The Finality of Arbitration Involving States: Recent Developments

Abstract

arbitration involving States is a subject which raises many and highly diversified issues. Depending upon the circumstances, this type of arbitration may involve disputes between States (or for that matter between States and international organisations1), or it may relate to disputes between a State and private parties. Either type of arbitration may cover a variety of topics, including among others, questions relating to the procedural aspects of the proceedings or to the determination of the law applicable to the dispute.2 Beyond arbitral issues, issues of sovereign immunity may become relevant also at the time of enforcing the arbitration agreement or in connection with the recognition and enforcement of arbitral awards.3 Clearly, an exhaustive analysis of the many facets of the subject would require separate treatment. All that is possible in the present article is to single out certain issues that have arisen in recent years and show some of the advantages of arbitration as a means of settling disputes involving states, as well as some of the pitfalls that may hinder the effectiveness of that machinery. One encouraging factor concerns arbitration between states. Two recent examples come readily to mind. One is the Greenpeace arbitration between France and New Zealand,4 in which France admitted liability for the sinking of the Rainbow Warrior , a ship owned by Greenpeace, and also agreed to refer to the Secretary General of the United Nations other issues specifically related to its relations with New Zealand. The other case concerned the Taba arbitration between Israel and Egypt,5 which put an end to the boundary dispute between the two countries and has been reported recently as being practically settled.6 These encouraging signs are not the only ones. Significant results have also been achieved by the Iran-United States Claims Tribunal. However, …