Continuous Nationality in Loewen

Abstract

THE CASE of Loewen v. United States 1 has yielded valuable insights into a number of important issues, including the accountability of a federal state for breaches of international law by local courts,2 the requirement of exhaustion of local remedies with respect to the international delict of denial of justice,3 and – most dramatically – the circumstances in which an international tribunal might draw the conclusions that the conduct of a trial was ‘a disgrace’, ‘the antithesis of due process’ and a ‘miscarriage of justice’.4 Yet the case was ultimately dismissed on the grounds that the claims had been assigned to an entity owned and controlled by a US corporation. This, the arbitrators held, defeated a NAFTA requirement of diversity of nationality. True enough, the arbitral tribunal expressed the view that the claim might equally have been dismissed for failure to exhaust local remedies, but that was, it seems, obiter dictum. (If the nationality requirement had not been deemed a decisive obstacle, the exhaustion requirement would have taken its stead as the decisive issue. If so, one might surmise that there would have been a more searching investigation of the factual premises of the exhaustion issue than the one that commended itself to the arbitrators when they believed they were dealing with dicta only.) The tribunal’s treatment of the continuous nationality issue, considering its outcome-determinative effect,5 was startling in its succinctness. It will strike many readers as far less authoritative than the other pronouncements of the award (which, dicta or not, will be studied and cited for many years to come). …