Saturday, December 22, 2007

WTO Arbitrator's Decision: United States - Measures affecting the cross-border supply of gambling and betting services

Yesterday, an Article 22.6 Arbitrator issued its decision in United States - Measures affecting the cross-border supply of gambling and betting services (DS285). Antigua and Barbuda brought the original complaint. The full Decision can be found here. A summary of the case can be found here. A discussion of the Decision can be found at the International Economic Law and Policy Blog.

Barcelo: Anti-Foreign-Suit Injunctions to Enforce Arbitration Agreements

John James Barcelo III (Cornell Univ. - Law) has posted Anti-Foreign-Suit Injunctions to Enforce Arbitration Agreements. Here's the abstract:
Despite agreeing that courts should exercise great caution concerning anti-foreign-suit injunctions, the author argues in favor of such a remedy in a particular setting where enforcing an agreement to arbitrate is at stake. That setting occurs when the parties to an arbitration agreement place the arbitration seat in a particular country (F1) and also choose that country's law to govern the arbitration agreement (its existence, validity and scope). Such an agreement should be understood as choosing F1 courts to resolve any differences over the "ordinary arbitrability" of the dispute (existence, validity,and scope of the arbitration clause). Thus, if one of the parties tries to litigate the dispute in a different country (F2), that party acts in breach of the arbitration agreement and may be enjoined from doing so. The author argues that parties wanting a strongly enforceable arbitration clause will favor this remedy and will want to place the arbitration seat in, and choose the law of, a country that will provide it. The author would make an exception where F2 may have a strong public policy reason to treat the subject matter as not capable of settlement by arbitration - a "public policy" challenge to arbitrability, as opposed to a "garden variety" existence, validity, or scope challenge to arbitrability. In a "public policy" case an F1 court should not issue an anti-foreign-suit injunction. The author discusses two recent court decisions in the UK (Through Transport and West Tankers) that exemplify the approach advocated.

Friday, December 21, 2007

Boas: The Milošević Trial: Lessons for the Conduct of Complex International Proceedings

Gideon Boas (Monash Univ. - Law) has published The Milošević Trial: Lessons for the Conduct of Complex International Criminal Proceedings (Cambridge Univ. Press 2007). Here's the abstract:

When Slobodan Milošević died in the United Nations Detention Unit in The Hague over four years after his trial had begun, many feared - and some hoped - that international criminal justice was experiencing some sort of death itself. Yet the Milošević case, the first trial of a former head of state by a truly international criminal tribunal and one of the most complex and lengthy war crimes trials in history, stands for much in the development and the future of international criminal justice, both politically and legally. This book, written by the senior legal advisor working for the Trial Chamber, analyses the trial to determine what lessons can be learnt that will improve the fair and expeditious conduct of complex international criminal proceedings brought against former heads of state and senior political and military officials, and develops reforms for the future achievement of best practice in international criminal law.

SFRC: Report on the Law of the Sea Convention Now Available

The Senate Foreign Relations Committee's Report on the United Nations Convention on the Law of the Sea (together with minority views), which was issued on Wednesday, is now available here.

New Issue: Archiv des Völkerrechts

The latest issue of Archiv des Völkerrechts (Vol. 45, no. 3, September 2007) is out. Contents include:
  • Andreas Fischer-Lescano, Subjektivierung völkerrechtlicher Sekundärregeln. Die Individualrechte auf Entschädigung und effektiven Rechtsschutz bei Verletzungen des Völkerrechts
  • Oliver Diggelmann, Staatsverbrechen und internationale Justiz. Zur Einlösbarkeit der Erwartungen an internationale Straftribunale
  • Christoph Ashauer, Die Menschenrechte im Notstand. Eine Untersuchung zu den Voraussetzungen der Derogation nach Artikel 15 EMRK unter besonderer Berücksichtigung der Figur des überpositiven Notstandes
  • Gernot Biehler, Property Rights for Individuals under International Humanitarian Law

New Issue: American Review of International Arbitration

The latest issue of the American Review of International Arbitration (Vol. 17, no. 1, 2006) is out. Contents include:
  • Leon E. Trakman, "Legal Traditions" and International Commercial Arbitration
  • Anna Conley, A New World of Discovery: The Ramifications of Two Recent Federal Courts' Decisions Granting Judicial Assistance to Arbitral Tribunals Pursuant to 28 U.S.C. § 1782
  • Stephan Wilske, Laurence Shore & Jan-Michael Ahrens, The "Group Of Companies Doctrine" - Where Is It Heading?
  • Peter Ashford, Documentary Discovery and International Commercial Arbitration
  • J.P. Duffy, Arbitral & Judicial Decisions Opposing Confirmation of International Arbitration Awards: Is It Worth The Sanctions?

Thursday, December 20, 2007

WTO Panel Report: United States - Final Anti-dumping Measures on Stainless Steel from Mexico

Today, a Panel established by the WTO's Dispute Settlement Body issued its Report on the case United States - Final Anti-dumping Measures on Stainless Steel from Mexico (DS344). Mexico brought the complaint. The full Report can be found here. An excerpt containing just the Panel's conclusions and recommendations can be found here. A summary of the case can be found here.

SFRC: Report on the Law of the Sea Convention

Yesterday, December 19, the Senate Foreign Relations Committee submitted its Report (Ex. Rept. 110-9; not yet available online) on the United Nations Convention on the Law of the Sea (Treaty Doc. 103-39). The Committee favorably reported the Convention on October 31, following hearings on September 27 and October 4.

New Issue: International Legal Materials

The latest issue of International Legal Materials (Vol. 46, no. 4, July 2007) is out. Contents include:
  • The Hague Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary, with introductory note by Charles Mooney
  • Luxembourg Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Railway Rolling Stock, with introductory note by Harold S. Burman
  • International Court of Justice: Case Concerning Ahmadou Sadio Diallo, with introductory note by Viren Mascarenhas
  • United States Supreme Court: Permanent Mission of India to the United Nations v. New York, with introductory note by Bruce Zagaris
  • European Court of Human Rights: Behrami v. France, with introductory note by Stephanie Farrior
  • Supreme Court of Canada: R. v. Hope, with introductory note by David P. Stewart
  • International Centre for the Settlement of Investment Disputes: Waguih Georg Siag v. The Arab Republic of Egypt, with introductory note by Charles Own Verrill
  • South Pacific Fisheries Management Organization, with introductory note by Holly Koehler

Symposium: Judgment at Nuremberg

The latest issue of the Washington University Global Studies Law Review (Vol. 6, no. 3, 2007) contains the proceedings of the symposium "Judgment at Nuremberg," held at the Washington University in St. Louis School of Law, September 30-October 1, 2006. Contents include:

Wednesday, December 19, 2007

WTO Compliance Panel Report: United States - Subsidies on Upland Cotton

Yesterday, a Compliance Panel released its Report on the case United States - Subsidies on upland cotton (DS267). Brazil brought the complaint. The full Report can be found here. An excerpt containing just the Panel's findings and conclusions can be found here. A summary of the case can be found here.

ASIL's International Law 2008

The American Society of International Law recently unveiled International Law 2008, a "web-based initiative to gather and disseminate information to the public and the news media about where the U.S. presidential candidates stand on important international legal issues." The website explains that the project includes three components: (1) a collection of candidates' policy statements and speeches on topics related to international law; (2) candidate surveys, designed to provide an opportunity for 2008 U.S. presidential candidates to elaborate on their views of the role of international law in U.S. foreign policy; and (3) "ASIL Leaders' Views," featuring answers from members of the ASIL Executive Council to the question "What is the most important international law-related issue facing the next U.S. administration and why?" Thus far, Hillary Clinton, John Edwards, Dennis Kucinich, and Barack Obama have submitted responses to the candidate surveys. ASIL's International Law 2008 complements well the Campaign 2008 website of the Council on Foreign Relations, which focuses on the foreign policy positions of the presidential candidates.

Joachim, Reinalda, & Verbeek: International Organizations and Implementation: Enforcers, Managers, Authorities?

Jutta Joachim (Univ. of Hannover - Institute of Political Science), Bob Reinalda (Radboud University Nijmegen - International Relations), & Bertjan Verbeek (Radboud University Nijmegen - International Relations) have published International Organizations and Implementation: Enforcers, Managers, Authorities? (Routledge 2008). Contents include:
  • Part 1: Introduction
  • International Organizations and Implementation
  • Part 2: The Institutional Resources of International Organizations
  • Miriam Hartlapp, Two Variations on a Theme?
  • Thomas Conzelmann, Beyond the Carrot and the Stick
  • J.C. Sharman, International Organizations and the Implementation of New Financial Regulations by Blacklisting
  • Steffen Bauer, Bureaucratic Authority and the Implementation of International Treaties
  • George Christou & Seamus Simpson, International Policy Implementation through Gate Keeping
  • Kerstin Martens & Carolin Balzer, All Bark and No Bite?
  • Part 3: Domestic-Level Factors, International Organizations and Implementation
  • Anna van der Vleuten, Pincers and Self-Interest
  • Esther Versluis, ‘The Achilles’ Heel of European Regulation’
  • Dora Piroska, The Implementation of the Basel Capital Accord in Hungary and Slovenia
  • Pat Gray, International Financial Institutions and Russia’s Civil Service Reform
  • David J. Galbreath, International Organizations, Party Politics and the Promotion of Minority Rights in the Baltic States
  • Part 4: Conclusion
  • Enforcers, Managers, Authorities?

Tuesday, December 18, 2007

van der Wilt: Halilović on Appeal: The Intricate Concept of "Effective Control"

Harmen van der Wilt (Univ. of Amsterdam - Law) has posted Halilović on Appeal: The Intricate Concept of "Effective Control", a commentary on the ICTY Appeals Chamber's judgment in the Halilović case. Here's the abstract:
The commentary addresses pertinent questions raised in the recent Appeals Judgement, which resulted in the acquittal of Halilović, pertaining to the doctrine of superior criminal responsibility. It analyses the nature of the required 'superior-subordinate (hierarchical) relationship' and the difficulties it gives rise to in determining the criminal responsibility of a de facto military commander, such as Halilović, who was the chief of the Supreme Command Staff of the Army of Bosnia and Herzegovina in 1993.

New Issue: Mealey's International Arbitration Report

The latest issue of Mealey's International Arbitration Report (Vol. 22, no. 12, December 2007) is out.

New Issue: Leiden Journal of International Law

The latest issue of the Leiden Journal of International Law (Vol. 20, no. 4, December 2007) is out. Contents include:
  • John Dugard, The Future of International Law: A Human Rights Perspective - With Some Comments on the Leiden School of International Law
  • Essays in Honour of John Dugard: The Protection of the Individual in International Law
    • Thomas Skouteris and Annemarieke Vermeer-Künzli, Editors' Introduction: John Dugard and the Protection of the Individual in International Law
    • Rosalyn Higgins, Human Rights in the International Court of Justice
    • Arnold N. Pronto, ‘Human-Rightism’ and the Development of General International Law
    • Theo van Boven, The United Nations High Commissioner for Human Rights: The History of a Contested Project
    • Antoine Buyse & Rick Lawson, State Recognition: Admission (Im)Possible
    • Larissa van den Herik, The Security Council's Targeted Sanctions Regimes: In Need of Better Protection of the Individual
    • Nico Shrijver, The UN Human Rights Council: A New ‘Society of the Committed’ or Just Old Wine in New Bottles?
    • Paul J.I.M. de Waart, Israel's Settlement-Policy Stumbling-Block in the Middle East Peace Process
    • Antonio Cassese, On Some Problematical Aspects of the Crime of Aggression
    • Claus Kress, The Crime of Aggression before the First Review of the ICC Statute
    • Niels Blokker, The Crime of Aggression and the United Nations Security Council
    • Elies van Sliedregt, International Crimes before Dutch Courts: Recent Developments
    • Zsuzsanna Deen-Racsmány, Diplomatic Protection and International Criminal Law: Can the Gap Be Bridged?
    • James L. Kateka, John Dugard's Contribution to the Topic of Diplomatic Protection
    • Paula Escarameia, Professor Dugard as an Innovator in the Work of the International Law Commission
    • Annemarieke Vermeer-Künzli, Diallo and the Draft Articles: The Application of the Draft Articles on Diplomatic Protection in the Ahmadou Sadio Diallo Case
    • Max du Plessis, Professor John Dugard: A South African Perspective
    • Jackie Dugard, Judging the Judges: Towards an Appropriate Role for the Judiciary in South Africa's Transformation
    • Curriculum Vitae and Publications of John Dugard

New Issue: Criminal Law Forum

The latest issue of Criminal Law Forum (Vol. 18, nos. 3-4, December 2007) is out. Contents include:

  • Jonathan Clough, Bridging the Theoretical Gap: The Search for a Realist Model of Corporate Criminal Liability
  • Héctor Olásolo, A Note on the Evolution of the Principle of Legality in International Criminal Law
  • Kate Warner, Mandatory Sentencing and the Role of the Academic
  • Robert J. Currie, Abducted Fugitives Before the International Criminal Court: Problems and Prospects

New Issue: International Tax Journal

The latest issue of the International Tax Journal (Vol. 33, no. 6, November-December 2007) is out. Contents include:
  • Douglas L. McHoney & J. Michael Cornett, Applying Recent Code Section 165(g)(3) Guidance in an International Context
  • Samuel Y.S. Chan & John W.S. Lee, Tax Incentives in Hong Kong for Offshore Funds and Investment Schemes

New Issue: Netherlands International Law Review

The latest issue of the Netherlands International Law Review (Vol. 54, no. 3, December 2007) is out. Contents include:
  • Ademola Abass, The United Nations, The African Union and the Darfur Crisis: Of Apology and Utopia
  • Abdul Ghafur Hamid, The Legality of Anticipatory Self-Defence in the 21st Century World Order: A Re-Appraisal

Monday, December 17, 2007

ICTR: Trial Chamber Judgment in Case Against Karera

On Friday, December 7, the ICTR Trial Chamber rendered its judgment in the case (No. ICTR-01-74) against François Karera, former Prefect of Kigali-Rural. (Press release here; judgment not yet available online.) Karera was charged with genocide, complicity in genocide, and crimes against humanity (extermination and murder) based upon his participation in the killing of Tutsis in April and May 1994. The Trial Chamber found him guilty of one count of genocide and both counts of crimes against humanity. He was acquitted on the complicity in genocide charge, which was an alternative to the genocide count. The Trial Chamber sentenced Karera to life imprisonment.

Clark: Domesticating Sole Executive Agreements

Bradford R. Clark (George Washington Univ. - Law) has published Domesticating Sole Executive Agreements (Virginia Law Review, Vol. 93, p. 1573, November 2007). Here's the abstract:

At a time when many question the wisdom and constitutionality of unchecked executive power, the Supreme Court has recently recognized virtually unlimited presidential power to make “sole executive agreements” with the force of federal law. Although such agreements with foreign nations are neither approved by the Senate as a “Treaty” nor enacted by Congress as a “Law,” the Court has asserted that they are generally “fit to preempt state law, just as treaties are.” To be sure, Presidents have long used sole executive agreements as a means of implementing their underlying constitutional and statutory authority. The Court’s novel conception of such agreements as an independent source of federal power, however, is in tension with the Supremacy Clause, which recognizes only the “Constitution,” “Laws,” and “Treaties” of the United States as the supreme law of the land. Significantly, each of these sources of law must be adopted by the Senate acting in conjunction with one or more additional actors. Allowing the President to use sole executive agreements to override preexisting legal rights circumvents the political and procedural safeguards built into the Constitution. The Court has attempted to justify its novel approach by invoking two well-known historical precedents: executive agreements settling claims by U.S. nationals against foreign sovereigns, and an executive agreement recognizing the Soviet Union and assigning its claims against U.S. nationals to the United States. Taken in historical context, however, neither precedent supports a freestanding presidential power to make sole executive agreements with the force of federal law.

Cogan: Competition and Control in International Adjudication

I have posted my essay Competition and Control in International Adjudication (Virginia Journal of International Law, forthcoming). Here's the abstract:
This Essay takes issue with the standard view among international law and international relations scholars that States have sufficient and effective tools to constrain international courts. Like international organizations generally, international courts have minds and interests of their own. As a result, they can be tempted to expand their powers beyond those provided for in their mandates or by informal expectations. At the same time, international courts are protected from external control because of the principle of judicial independence and because of structural constraints on international lawmaking and institutional reform. This combination of weak external control and imperfect self-control provides international courts with opportunities to exceed their mandates. It also makes States more likely not to consent ex ante to the jurisdiction of international courts, to withdraw from the jurisdiction of courts to which jurisdiction they had previously consented, and to disobey judicial decisions. In other words, weak judicial control mechanisms create weak dispute resolution mechanisms. This is not optimal, as the international system needs greater not fewer opportunities for peaceful dispute settlement. In order to strengthen international courts, we need to think anew about how best to maintain control over them. The answer, though, is not, as some would have it, to decrease judicial independence by increasing direct State control. Instead, this Essay argues that increasing competition among international courts will more effectively constrain international judicial power and, consequently, increase the likelihood that States will recognize and accede to international judicial authority. Competition among courts will also lead to better - and perhaps convergent - decisions. Therefore, in contrast to the received wisdom that international courts, as they proliferate, should be more respectful and deferential to each other, this Essay claims that such system-protective doctrines are counterproductive. Instead of striving for uniformity, we should accept and develop a system of competitive adjudication in international law.

New Issue: Vereinte Nationen

The latest issue of Vereinte Nationen (Vol. 55, no. 5, 2007) is out. Contents include:
  • Anja Papenfuß, Editorial: Gute Nachrichten aus New York
  • Thorsten Benner & Philipp Rotmann, Operation Blauhelmreform. Ban Ki-moons umstrittener Umbau der Hauptabteilung Friedenssicherungseinsätze
  • Waldemar Hummer & Jelka Mayr-Singer, Wider die Straflosigkeit. Das Internationale Übereinkommen zum Schutz aller Personen vor dem Verschwindenlassen
  • Anja Titze, Die Vereinten Nationen und indigene Völker. Zu Entstehung und Gehalt der Erklärung der Vereinten Nationen über die Rechte der indigenen Völker
  • Stephan Rößler, Architektur und Politik. Vom Völkerbundpalast zum Entwurf für einen Neubau am UN-Amtssitz

Sunday, December 16, 2007

Ecuador's Notification Pursuant to Article 25(4) of the ICSID Convention

On December 4, 2007, the Secretary-General of ICSID received a notification under Article 25(4) of the ICSID Convention from the Republic of Ecuador. Article 25(4) of the Convention provides that a "Contracting State may, at the time of ratification, acceptance or approval of this Convention or at any time thereafter, notify the Centre of the class or classes of disputes which it would or would not consider submitting to the jurisdiction of the Centre." Ecuador's notification indicated that it would not consent to ICSID arbitration of disputes pertaining to investments in natural resources, such as oil, gas, and minerals. Ecuador had recently enacted a royalty tax on hydrocarbon investments, and it clearly envisages challenges to that law. Ecuador's actions are part of a wider dissatisfaction among some Central and South American countries with international investment law and particularly its dispute settlement regime. Bolivia, for instance, withdrew from the ICSID Convention earlier this year, and Venezuela and Nicaragua have also indicated that they may do the same. Ecuador has threatened to revise certain bilateral investment treaties as well.

New Issue: Journal of World Investment and Trade

The latest issue of the Journal of World Investment & Trade (Vol. 8, no. 5, October 2007) is out. Contents include:
  • Okezie Chukwumerije, Interpreting Most-Favoured-Nation Clauses in Investment Treaty Arbitrations
  • Mahmoud K. EI Jafari, Possibilities of Promoting Employment and Trade undre Siege: The Case of the Euro-Palestine
  • Zeng Huaqun, Partnership and Cooperation "One China, Four WTO Memberships": Legal Grounds, Relations and Significance
  • Tarcisio Gazzini, The Role of Customary International Law in the Field of Foreign Investment
  • Ursula Kriebaum, Regulatory Takings: Balancing the Interests of the Investor and the State
  • Jacques Werner, The Global Arbitrators

R (on the application of Al-Jedda) v. Secretary of State for Defence

On December 12th, the House of Lords issued its judgment in R (on the application of Al-Jedda) v. Secretary of State for Defence. The appellant is a U.K. and Iraqi national who has been held without charge by British authorities in Iraq since October 2004. He claimed that his detention violated the Human Rights Act 1998 and the English common law. British authorities claimed that he "was suspected of being a member of a terrorist group involved in weapons smuggling and explosive attacks in Iraq . . . [that he was] personally responsible for recruiting terrorists outside Iraq with a view to the commission of atrocities there; for facilitating the travel into Iraq of an identified terrorist explosives expert; for conspiring with that explosives expert to conduct attacks with improvised explosive devices against coalition forces in the areas around Fallujah and Baghdad; and for conspiring with the explosives expert and members of an Islamist terrorist cell in the Gulf to smuggle high tech detonation equipment into Iraq for use in attacks against coalition forces." The appellant denied these claims. This appeal, though, did not pertain to these allegations.

The House of Lords distinguished three questions on appeal. First, was the U.K. government liable for the appellant's allegedly wrongful detention or was the United Nations the responsible party because the impugned acts were attributable to the organization as a result of Security Council resolutions authorizing the Multinational Force in Iraq? Second, are British obligations under the European Convention on Human Rights qualified by those that arise under the U.N. Charter, particularly relevant Security Council resolutions? Third, what law applies to the appellant's detention, English common law or Iraqi law? The principal opinions were given by Lord Bingham of Cornhill and Lord Rodger of Earlsferry. On the first question, the Lords of Appeal (Lord Rodger, dissenting) found that the allegedly wrongful conduct was attributable to the United Kingdom and not the United Nations. The majority distinguished the admissibility decision of the Grand Chamber of the European Court of Human Rights in Behrami v. France, Saramati v. France, Germany and Norway (Application Nos. 71412/01 and 78166/01, May 2, 2007), which attributed the acts of KFOR to the United Nations and not to the individual countries that contributed forces to that mission. On the second question, all five Lords of Appeal found that the United Kingdom's obligations under the European Convention had to be limited by those due under the Charter. In this case, Lord Bingham wrote, the United Kingdom had the authority to detain the appellant, but, even so, it "must ensure that the detainee's rights under Article 5 [of the European Convention] are not infringed to any greater extent than is inherent in such detention." On the third question, the Lords of Appeal agreed that Iraqi tort law governed.

This case is interesting, of course, in its own right, but it has particular resonance given the Supreme Court of the United States's recent cert. grants in Munaf v. Geren (No. 06-1666) and Geren v. Omar (No. 07-394). For the opinion of the D.C. Circuit in Munaf, the petition for certiorari, and the brief in opposition to the petition, see here. For the same for Omar, see here.