Search

Judge Crawford’s contributions to public international law were immense and covered a vast field, including State responsibility, international criminal law, State immunity, international legal personality, the law of the sea, and the protection of human rights. The focus of this essay is on Judge Crawford’s work in the field of international investment law, to which he made substantial contributions as a scholar, as an arbitrator, and as counsel, at a time when the field of international investment law was in a relatively embryonic stage of development. The contribution focusses in particular on the award of the tribunal constituted under Chapter 11 of the North American Free Trade Agreement (‘NAFTA’) in Waste Management v Mexico (No 2) (‘Waste Management (No 2)’), in which Judge Crawford was appointed by the ICSID Secretary-General as the presiding arbitrator. The award contains an important dictum on the content of the minimum standard of treatment under Article 1105 of NAFTA, which has been highly persuasive within the NAFTA context, in other investment treaty claims, and in the subsequent treaty practice of States. The Waste Management (No 2) tribunal brought much-needed rigour to a field in which ad hoc tribunals were adopting broad interpretations of treaty obligations and imposing onerous obligations on States.

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.

Inconsistency in legal interpretation is among the most salient problems in investor-State dispute settlement (ISDS) and it is one of the key issues being addressed by the reform efforts in the United Nations Commission on International Trade Law (UNCITRAL) Working Group III. While some degree of interpretive inconsistency is endemic to any legal order, systemic inconsistency tends to undermine the basic purposes of the investment treaty regime – namely protecting and promoting foreign direct investment through predictable international legal rules and institutions. This article seeks to parse the problem of inconsistency at a more granular level, in order to distinguish between types of norms where a degree of inconsistency is (relatively) manageable and (potentially) tolerable, and those where inconsistency is unacceptable. We argue that it is with regard to structural ‘rules of the game’ where inconsistency is most destructive.

Although the New York Convention’s application has been reasonably successful and positive, the Australian jurisdiction offers an example of how the interpretation and the application of the Convention can be disrupted by even minor modifications in the transcription of the Convention into domestic legislation. This chapter is also remarkable for its thorough and extended discussion of cases discussing complex questions of interpretation, as well as for several examples of enforcement decisions where partial enforcement is privileged over a complete refusal of recognition and enforcement in order, to pursue the pro-enforcement spirit of the Convention.

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.

Rule 41(5) of the ICSID Arbitration Rules essentially provides that an ICSID tribunal may dismiss a proceeding summarily if the respondent files an objection within 30 days of the constitution of the tribunal that the claim is “manifestly without legal merit”. In the five years since the introduction of the Rule in April 2006, four ICSID tribunals have considered the provision, with two decisions being handed down in December 2010. In this article, the authors describe the cases decided by these tribunals, and examine the way in which they have interpreted and applied Rule 41(5). The authors’ analysis highlights the large measure of consistency in the way that ICSID tribunals are handling objections under this provision, and sets out a useful and timely guide to counsel and arbitrators on the use of this procedure.

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 …

The jurisdiction of the International Tribunal for the Law of the Sea to hear applications for the prompt release of vessels and crew was recently invoked by the Russian Federation against Australia in the Volga case. In determining whether the bonding arrangements set by Australia were ‘reasonable’ under Article 73(2) of UNCLOS, the Tribunal clarified several issues regarding prompt release applications, and most significantly, held that non-financial conditions and ‘good behaviour bonds’ were not permissible. In rendering its decision, the Tribunal adhered to the ‘guiding criterion’ of balancing the interests of the flag state and coastal state in determining the reasonableness of the bond. It is submitted that this test is inappropriate, and that this decision will create difficulties for coastal states seeking to control illegal fishing.

Since 1998, a war has ravaged one of Africa's largest countries, the Democratic Republic of the Congo (‘DRC’). Africa's ‘Great War’ is said to have involved nine national armies and an unknown number of militia groups, and has reportedly claimed more lives than any other in the last four years. Estimates of the death toll range from 3 to 3.5 million. On 28 May 2002, the DRC instituted proceedings before the International Court of Justice (‘the Court’) against Rwanda alleging ‘massive, serious and flagrant violations of human rights and international humanitarian law’, and requested certain provisional measures.2 On 10 July 2002, the Court rejected the DRC’s request for provisional measures, as it considered that it did not have prima facie jurisdiction to determine the merits of the case.3 However, the Court also rejected Rwanda's request that the case be removed from the list, as the Court considered that its lack of jurisdiction was not ‘manifest’.4 This note reviews the history of the conflict and the litigation, before considering the DRC's request for provisional measures and the grounds of jurisdiction upon which it sought to rely. The Order is then analysed, and this note concludes that the Court was right to reject the DRC's request, but it should have gone further and removed the case from the list.

This National Report for Australia responds to a detailed questionnaire on “Recognition and Enforcement of Foreign Arbitral Awards” prepared by the General Reporter, Professor George Bermann, for the 19th International Congress of Comparative Law (Vienna, 20-27 July 2014). It covers implementation into Australian law of the 1958 New York Convention, enforcement by Australian courts of international arbitration agreements (pursuant to Article II of the Convention), grounds for refusing enforcement (Article V), and procedural issues. By way of general assessment, this Report concludes that overall the Australian courts’ application of the Convention by way of the International Arbitration Act (IAA) has been reasonably successful and positive, especially in recent years. However, some judgments have been out of step with widely-accepted principles. Sometimes this problem has been exacerbated by poor legislative drafting. Broader difficulties also remain with the recent 2010 amendments to the IAA. It would be helpful to undertake some further amendments, and indeed to reform the Convention itself, in several respects. There also needs to be a more consistently internationalist interpretation and application of the Convention by both Australian courts and advocates arguing IAA cases.

The decision of the International Court of Justice in LaGrand that its provisional measures under Article 41 of the ICJ Statute were binding (Judgment of 27 June 2001) resolved a question which had occupied international lawyers for many years. The question of the legal effect of provisional measures granted by the European Court of Human Rights (ECHR) recently arose in Mamatkulov and Abdurasulovic v. Turkey (Judgment of 6 February 2003). Like the International Court, the ECHR has the power to “indicate interim measures, but this power is not derived from a provision in its constitutive instrument, the European Convention for the Protection of Human Rights and Fundamental Freedoms, but rather from Rule 39 of the Rules of Court. On the basis of earlier jurisprudence (Cruz Varas v. Sweden, Judgment of 20 March 1991, Series A, No. 201; Conka v. Belgium, Decision of 13 March 2001), it had been thought that interim measures indicated by the ECHR were not mandatory, but in Mamatkulov, the ECHR effectively reversed this position and held that its interim measures had binding force.

International investment law is in a state of evolution. With the advent of investor-State arbitration in the latter part of the twentieth century - and its exponential growth over the last decade - new levels of complexity, uncertainty and substantive expansion are emerging. States continue to enter into investment treaties and the number of investor-State arbitration claims continues to rise. At the same time, the various participants in investment treaty arbitration are faced with increasingly difficult issues concerning the fundamental character of the investment treaty regime, the role of the actors in international investment law, the new significance of procedure in the settlement of disputes and the emergence of cross-cutting issues. Bringing together established scholars and practitioners, as well as members of a new generation of international investment lawyers, this volume examines these developments and provides a balanced assessment of the challenges being faced in the field.

There are at least two ways in which legal scholarship might be approached. One might ask what the law on a particular subject is. This question invites doctrinal inquiry through an examination of authoritative sources internal to a legal system. Alternately, one might ask whether the law on a particular subject matter is desirable or just. This normative inquiry typically begins with a characterisation of what the law on a given subject is, but its primary objective is the evaluation of law by external, normative criteria. Arbitral tribunals charged with interpreting and applying international investment treaties (IITs) continue to grapple with legal concepts such as ‘fair and equitable treatment’ and ‘indirect expropriation’. Different tribunals have interpreted common treaty language in distinct ways; for example, in an earlier work I argue that tribunals have used six, identifiably distinct approaches to distinguish indirect expropriation from legitimate non-compensable regulation. It would be useful to be able to examine which interpretations were more desirable – in a normative sense – and which were inadvisable. This chapter presents a framework for normative evaluation of interpretations of the substantive protections of foreign investment contained in IITs.

This chapter covers the proliferation of international courts and tribunals, and the perceived problem of fragmentation of international law. It first describes the proliferation of international judicial bodies. This has seen the creation of more than a dozen new international adjudicatory bodies in the past two decades. It then proposes possible reasons for the growth in the number of international courts and tribunals. The principal reasons include the erosion of the traditional reluctance to submit disputes to third-party adjudication, and the effects of globalization. It then turns to the effects of proliferation, and explains that it can cause increased jurisdictional competition (overlapping jurisdictions) among international courts and tribunals, and also the emergence of doctrinal inconsistencies in international law. This is particularly so, in light of international jurisprudence which suggests that international courts are ‘self-contained systems’. It then briefly reviews the International Law Commission's work on fragmentation.

This chapter examines in detail two post-adjudication powers of international courts and tribunals: the power of interpretation and the power of revision. It first explains the post-adjudication role of international courts, which is limited due to the principle of the finality of adjudication. A variety of procedures have been developed, but this chapter focuses on the powers of interpretation and revision. The chapter then analyses the source of these powers, and it is argued that even if these powers are not expressly conferred in an international court's constitutive instruments, they can be exercised as inherent powers. It then turns to a number of issues which are considered by international courts in exercising the powers of interpretation and revision: the jurisdiction of the international court hearing the request; the composition of the international court; the scope of the powers of interpretation and revision; and other conditions. The chapter concludes that these powers are generally exercised in a consistent manner by different international courts.

This chapter considers whether international courts have common approaches to the granting of remedies. It first examines the source of the power to award remedies. It then explains the obligation in international law to make ‘full reparation’, and briefly details the three different forms of reparation (restitution, compensation, and satisfaction). It notes that there is some disagreement on whether each of these is appropriate as a judicial remedy in all cases. The next section cites examples where the various forms of reparation have been awarded in particular disputes, and includes a discussion of the existence of mandatory or consequential orders as a possible remedy. Finally, the chapter examines the availability of remedies in WTO dispute settlement, and notes that although this is largely a lex specialis, there is evidence that the law of reparation has some relevance.

This chapter examines the power of international courts to grant provisional measures and analyses whether there is an emerging common practice. It first describes the purpose of provisional measures in international adjudication. It then considers the source of the power to grant provisional measures. Many international courts have an express power in their constitutive instruments, but several international courts have exercised the power as an inherent power. The chapter then examines the features common in the exercise of the power by a range of international courts — consideration of the question of jurisdiction over the merits of the dispute; the circumstances relevant to the granting of provisional measures; and the binding quality of provisional measures. Finally, the chapter considers the power of international courts to grant provisional measures ultra petita and proprio motu. It concludes that there is substantial commonality in the practice of international courts concerning provisional measures.

This chapter suggests reasons for the emergence of the common law of international adjudication. The factors that are relevant include the similar drafting of the constitutive instruments of international courts, the ability of international courts to reach similar interpretations of their constitutive instruments, and the operation of the doctrine of precedent. Further reasons include the existence of inherent powers, the similar functions of international courts, and also the fact that there is a relatively small group of international lawyers that appear before and sit on international courts. There are, however, limitations to the development of a common law of international adjudication, such as the particular drafting of constitutive instruments, the specific functions of different international courts, the different relationship between each international court and the parties before it, and also that it may not be desirable from a normative viewpoint for international courts to adopt common approaches in all cases, for specific procedures may be desirable in certain circumstances.

This chapter examines whether commonalities exist in the rules of evidence applied by different international courts and tribunals. It begins by considering the sources of rules of evidence in international law. These are the constitutive instruments of international courts, rules of procedure, general principles of law, and inherent powers. It then selects a number of evidential issues, being the admission of evidence, the burden of proof, and the standard of proof, and reviews whether international courts adopt similar approaches. The chapter then turns to an examination of the evidence-gathering powers of international courts, such as taking judicial notice of facts, ordering the production of evidence, making site visits, and ordering expert reports. The practice of international courts generally indicates a common approach to these issues, although the application of the rules is not completely consistent.

This chapter argues that the emergence of a common law of international adjudication has significant practical and theoretical implications. It then considers whether the common law of international adjudication can inform the response of international courts to issues which arise as a result of proliferation. In this regard, the chapter examines whether international courts have a power to dismiss proceedings summarily, either for manifest lack of jurisdiction, or abuse of process; the power to suspend proceedings; and the power to enjoin parties from pursuing parallel proceedings. The chapter then turns to the theoretical implications of the common law of international adjudication, and suggests that international courts do not regard themselves as ‘self-contained systems’, but rather as forming part of a community whose procedures and remedies have much in common. This evidences the existence of systemic features in international adjudication.