Two weeks in Review, 16 January – 29 January

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In his post, ‘The Law of Immunity and the Prosecution of the Head of State of the Russian Federation for International Crimes in the War against Ukraine’, Miguel Lemos explores the possibilities of prosecuting the persons who are (allegedly) most responsible for such crimes, particularly, the head of state of the Russian Federation and commander-in-chief of its armed forces, Vladimir Putin. Lemos analyses the contextual distinctiveness of the two main decisions in this context, the ICJ in the Arrest Warrant case, and the Judgment by the International Military Tribunal given in the aftermath of the Second World War. He concludes that the national courts of Ukraine may legitimately prosecute Vladimir Putin for the crimes perpetrated “in connection” with the conflict in Ukraine, since, from a legal standpoint, Ukraine’s courts have the strongest claim to being the most appropriate forum for the initiation of such proceedings. Nevertheless, Lemos argues that from a political perspective, it might be wiser not to undertake such prosecution in the domestic courts of Ukraine, but rather to transfer such power to international courts or tribunals.

See his full analysis here

Toni Marzal examines the latest decision in the Rockhopper v Italy award, issued by the  ICSID tribunal in the dispute between Rockhopper, a British oil and gas company, and the Italian Republic. The decision noted that Rockhopper had met all conditions set by Italian law for the license, and yet the Italian republic denied the license to exploit an offshore oilfield, due to legislation banning oil production concessions within a certain distance from the coastline. Therefore the tribunal awarded Rockhopper €185 million in compensation (over €240 million with interest). Marzal argues that the expulsion of environmental considerations from the reasoning of the Rockhopper award has the effect of making climate change interventions considerably more costly, by increasing the scope of regulations considered to be expropriatory, and by inflating the amounts that will need to be paid in compensation. More, he argues that beyond its regulatory effects, the overlooked environmental considerations were indeed pertinent, to both the existence of an expropriation and the quantum assessment. Marzal concludes that

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