Overview: International Law

Abstract

In the 2010–11 legal year, the Supreme Court produced six rulings dealing with issues of international law, ranging from questions of sovereign immunity to the articulation between interpretations of the Human Rights Act 1998 by English courts and posterior jurisprudence to the contrary by the European Court of Human Rights (ECtHR). Dallah Real Estate and Tourism Holding Co v Pakistan1 dealt with the review powers of courts seizedwith the enforcement of an international arbitral award. An arbitral tribunal, sitting in Paris under the auspices of the International Chamber of Commerce, had held the Government of Pakistan liable for damages, which the Government challenged on the basis that it had not been a true party to the arbitration agreement. The Court held unanimously that the principle ofKompetenz-Kompetenz did not imply that domestic courts were bound by interpretations made by the arbitral tribunal regarding the existence and validity of the arbitration agreement. Pursuant to the Arbitration Act 1996,2 which reflected the New York Convention,3 the validity of the award was determined by the law of the seat of arbitration, but could be challenged before the courts of the country of enforcement.4 Under French law, courts would apply a test of common intention to an issue of jurisdiction. Here, the mere fact that the Government of Pakistan controlled a party and had signalled its approval to the transaction did not mean that it was itself party to the agreement. In R v Forsyth,5 the Court unanimously upheld the validity of an order issued in relation to United Nations Security Council Resolution 661,6 which imposed an embargo on trade with Iraq and Kuwait. The Court rejected the argument that the sanctions imposed by the order were not supported by the United Nations Act 1946 due to the delay between resolution and implementation.7 There