Guyana v. Suriname
PCA CASES UNDER UNCLOS
Malaysia v. Singapore
Land reclamation by Singapore – ended September 1, 2005
Barbados v. Trinidad & Tobago
Maritime delimitation – ended April 11, 2006
Guyana v. Suriname
Maritime delimitation – ended September 17, 2007
Ireland v. United Kingdom (“Mox Plant Case”)
Ended June 6, 2008
Bangladesh v. India
Pending
Mauritius v. United Kingdom
Pending
UNCLOS ARTICLE 287
“[...] a State shall be free to choose [...] one or more of the following
means for the settlement of disputes [...]:
(a)
the International Tribunal for the Law of the Sea [...];
(b)
the International Court of Justice;
(c)
and arbitral tribunal constituted in accordance with
Annex VII”
GUYANA-SURINAME
GUYANA-SURINAME AWARD MAP 1
GUYANA-SURINAME AWARD MAP 2
6
GUYANA-SURINAME AWARD MAP 3
7
Place of Arbitration
ART. 12 EUROPEAN CONVENTION ON STATE
IMMUNITY
Where a Contracting State has agreed in writing to submit to
arbitration […] that State may not claim immunity from the
jurisdiction of a court of another Contracting State on the territory
or according to the law of which the arbitration has taken or will
take place in respect of any proceedings relating to:
-
the validity or interpretation of the arbitration agreement;
the arbitration procedure;
the setting aside of the award;
unless the arbitration agreement otherwise provides.
Paragraph 1 shall not apply to an arbitration agreement between
States.
ARBITRATION RULES OF THE UNITED
NATIONS COMMISSION ON INTERNATIONAL
TRADE LAW 1976
•
Article 1.2
These rules shall govern the arbitration except that where any of these Rules is in
conflict with a provision of the law applicable to the arbitration from which the
parties cannot derogate, that provision shall prevail.
•
Article 32.7
If the arbitration law of the country where the award is made requires that the
award be filed or registered by the arbitral tribunal, the tribunal shall comply with
this requirement within the period of time required by law.
State Immunity
“Although modern international law does
not require the courts of one State to
refrain from deciding a case merely
because a foreign state is an unwilling
defendant, there remains today a hard
core of situations where a foreign State is
entitled to immunity.”
-Hazel Fox QC
Appointment of Arbitrators
Article 24, 1899 Convention
Each party appoints two Arbitrators, and these together choose an Umpire.
If the votes are equal, the choice of the Umpire is entrusted to a third Power,
selected by the parties by common accord.
If an agreement is not arrived at on this subject, each party selects a different
Power, and the choice of the Umpire is made in concert by the Powers thus
selected.
Challenges
1. Arbitration Standard: Article 12 (1) UNCITRAL
Arbitration Rules 2010
Any arbitrator may be challenged if circumstances exist
that give rise to justifiable doubts as to the arbitrator’s
impartiality or independence.
1. Arbitration Standard: Article 10 (1) PCA Optional
Rules for Arbitrating Disputes Between Two States
Any arbitrator may be challenged if circumstances exist
that give rise to justifiable doubts as to the arbitrator’s
impartiality or independence.
2. International Courts’ Standard: International Court
of Justice
Article 24
1.
2.
3.
[…].
If the President considers that for some special reason one of the members of the Court
should not sit in a particular case, he shall give him notice accordingly.
If in any such case the member of the Court and the President disagree, the matter shall be
settled by the decision of the Court.
Article 16
No member of the Court may exercise any political or administrative function, or engage in
any other occupation of a professional nature.
Article 17
1.
2.
No member of the Court may act as agent, counsel, or advocate in any case.
No member may participate in the decision of any case in which he has previously taken part
as agent, counsel, or advocate for one of the parties, or as a member of a national or
international court, or of a commission of enquiry, or in any other capacity.
Challenge to Judge Elaraby
Case Concerning Legal Consequences of the
Construction of a Wall in the Occupied Palestinian
Territory (2004)
ICJ: Previous diplomatic and governmental functions do
not fall within the scope of Article 17 (2) ICJ Statute
Applicable Law
Article 38
Statute of the International Court of
Justice
1. The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing
rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as
law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a
case ex aequo et bono, if the parties agree thereto.
Article 33
Permanent Court of Arbitration
Optional Rules for Arbitrating Disputes between two States
1. The arbitral tribunal shall apply the law chosen by the parties, or in the
absence of an agreement, shall decide such disputes in accordance with
international law by applying:
(a) International conventions, whether general or particular, establishing
rules expressly recognized by the contesting States;
(b) International custom, as evidence of a general practice accepted as law;
(c) The general principles of law recognized by civilized nations;
(d) Judicial and arbitral decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the
determination of rules of law.
2. This provision shall not prejudice the power of the arbitral tribunal to decide a
case ex aequo et bono, if the parties agree thereto.
“Arbitral awards may not serve as a source of law but in
accordance with Article 38 (d) of the Statutes may serve
as subsidiary means for the determination of rules of
law”.
Gilbert Guillaume, “Can Arbitral Awards Constitute a Source of International Law under Article 38
of the ICJ Statute?” in Precedent in International Arbitration, IAI Series on International Arbitration
No. 5, at 105 (Y. Banifatemi ed., Juris Publishing, 2008)
“And so we find that even judgments of the ICJ do not, as such,
create binding jurisprudence, but only a “subsidiary means” to
determining the norms of international law. International arbitral
awards, it would seem, are of an equal – and equally limited –
dignity, as the functional if not terminological equivalent of “judicial
decisions.” And in many cases, depending on the composition of
the tribunal, they are also exceptionally well-considered
pronouncements of “the most highly qualified publicists” (assisted,
one might add, by detailed and skilled legal argument).”
Jan Paulsson, “International Arbitration and the Generation of Legal
Norms”, Transnat’l Disp. MGMT 3(5), 2006.
UNITED STATES OF AMERICA v. THE NETHERLANDS
THE ISLAND OF PALMAS CASE (OR MIANGAS)
Croatia – Slovenia Arbitration Agreement
4 November 2009
Article 4: Applicable Law
The Arbitral Tribunal shall apply
(a) the rules and principles of international law for the determinations referred
to in Article 3 (1) (a);
(b) international law equity and the principle of good neighbourly relations in
order to achieve a fair and just result by taking into account all relevant
circumstances for the determinations referred to in Article 3 (1) (b) and (c).
Enforcement of Award
Binding nature of arbitral award
In the Treaty or compromis
• In the Treaty:
– Annex VII arbitration under UNCLOS
• Article 11, UNLCOS: “The award shall be final and without
appeal, unless the parties to the dispute have agreed in
advance to an appellate procedure. It shall be complied with
by the parties to the dispute.”
• In a compromis:
– Arbitration between Croatia and Slovenia
• Article 7(2), Arbitration Agreement: “The award of the Arbitral
Tribunal shall be binding on the Parties and shall constitute a
definitive settlement of a dispute”
Annulment of Award
Forum?
1. ICSID
2. National Courts
3. International Court of Justice
1. Article 52 (1) ICSID
Either party may request annulment of the award […] on
one or more of the following grounds:
(a) that the Tribunal was not properly constituted
(b) that the Tribunal has manifestly exceeded its
powers;
(c) that there was corruption on the part of a member of
the Tribunal;
(d) that there has been a serious departure from a
fundamental rule of procedure; or
(e) that the award has failed to state the reasons on
which it is based.
3. International Court of Justice
a)
-
-
Case Concerning the Arbitral Award Made by
the King of Spain on 23 December 1906
[Honduras v. Nicaragua] (1960)
Validity of award by King of Spain concerning
determination of border between Honduras and
Nicaragua
Alleged excess of mandate for not complying with
the Gámez-Bonilla Treaty
ICJ decision:
- No appeal, no substantive review
- No excess, decision based on historical and
legal considerations and legitimate interpretation
of Treaty
b) Case Concerning the Arbitral Award of 31 July
1989 [Guinea-Bissau v. Senegal] (1991)
- Alleged non-compliance by the tribunal with
provisions of the arbitration agreement
- ICJ: only if “manifest breach of the competence
conferred [...] by the Arbitration Agreement, either by
deciding in excess of, or by failing to exercise, [...]
jurisdiction“
- No review of possible interpretations of provisions of
arbitration agreement and consideration of most
preferable interpretation