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A problem that arises from time to time in international arbitration proceedings is how an arbitral tribunal is to deal with the evidence of a non-appearing witness. The applicable rules of arbitration typically confirm that the tribunal has the authority to determine (e.g.) the “admissibility, relevance, materiality and weight of the evidence offered,” but they rarely go any further than this. The purpose of this article is to seek to provide guidance to tribunals by reviewing the available arbitral practice. This reveals that there are circumstances in which tribunals have adopted broadly consistent approaches to the status of the non-appearing witness's written testimony (although this does not appear to extend to the treatment of a non-appearing expert's evidence), and that tribunals have generally not distinguished between the existence of a valid reason for a witness's failure to appear, or of exceptional circumstances which would warrant the witness's evidence being admitted. In addition, tribunals appear to be reluctant to place much weight on a non-appearing witness's written evidence unless it is corroborated by the testimony of other witnesses or documentary evidence, and they are also reluctant to draw adverse inferences from a witness's non-appearance.

The main purpose of this article is to assess the practice of ICSID in the process of registration of arbitration requests and to provide a practical review of the main case-related function of the Secretary-General. Until recently, Article 36(3) of the ICSID Convention had been relatively uncontroversial. However, some critics have argued that it is becoming more difficult to persuade the Secretary-General to register a request for arbitration than it is to persuade an arbitral tribunal to exercise jurisdiction over a claim, and have noted that this is “troubling, given that there is no appeal open to a putative claimant should the Secretary-General refuse to register a request for arbitration.” Others have harshly criticized the Centre for declining to refuse the registration of certain claims. In light of this debate, the Centre’s renewed emphasis on timeliness in the registration process and the adoption of the new Rule 41(5), it is appropriate to consider the purpose and operation of the Secretary-General’s screening power. This evaluative process is complex, given that the Centre publishes only limited information about its decisions to refuse to register requests for arbitration. However, in this article we have considered all the examples reported by ICSID staff where claims were found to be “manifestly outside the jurisdiction of the Centre”. Of the 13 occasions on which the Secretary-General has refused to register a request for arbitration, this article covers eight such instances, while excluding (at least) two known instances where the requesting parties apparently expected the refusal, so that they could set in motion another procedure for the settlement of the dispute.

In the relatively short time since the Kyoto Protocol’s entry into force, many types of disputes have arisen which have resulted in the commencement of a variety of dispute settlement proceedings. In addition to the international adjudicatory bodies charged with deciding disputes arising under the Kyoto regime, domestic courts and tribunals have also found themselves seized of such litigation. The purpose of this article is to survey the complex terrain of climate change litigation, and review the experience that States and non-State entities have had to date with the settlement of disputes arising under, and out of, the Kyoto Protocol. These include inter-State disputes, mixed disputes and private disputes. We have reasonably good knowledge of the international and mixed disputes that have arisen, but in contrast, comparatively little is known about the number of private disputes that have occurred, although the complexity and novelty of transactions under the Kyoto Protocol’s flexibility mechanisms, combined with fact that such transactions are subject to national regulation and international oversight, means that such disputes are likely to arise. In sum, experience to date indicates that the many methods of settling the range of disputes are being used effectively, and it is important for the future of the climate change regime that this multi-layered approach to dispute settlement is maintained.

AFTER MANY years of uncertainty, the Kyoto Protocol finally entered into force on 16 February 2005.1 In one sense, this day marked the culmination of a long process in the international community's efforts to combat climate change.2 In another sense, the entry into force of the Kyoto Protocol represents the beginning of a new era, for much work remains to be done by the international community to ensure that the commitments entered into under the Kyoto Protocol are implemented. The Kyoto Protocol aims to combat the problems connected with climate change by introducing quantified limitations on emissions of greenhouse gases – which are defined as including carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulphur hexafluoride – for the states parties listed in Annex I of the Framework Convention on Climate Change.3 These states, which comprise developed countries and countries with emerging market economies, have an obligation under Article 3 of the Kyoto Protocol to limit their greenhouse gas emissions to the levels stipulated in Annex B.4 Crucially, Article 3 further provides that the states parties can meet their quantitative emission limitations either ‘individually or jointly’.5 The Kyoto Protocol elaborates three methods by which states parties can comply with their emission limitations ‘jointly’. These are collectively known as the ‘Kyoto flexibility mechanisms’, and they consist of ‘joint implementation’, the ‘clean development mechanism’, and ‘emissions trading’. Contemporaneously with the entry into force of the Kyoto Protocol, efforts are being made to implement the rights and obligations contained in the Protocol into domestic legislation.6 Accordingly, the quantified emission limitation and reduction obligations are being passed on to private entities operating within each state party. These private entities are also permitted to take advantage of the flexibility mechanisms in order to facilitate their compliance with relevant domestic …