: 

While the world reacted to the US withdrawal from the Paris Agreement on June 2, the first meeting of the parties to a landmark global marine environmental agreement was held three days later with the FAO Agreement on Port State Measures to Prevent, Deter, and Eliminate Illegal, Unreported, and Unregulated (IUU) Fishing [hereafter, “Port State Measures Agreement or PSMA”].  This first global treaty to combat IUU fishing recognizes that “measures to combat IUU fishing should build on the primary responsibility of flag States and use all available jurisdiction in accordance with international law, including port State measures, coastal State measures, market related measures, and measures to ensure that nationals do not support or engage in IUU fishing” (PSMA, Preamble, paragraph 3), and is designed “to prevent, deter and eliminate IUU fishing through the implementation of effective port State measures, and thereby to ensure the long-term conservation and sustainable use of living marine resources and marine ecosystems.” (PSMA, Article 2).

IUU fishing endangers food security, community livelihoods, and marine environments in many developing countries around the world, particularly in hotspots in West Africa and the Asia-Pacific, causing annual estimated losses worldwide at around USD $23.5 billion to developed and developing coastal States, including the United States and the European Union. IUU fishing directly impoverishes local fishing communities, which in West Africa, for example, is estimated at around USD$ 1.3 billion a year. IUU fishing also exacerbates the problem of unsustainable fishing in the world, where 53% of the world’s fisheries are already fully exploited, and a further 32% are overexploited and depleted. The Food and Agriculture Organization (FAO) and the UN Environmental Programme (UNEP) cautioned in 2009 that the destructive impacts of IUU fishing include, among others, the “extinction (or high risk of extinction of the resource and/or the productive ecosystem and its biodiversity.” (p. 7 of FAO/UNEP Expert Report). The prevalence of IUU fishing in the world is illustrated in the map below (source here), where regional hotspots for IUU fishing are in the Eastern Pacific, the Northwest Pacific, West Africa, Southeast Asia, and Pacific Islands:

To date, not all States implicated in the key IUU hotspots are  parties to the Port State Measures Agreement (PSMA), which to date are only Australia, Barbados, Chile, Costa Rica, Cuba, Dominica, the European Union (as a member organization), Gabon, Guinea, Guyana, Iceland, Mauritius, Mozambique, Myanmar, New Zealand, Norway, Oman, Palau, Republic of Korea, Saint Kitts and Nevis, Seychelles, Somalia, South Africa, Sri Lanka, Sudan, Thailand, Tonga, the United States of America, Uruguay, and Vanuatu.  This post discusses some of the key features of the PSMA, which focus on harmonizing standards for States’ domestic control of their ports, and the coordinated enforcement of international rules to prevent and penalize IUU fishing.

Read the rest of this entry…

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40th Anniversary of the Additional Protocols of 1977 of the Geneva Conventions of 1949

Published on June 8, 2017        Author: 

On 8 June 1977, at the invitation of Switzerland, plenipotentiaries of more than one hundred States gathered at the “Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts” to finalize and adopt Additional Protocols I and II (APs I and II) to the 1949 Geneva Conventions (GCs). Together with the GCs, APs I and II form the core of international humanitarian law.

Their adoption forty years ago marks a milestone in the regulation of armed conflicts. By developing and supplementing the GCs, AP I and II significantly improved the legal protection of victims of armed conflicts. A key achievement of the APs I and II was codifying and developing rules on the conduct of hostilities and those related to the protection of civilians from the effect of hostilities. In treaty law, these rules had remained untouched since the Hague Conventions of 1907. Another crucial enhancement lies in the extension of the protection granted under the GCs to all medical personnel, units and means of transport, whether civilian or military. Read the rest of this entry…

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Self-Appointment in International Arbitration

Published on June 7, 2017        Author: 

At first glance, paragraph 14 of the UNCLOS Annex VII tribunal’s Order on Provisional Measures in Enrica Lexie (Italy v. India) appears quite mundane. It states in relevant part that “on 30 September 2015, the President of ITLOS appointed … H.E. Judge Vladimir Golitsyn as arbitrator and President of the Arbitral Tribunal” (para. 14). It becomes much more interesting, however, when one realizes that on 30 September 2015, the President of ITLOS was none other than Judge Golitsyn himself.

A similar phenomenon appears to have occurred in another high-profile UNCLOS Annex VII arbitration: Ukraine v. Russia. On 23 December 2016, the Ministry of Foreign Affairs of Ukraine revealed that Judge Boualem Bouguetaia would be a member of the tribunal, “express[ing] its gratitude to the Vice-President of [ITLOS] for rapid formation of the tribunal”. The Ministry failed to note, however, that on 23 December 2016 the Vice-President of ITLOS was none other than Judge Bouguetaia himself.

If it is true that Judges Golitsyn and Bouguetaia appointed themselves to the tribunals, they should not necessarily be reprimanded. After all, these self-appointments would be in accordance with Annex VII of UNCLOS. Article 3 of Annex VII provides that the parties shall appoint three of the five members of the tribunal by agreement, but if they are unable to agree, the appointments shall be made by the President of ITLOS or, if he or she is a national of one of the parties to the dispute, the next most senior member of ITLOS. In Enrica Lexie, this power fell on President Golitsyn. And in Ukraine v. Russia, since President Golitsyn is a national of Russia, this power fell on Vice-President Bouguetaia. Nothing in Article 3 prohibits the appointing authority from appointing him or herself to the arbitral tribunal.

Three Concerns

Nevertheless, an appointing authority’s self-appointment as an arbitrator, as a general matter in international arbitration, is subject to three potential concerns. Read the rest of this entry…

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Back to Old Tricks? Italian Responsibility for Returning People to Libya

Published on June 6, 2017        Author: 

On 10/11 May 2017 various news outlets reported a maritime operation by the Libyan authorities, in coordination with the Italian Search and Rescue Authority, in which 500 individuals were intercepted in international waters and returned to Libya. This operation amounted to refoulment in breach of customary international law and several treaties (including the Geneva Refugee Convention and the European Convention on Human Rights), and an internationally wrongful act is one for which Italy bears international legal responsibility.

According to reports, the migrant and refugee boat called the Italian Maritime Rescue Coordination Centre (MRCCC) whilst it was still in Libyan territorial waters. MRCC contacted both the Libyan coastguard and an NGO vessel (Sea Watch-2) with the latter sighting the boat after it had left Libyan waters and was in international waters. During preparations for the rescue, the NGO boat was informed by the Italian authorities that the Libyan coastguard boat which was approaching had “on scene command” of the rescue operation. Attempts by the NGO vessel to contact the Libyan authorities were not picked up. The Coastguard proceeded instead to cut the way of the Sea Watch 2 at high speed and chase its rescue boat. It then stopped the refugees and migrant boat. Reports indicate that the Libyan coastguard captain threatened the refugees and migrants with a gun and then proceeded to take over the migrant boat. Read the rest of this entry…

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Reflections on the US withdrawal from the Paris Climate Change Agreement

Published on June 5, 2017        Author: 

Ending months of fevered speculation, President Donald Trump fulfilled his campaign promise and announced US withdrawal from the 2015 Paris Agreement last week. He did so because in his opinion the Paris Agreement inflicts ‘severe energy restrictions’ on the United States and ‘punishes’ the United States ‘while imposing no meaningful obligations on the world’s leading polluters.’ This post seeks to examine the merits of the US’ stated rationale for withdrawing from the Paris Agreement, and then offers some reflections on next steps for the US in the international climate change regime.

How Valid are Trump’s Criticisms?

President Trump’s remarks reveal a fundamentally flawed understanding of the Paris Agreement. First, his remarks suggest that the Paris Agreement is a prescriptive instrument that ‘inflicts’ restrictions and ‘imposes’ obligations on states. This is not the case. Read the rest of this entry…

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Announcements: International and Comparative Disaster Law Essay Contest; CfP Access and Exclusion in Global Governance; CILS Conference on State Boundary Affairs

Published on June 3, 2017        Author: 

1. International and Comparative Disaster Law Essay Contest. The second annual “International and Comparative Disaster Law Essay Contest” has been launched and the call for abstract is out (see here for awards, potential topics and criteria). This contest is co-sponsored by the International Federation of Red Cross and Red Crescent Societies (IFRC), the American Society of International Law Disaster Law Interest Group (ASIL DLIG), the Jean Monnet Module on “International and EU Law” of Roma Tre University and the International Disaster Law Project. Essays may examine any issue related to law and disasters from an international or a comparative law perspective. It is open to current and recently graduated students (including PhD and master programs). Abstracts (not exceeding 500 words) should be received no later than 7 July. Authors of the most promising abstracts are requested to submit full essays by 31 October 2017. Awards: A monetary prize (Euro 500); Annual membership ASIL; Winner paper and papers with “honourable mention” published as a “Working Paper” of the IFRC’s Disaster Law Programme. Authors will retain copyright of their papers. Full details here.

2. Call for Papers: Access and Exclusion in Global Governance. IBEI and EsadeGeo will hold the fifth Barcelona Workshop on Global Governance on the topic of “Access and Exclusion in Global Governance” on 11 – 12 January 2018. Speakers include Deborah Avant (Denver), Eyal Benvenisti (Cambridge/Tel Aviv), B.S. Chimni (Delhi), Anna Leander (Copenhagen), and Joost Pauwelyn (Geneva). Details on the workshop can be found here. We invite abstract proposals from all disciplinary perspectives; they should be submitted to info {at} bcnwgg(.)net by 30 June 2017.

3. CILS Conference on State Boundary Affairs. The Center for International Law Studies of Universitas Indonesia, in collaboration with Faculty of Law Tanjungpura University, are pleased to announce the 8th CILS Conference on State Boundary Affairs. The Conference will be located at the Faculty of Law, Universitas Tanjungpura, Pontianak, Indonesia on 2-3 October 2017. See here for more details. The CILS invites all legal scholars and professionals to submit abstracts and papers over current developments and legal issues in international law within the scope of the following sub-themes: (1) Land Boundary; (2) Maritime Boundary; (3) Border Security; (4) Cross-Border Trade, and (5) General Topic.
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Macron’s Threat of Reprisals and the Jus ad Bellum

Published on June 2, 2017        Author: 

A few days ago, French President Macron reportedly said that the use of chemical weapons in Syria would cross a “red line” for France and result in reprisals. Macron’s statement comes less than two months after the United States conducted airstrikes against Syria for its use of chemical weapons. The vast majority of states that spoke about the U.S. operation supported or were non-committal about it. Very few states condemned it as unlawful. By contrast, most commentators contended that the operation was unlawful. (See the blog posts collected here.) The operation was inconsistent with the longstanding interpretation of Article 2(4) of the UN Charter and not covered by either of the Charter exceptions. Moreover, though there is an ongoing debate about whether the jus ad bellum contains a third exception for humanitarian interventions, the majority view is that it does not. The reason for this view is that, even when states (as a group) appear to condone particular operations that might be characterized as unilateral humanitarian interventions, states decline to articulate the opinio juris that is necessary to establish a new, generally applicable exception to Article 2(4). And in any event, the U.S. operation in April seemed more like a reprisal than like a humanitarian intervention.

So, what should we make of Macron’s statement? When news of it broke, I tweeted this comment:

Several people objected to my tweet. I am continuing the conversation here because I thought it might be of interest to a broader audience, and because its implications go far beyond Macron’s statement. It has to do with how we understand and assess the jus ad bellum. Read the rest of this entry…

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