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Geir Ulfstein and Andreas Zimmermann

Abstract

In its Burmych and Others v. Ukraine judgment of October 2017 the European Court of Human Rights dismissed more than 12,000 applications due to the fact that they were not only repetitive in nature, but also mutatis mutandis identical to applications covered by a previous pilot judgment rendered against Ukraine. This raises fundamental issues as to the role of the Court within the human rights protection system established by the European Convention on Human Rights, as well as those concerning the interrelationship between the Court and the Committee of Ministers.

Arnaud de Nanteuil

Abstract

There have been several cases involving counterclaims in recent investment arbitration practice. Though counterclaims are well-known in international litigation, they raise special issues when it comes to investor-State arbitration, especially when it is based on treaties that recognize only rights and not obligations of private parties; thus, a counterclaim may be a way of rebalancing investment law, by allowing States to file claims against investors. However, certain conditions must be fulfilled which are not always easy to combine with the special features of investment arbitration. That is what this article explores, in order to determine whether counterclaims could be a way of addressing the critique that has been recently formulated against investment arbitration.

José M. Cortés-Martín

Abstract

It is likely that the European Court of Justice’s (ECJ) objection in Opinion 2/13 regarding the absence of judicial remedies in certain Common Foreign and Security Policy (CFSP) areas can hardly be accommodated in a future revised Accession Project to the European Convention on Human Rights (ECHR). This is basically due to obstacles to proceeding with reform of the EU Treaties or establishing an ECHR reservation clause. However, as a matter of fact, the exact dimension of this problem seems to be quite relative. First of all, this is because recent ECJ case-law is gradually eroding the Court’s lack of competence, in particular, after Rosneft. Next, this is because, in those cases where there is still an absence of effective judicial protection, national courts – as EU ordinary courts – could fill this gap. Finally, this gap could also be filled by creating accountability mechanisms in the area of human rights within the framework of Common Security and Defence Policy (CSDP) missions.

Pierre Bodeau-Livinec and Chiara Giorgetti

Millicent McCreath and Zoe Scanlon

Abstract

The maritime boundary delimitation decision in the Ghana/Côte d’Ivoire Case is remarkable as the first decision of an ad hoc chamber of the International Tribunal for the Law of the Sea (ITLOS). This article evaluates the advantages of this critically under-examined dispute settlement mechanism, its operation in this case and the consequent prospects for the future use of such chambers. To date, the ad hoc chambers of both ITLOS and the International Court of Justice (ICJ) have rarely been used. Examining their respective procedures, legal frameworks, and performance, this article evaluates the comparative advantages and disadvantages of ITLOS ad hoc chambers vis-à-vis both ad hoc arbitration and the full bench of ITLOS. Although limited conclusions on the prospects for the mechanism’s future use can be drawn from this single decision, in light of the broadly positive outcome, prospective parties may be drawn to the possibilities and potential advantages of the ITLOS ad hoc chamber mechanism in the future.

Patrick Dumberry

Abstract

This article examines the question of State succession to bilateral investment treaties (BITs) in the unique context whereby the events leading to this change in sovereignty happen during an arbitration proceeding. I will assess the impact this will have on the respondent State in the proceedings which may cease to exist (dissolution, unification, and integration) or lose part of its territory (cession, secession). Succession may also affect the home State of the claimant investor and result in that person losing its nationality and acquiring a new one. An arbitral tribunal should continue to have jurisdiction over a dispute whenever a claimant involuntarily changes its nationality in such context. While the same conclusion should apply when changes affect the respondent State, major difficulties will arise if that State ceases to exist and no other State is willing to participate in the proceedings. I will examine the limits of tribunals’ powers in this respect.

Yateesh Begoore

Abstract

This article, which identifies the United Nations Security Council’s selective enforcement of the International Court of Justice’s rulings as an enforcement deficit within the Court’s system, delves into the possibility – and legality – of utilising the Uniting for Peace Resolution as an alternative enforcement mechanism in the event of a veto precluding enforcement by the Security Council.

Dai Tamada

Abstract

The problem with regard to the excess of power doctrine, one of the most controversial issues in the procedure of international courts and tribunals, was invoked in certain recent cases, such as the Bosnian Genocide case and the South China Sea case. To solve this problem, it is necessary to examine two relevant legal notions: the principle of competence-competence; and the principle of res judicata. First, the principle of competence-competence has been regarded as a relative power of arbitral tribunals in the sense that it is limited by the application of the rules of treaty interpretation. This means that there are possibilities, in the substantive sense, of an excess of power even when the principle of competence-competence is applied. Second, the international jurisprudence has shown that the force of res judicata can be excluded by a post-award agreement of the parties. Thus, it is possible, substantively and procedurally, to examine the possibility of an alleged excess of power having been committed by an arbitral tribunal and this understanding has been accepted by the ICJ in its jurisprudence. On the contrary, the ICJ has denied the possibility of an excess of power by itself, on the basis of the absolute power of competence-competence and the principle of res judicata. Here, several problems remain unsettled with regard to the difference between the possibility of an excess of power by ad hoc arbitral tribunals and the possibility of an excess of power by the ICJ.

Karsten Nowrot and Emily Sipiorski

Abstract

Intimidation of arbitrators in investment law is a rarely approached but significant threat to the legitimacy of the arbitral process. The article discusses the legal basis in the relevant treaties and conventions, as well as general principles of law, in regulating the behaviour and maintaining the impartiality and independence of arbitrators. With consideration of the distinct sources of intimidation, the article pursues the complicated reality of fairly approaching intimidation that comes from different actors, in particular from one of the parties. Respecting that dismissal of a compromised arbitrator may be in line with the desires of the actor and that the arbitrators typically take the decision on whether to dismiss, alternative methods for ensuring a fair trial and due process are assessed. The article concludes by looking with a critical eye at the current structure of the system and the possibility of unknown intimidations.

Andrea K. Bjorklund

Abstract

When judges are described as activists they are usually accused of either intruding into policy making best left to the legislative branches of government or intruding into values or social mores – matters best left to democratic processes, i.e. to “the people”. For an arbitrator to be an activist she would need to go beyond her duly conferred quasi-judicial powers, and arbitrators – and in particular investment arbitrators – have been accused of doing just that. Though there is a fine line between what constitutes activity and what constitutes activism, I suggest that arbitrators are not generally “activists.” First, they wield authority conferred on them by the arbitral agreement and by other sources of arbitral power. Second, particularly when the applicable legal standard is vague, this conferral includes quite broad authority to define and develop the applicable law. Third, the lack of agreement among states about what certain obligations mean suggests that arbitral tribunals are not going beyond their authority; rather, the fault, if fault there is, lies in the language of the agreements themselves.