Jessup 2011

March 30, 2010

ILSA has announced that the 2011 Jessup Compromis will address the legality of the use of unmanned drones and international anti-corruption law.

First things first – I think there has to be a special prize to one fellow judge who remarked that after a year of peaceful coexistence, Jessup would return to its root in war and chaos. I think unmanned drones and bribery fit right into that.

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Yukos v Russia – Banality After the Hype

February 8, 2010

Early last week, the interim awards on Jurisdiction and Admissibility in Hulley Enterprises Limited (Cyprus) v. The Russian Federation ,Yukos Universal Limited (Isle of Man) v. The Russian Federation,  and Veteran Petroleum Limited (Cyprus) v. The Russian Federation were published unilaterally by Sherman & Sterling.

Collectively, these three decisions might be thought of as Yukos v Russia –  all three claimants were shells designed to hold parts of the shareholding of Yukos for the managment and staff of Yukos and all claimed for losses suffered as a result of the bankruptcy of Yukos in 2008 that was said to be  caused for reasons ultimately attributable to the Russian Federation.

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Perenco v. Ecuador: Consensual Arbitrator Challenges

January 29, 2010

The Kluwer Arbitration Blog summarises why consensually circumventing the ICSID Convention procedure in Article 57 & Article 58 to disqualify an arbitrator by an external mechanism (through the Permanent Court of Arbitration in this case) is incorrect.

It is clear that the challenge to Judge Brower was not a proper one under the ICSID Convention. From an ICSID perspective, the decision of the PCA is a nullity. Indeed, the fact that Judge Brower had to resign voluntarily from his appointment as arbitrator after the PCA’s decision was rendered speaks volumes as to the validity of such proceedings. In fact, to the extent that Judge Brower had refused to resign, it is difficult to see how Ecuador would have had any remedy other than to start again and to propose his disqualification in accordance with Articles 57 and 58 of the Convention, which in turn would have provided a higher hurdle to overcome.

via Kluwer Arbitration Blog » Blog Archive » Perenco v. Ecuador: Was there a valid arbitrator challenge.

I do think there should be some reservation in the analysis adopted, especially the presumption of mandatory application of all provisions of the ICSID Convention ousting any scope for the consent of the parties in the conduct of the reference, which does seem to underlie parts of the analysis.

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The Inherent Jurisdiction of ICSID Tribunals: Rompetrol v Romania

January 21, 2010

The Rompetrol Group N.V. v. Romania, ICSID Case No. ARB/06/3 (Netherlands/Romania BIT) – Decision on the Participation of Counsel

The tribunal in Rompetrol v Romania was faced with a rather unique application. The Respondent  sought an order  requiring  the Claimant to remove their from the case and to forbid him from participating  any further in any way.

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The Inherent Jurisdiction of ICSID Annulment Committees: RSM v Grenada

January 19, 2010

RSM Production Corporation v. Grenada, ICSID Case No. ARB/05/14

In RSM v Grenada the claimant  applied to the Annulment Committee for it to make a finding of fact after the original arbitral tribunal was functus officio. RSM relied on the inherent jurisdiction of the Annulment Committee to support the application.

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Russia Approves Protocol 14 to the ECHR

January 15, 2010

The lower house of the Duma has approved Protocol 14 to the European Convention on Human Rights.  Russia has been the holdout country in ratifying Protocol 14, which the other 46 participating nations had all approved by 2006.

Protocol 14 is largely a procedural reform to the speed up the court’s work by reducing the number of judges required to make major decisions.  The Strasbourg Court has been the subject of complaints due to the extremely large backlog of cases, especially against Russia.  

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The Human Rights Committee’s Views in Sayadi v. Belgium: A Missed Opportunity

December 29, 2009

Abstract: The article provides a critical review of the Human Rights Committee’s views in Sayadi v. Belgium, a case dealing with United Nations Security Council (UNSC) terrorist blacklists. The case raised many complex issues of international law, most notably the question whether UNSC resolutions can prevail over human rights treaties by virtue of Art. 103 of the UN Charter. This issue – one of truly fundamental importance – has cropped up in several important recent cases which either addressed it or avoided it, including Kadi before the courts of the European Union, Al-Jedda before the UK House of Lords, and Behrami before the European Court of Human Rights. Regrettably, the Committee’s decision did not do justice to the complexity and the gravity of the matters raised before it, as it failed to tackle the norm conflict issue head on and ignored the Charter’s supremacy clause altogether. Such an approach advances neither the cause of human rights, nor the coherence of international law as a legal system.

Review: This is an interesting little article that builds out the centrality of Art 103 of the UN Charter and its increasing importance in a world where the UNSC is adopting a policing function rather than a tribunal of last resort. A raft of cases have dealt with the conflict between UN Charter obligations and IHR instruments in different ways. This article is a good overview of the case law if you’re not familiar with this particular area although Sayadi v Belgium itself contributes nothing to the jurisprudence (which is the author’s main criticism of it).

Details: Marko Milanović (Belgrade Centre for Human Rights), The Human Rights Committee’s Views in Sayadi v. Belgium: A Missed Opportunity (Goettingen Journal of International Law, Vol. 1, No. 3, p. 519, 2009).