Interstate Arbitration Research Articles

Climate Change Litigation: General Perspectives and Emerging Trends

Abstract This article provides an overview of the historical and current landscape of climate change litigation, highlighting its transformative impact on public perceptions and governmental policies globally. Ground-breaking cases have compelled States to adopt more ambitious greenhouse gas reduction targets, whilst emphasising a rights-based approach to climate change mitigation and adaptation measures. In fact, strategic climate change litigation is gaining momentum and is likely to continue in volume and importance. This allows for the targeting of a wider range of actors, not least within the private sector, which in turn can pose financial risks to fossil fuel firms. The article also discusses certain emerging trends in the context of climate change litigation, as well as the potential for a shift towards personal responsibility and inter-state arbitration in 2024. It concludes that climate change litigation emerges as a powerful strategy, capable of influencing policy, ensure accountability, and drive systemic change towards climate justice for present and future generations.

Aristocrats in Arbitration: Did Class Affect Inter-state Arbitration Before or After the 1899 Hague Peace Conference?

AbstractThis article explores whether the aristocratic status of arbitrators or disputants affected the outcome of inter-state arbitrations either before or after the 1899 Hague Peace Conference. This article takes a longue durée approach to the topic by including all inter-state arbitrations between 1794 and 1989. The research shows a statistically significant relationship between respondent-appointed aristocratic arbitrators on a tribunal and the outcome against the aristocratic party, as well as a statistically significant relationship between no respondent-appointed aristocratic arbitrators and outcome in favor of the claimant, but only in inter-state arbitrations before the Conference for both of these relationships. This article brings into question whether aristocratic arbitrators from before the Conference were fully committed to the international rule of law. Moreover, it highlights how such arbitrators stopped making their decisions based on class after the Conference, which should reassure users of inter-state arbitration that worry about such biases.

Independence and impartiality through the lens of incompatible activities, disqualification and challenge: the ICJ, ITLOS, and inter-State arbitration

ABSTRACT The members of the international courts and tribunals are expected to be independent and impartial. Their constituent instruments normally contain rules which aim at ensuring the independence and impartiality of judges and arbitrators. Such rules typically include provisions addressing activities incompatible with the judicial office, bars to the participation of a judge or an arbitrator in a particular case, when doubts about his/her impartiality arise. They sometimes address but are oftentimes silent on withdrawal, recusal or challenge. This article explores what types of activities can be said to be incompatible with the exercise of judicial functions or to bar the participation of a judge or an arbitrator in a particular case so as to shape the contours of the notions of impartiality and independence. It examines the existing normative arrangements and the practice of inter-State courts and tribunals, including the procedures and practice on withdrawal, recusal, challenge and the standard applied or applicable in assessing whether the requirements for independence and impartiality of international adjudicators have been met.

Court of Arbitration for Sport: Rules and Issues

International sports arbitration is regarded as a special type of international arbitration, which is quite different from international commercial arbitration and inter-state arbitration. Due to the party autonomy, convenience, and professionalism of international sports arbitration, major international sports activities and events generally chose international sports arbitration as the means to resolve disputes. After more than 30 years of development, the international sports arbitration rules, with the promotion of the Court of Arbitration for Sport, have become more developed and mature. In the meantime, however, we need to realize that there are many defects under the existing international sports arbitration system, such as the exclusive jurisdiction of the arbitral tribunal, transparency in the selection of arbitrators, and the application of arbitration rules. China shall think about how it can learn from the existing international sports arbitration system and promote the development of China’s sports arbitration institutions and rules.

Intervention in Inter-State Arbitration, including the Case of UNCLOS Annex VII Arbitration

This article addresses the issue of intervention in inter-State arbitration, including arbitration under United Nations Convention on the Law of the Sea (UNCLOS) Annex vii and tackles the question whether intervention in arbitral proceedings is only possible where the parties in dispute have expressly consented to it. It is maintained in this paper that international arbitration is not static and has undergone long evolution which has implications for the notions of party autonomy and confidentiality of proceedings. Nowadays inter-State arbitration is increasingly influenced by the practice of the ICJ and other international courts and tribunals engaged in State-to-State dispute resolution especially in the field of international procedural law. The article demonstrates that intervention in inter-State arbitrations is not as unthinkable as it was some decades ago. It does so by reference to the history of intervention in international arbitration and the practice of States in the field of intervention in international judicial and arbitral proceedings. While examining the function and purposes of the procedure of intervention in inter-State litigation and the forms of intervention known to it, the article assesses what the nature of the competence to permit intervention is. In this regard, it also examines the operation of the principle of consensual jurisdiction with a view to establishing whether intervention is subject to the consent of the parties in dispute. Finally, by way of comparison with other known forms of participation of non-litigants in the proceedings, it stresses the special function of the intervention procedure so as to justify the permissibility of intervention in inter-State arbitration.

Left Out in The Cold?

International Law and the Cold War is an invitation to study some of the forgotten discourses related to this period, many times unfairly associated with the idea of decay. The historical experience is often summarized with the assertion that “the Cold War period saw a decline in the commitment to international adjudication”. An examination of the judicial practice in the period is carried out, namely arbitration and decisions of the International Court of Justice (ICJ). We shall also briefly scrutinize the appearance of jurisdictional clauses in international treaties signed between 1947 and 1990. The second part of the article presents a specific instance of judicial settlement of disputes, outlining the American Treaty for the Peaceful Settlement of Disputes and the fundamental choices of the “Pact of Bogota” in relation to judicial settlement. In the third part, we zoom in on some ideas regarding international adjudication in Latin America and on the writings of some Brazilian authors – such as Haroldo Valladão – to demonstrate their perception of the phenomenon. The present analysis proves that the judicial settlement of international disputes did not depend on the collapse of the Soviet Union for coming into operation. Interstate arbitrations were very much present during the Cold War years. Jurisdictional clauses remained in vogue, a great number of treaties still being adopted that referred their disputes to the International Court of Justice. The Pact of Bogota was a groundbreaking initiative to support the jurisdiction of an international court through collective recognition, consolidating regional practice on compulsory adjudication.
 KEYWORDS: Cold War; settlement of disputes; interstate arbitration; International Court of Justice; Pact of Bogota.

Interstate Arbitration: “… Settling Disputes Which Diplomacy Has Failed to Settle”

The subject of interstate arbitration has been largely neglected in the field of international relations, often dismissed as merely an obscure legal process. Drawing on numerous cases, this article argues that interstate arbitration has been a significant strategic factor in settling important international disputes and that its merit as a dispute resolution method should be evaluated not only on the basis of arbitrators’ decisions alone but also on its impact on the underlying diplomatic process between disputants. The author examines the nature of interstate arbitration, traces its historical development, outlines its contemporary processes, and proposes a framework explaining how and when it may be applied to international conflicts between states.

Property Rights in Treaty Cases: Lessons for Investor-State Arbitration from Case A15 (II:A) of the Iran-United States Claims Tribunal

On 10 March 2020, the Iran-United States Claims Tribunal (IUSCT) rendered its partial award No. 604-A15 (II:A)/A26 (IV)/B43-FT in Case No. A15 (II:A), ordering the United States to pay Iran over USD 29 million in damages, including decades of interest, and to return several properties that had been frozen during the 1979 hostage crisis. In deciding which properties had to be transferred by the United States to Iran, the Tribunal – having concluded that there are no public international law rules on property – struggled to identify the law applicable to property rights in the context of an inter-state arbitration based on a treaty. While the majority applied international private law principles to determine the domestic law applicable to questions of ownership, several of the dissenting arbitrators expressed the view that the nature of the dispute, as a treaty case, required the exclusive application of public international law. These two diverging approaches offer an interesting perspective on recent investor-state decisions, which also present conflicting views on the role that should be attributed to domestic law in determining the contours of those property rights, which are the subject of treaty violations and the corresponding compensation of investors. property, international law, public international law, private international law, domestic law, applicable law, Iran-US Claims Tribunal, investor-state dispute settlement, investor-state arbitration, choice of law

A review of the Iran-United States Claims Tribunal

This article is intended to analyse the Iran-United States Claims Tribunal by considering its origins and decisions in order to find out to what extend it has been successful in the settlement of international commercial and inter-state disputes between Iran and the United States. The Tribunal work is evaluated to determine whether it has been a workable pattern of Western-style legal institution for further instances of politically changed circumstances. In its arguments and expositions, I will discuss whether the Tribunal is an international arbitral tribunal created to resolve private law disputes or an interstate arbitration body typically established by treaty. I will argue that the Tribunal should be considered as an instrument of public international law, because it is based on an international treaty between sovereign states. Through this study I will examine the question of the Tribunal’s jurisdiction and its application of international law as compared with the decisions of other international tribunals. It also considers an internal question to the theory of the governing law to the resolution of disputes.

Litigating, Arbitrating and Mediating Japan–Korea Trade and Investment Tensions

In July 2019, Japan introduced measures tightening export restrictions to South Korea on three chemicals critical to the manufacture of consumer electronics. The restrictions prompted an animated response by the Korean government that has included WTO consultations and threats to terminate an intelligence-sharing agreement with Japan. Meanwhile, the controversy has filtered down to the public with boycotts of Japanese products in Korea. Tension between the states has been unusually high since late 2018 when the Korean Supreme Court affirmed a judgment against Japanese companies accused of forcing Korean nationals to labour for them during Japan’s colonial rule. Japan argues that such claims are precluded by a 1965 treaty normalizing post-war relations. While Japan states that its trade restrictions were not motivated by the judgment, the disputes have together contributed to the worst breakdown in cross-border relations in five decades. This article evaluates Korea’s trade claims against Japan, means of resolving them, and the challenges that the claims face in the WTO dispute settlement system. The article also considers claims from the Japanese side through the International Court of Justice (ICJ), inter-state arbitration, and investor-state dispute settlement. We conclude that formal mediation offers an effective means to facilitate negotiations and centralize the WTO and other treaty disputes in a single forum involving multiple stakeholders. WTO, Japan, Korea, ISDS, mediation, arbitration, export, international trade law, investment treaties

Jakob Zollmann: Naulila 1914. World War I in Angola and International Law. A Study in (Post-)Colonial Border Regimes and Interstate Arbitration.

Jakob Zollmann: Naulila 1914. World War I in Angola and International Law. A Study in (Post-)Colonial Border Regimes and Interstate Arbitration.

225 Years to the Jay Treaty: Interstate Arbitration Between Progress and Stagnation

This article observes that 225 years have passed from the 1794 Jay Treaty between the United States and Great Britain, known among other achievements as marking the ‘modern’ era of arbitration in the resolution of interstate disputes. I argue that the perception of interstate arbitration reflected in the Jay Treaty, namely as a sui generis dispute resolution mechanism that is designed to resolve not only disputes that concern legal questions but also complex disputes involving political issues, is in line with its true nature and original purpose. In contrast, I trace the gradual judicialization of interstate arbitration over the last 225 years, which has culminated in a widely held perception of interstate arbitration and adjudication by a permanent international court as one of the same. To demonstrate the advantages of the ‘traditional’ understanding of interstate arbitration over this contemporary judicialized conception, the article presents a comparative case study analysis of four notable arbitrations concerning interstate territorial disputes. In this analysis, the article examines key legal and political aspects of these arbitrations in an attempt to illustrate how the parties’ and arbitral tribunals’ perception of the arbitral process may have affected the outcome of the case. The article then offers lessons to both state parties and arbitral tribunals regarding best practices in interstate arbitration. These include the parties appointing arbitrators familiar with the dispute who have extra-judicial expertise, and the arbitrators approaching their own role as judges-diplomats, deciding both the legal and political aspects of the dispute.

Cutting the Gordian Knot: Investment Dispute Settlement À La Carte

This paper examines the different approaches proposed for investment dispute settlement reform by major players in the global North and global South – ranging from incremental changes that respond to specific criticisms of the present-day investor-state dispute settlement system to the development of far-reaching institutional reforms, such as the establishment of a multilateral investment court. We observe considerable convergence of the main models on the objectives of reform and on many procedural features. In respect of dispute settlement design, by contrast, the main models are mutually incompatible. Drawing on the dispute settlement design under the United Nations Convention for the Law of the Sea (UNCLOS), we introduce, as a solution for the way forward, the idea of “dispute settlement a la carte“. This refers to a model that allows states to choose, under the umbrella of a common framework, among different modes of investment dispute settlement. This would encompass the creation of a multilateral investment court to whose jurisdiction states and organisations can voluntarily submit, but also provide states with the option of continuing to use investor-state arbitration or inter-state arbitration to settle investment disputes. Such a model could provide a common framework for investment dispute settlement reform, allowing different states and organisations to pursue different structural models for investment dispute settlement, while providing them with a platform that promotes convergence where possible. This would ensure representativeness of the regime and a degree of interpretative unity and safeguard the ability of states and organisations to shape their reciprocal obligations.

Naulila 1914. World War I in Angola and International Law. A Study in (Post-)Colonial Border Regimes and Interstate Arbitration , written by Jakob Zollmann

Naulila 1914. World War I in Angola and International Law. A Study in (Post-)Colonial Border Regimes and Interstate Arbitration , written by Jakob Zollmann

The Croatia v. Slovenia Arbitration: The Silver Lining

Abstract Much controversy has surrounded the recent arbitration between Croatia and Slovenia. Nonetheless, the proceedings represent a welcome step in the right direction in terms of the perception and use of arbitration as a quasi-diplomatic interstate dispute resolution mechanism. Such an approach to arbitration is evident both in the parties’ arbitration agreement and in the arbitral tribunal’s final award in this case. The article first explains the proper use of interstate arbitration in its original form as a quasi-diplomatic process. This process produces a final and binding decision that respects international law yet does not necessarily rely solely on it. The article then examines how this original quasi-diplomatic nature of interstate arbitration is reflected in certain aspects of the Croatia v. Slovenia case.

Interstate Arbitration in International Tax Disputes

The proliferation of interstate alternative dispute resolution (ADR) mechanisms, such as joint tax vetoes and mutual agreement procedures, as well as investor–state tax-related arbitration, are the chief reasons for the decline of interstate arbitration (or other forms of adjudication) in tax matters. The article argues that interstate arbitration is envisaged, apart from energy pipeline agreements, as a residual dispute settlement mechanism, but the relative success of ADR has limited interstate arbitration to a limited set of contexts and cases. The following instruments typically serve as submission agreements, namely: bilateral investment treaties, bilateral tax treaties, multilateral regional economic cooperation (or free trade) agreements and pipeline treaties. Ultimately, as the article concludes, a hybrid system that combines: (i) the direct involvement of the taxpayer; (ii) the efficiency of institutional arbitration; and (iii) the transparency guarantees of interstate arbitration is perhaps the way forward.

PEACEFUL SETTLEMENT OF DISPUTES

The purpose is to provide a general survey of the practice among States of the peaceful settlement of international disputes. There are variety of instruments for peaceful settlement, including negotiation, commissions of inquiry, Mediation, Conciliation and Good Offices. Care is taken to indicate the quantitative significance of the inter-State arbitration in relation to the use of standing international tribunals, such as the International Court of Justice.

Investigating the Value of Site Visits in Inter-State Arbitration and Adjudication

Site visits by the bench occur rarely in inter-state adjudication and arbitration. Against this backdrop, the recent site visits in Indus Waters Kishenganga Arbitration (Pakistan v. India) and Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India) are noteworthy and raise questions about how on-site inspections influence the decision making process and whether site visits are an underused fact-finding tool. An analysis of these site visits, as well as past examples of site visits by arbitral tribunals and the International Court of Justice, reveal that the utility and value of site visits by the bench is difficult to ascertain, and there is little evidence that site visits have played a dispositive role. Moreover, in many disputes, other fact-finding methods may be more suitable than a site visit. But if site visits do, in fact, play a significant role in decision-making, then adjudicators should acknowledge that influence in a more transparent manner.

Oh, Won't You Stay with Me?: Determining Whether 3 of the FAA Requires a Stay in Light of Katz

The Federal Arbitration Act (FAA) provides the legal framework to render international and interstate arbitration agreements judicially enforceable in the United States. In furtherance of that goal, it provides that if a party initiates litigation rather than arbitration of an arbitrable dispute, either party may request that the court stay the litigation pending arbitration. There is currently a split among the circuit courts in this country as to whether § 3 of the FAA requires a court under these circumstances to stay the suit or whether it has the discretion to dismiss the suit altogether.In Katz v. Cellco Partnership, the United States Court of Appeals for the Second Circuit, a leading U.S. court in creating and shaping domestic and international arbitration law, recently sided with the majority of sister circuits in holding that § 3 requires a court to stay the litigation pending arbitration. This Note argues that the proper interpretation of FAA § 3 does indeed require a stay and proposes that the Supreme Court adopt the Second Circuit’s reasoning. Further, it argues that the mandatory-stay approach is consistent with the plain meaning of the statute, as well as important policy objectives: (1) providing the pro-arbitration framework Congress intended when passing the FAA, as the Supreme Court has repeatedly underscored; (2) foreclosing interlocutory appeals of dismissals that stall arbitrations; (3) rejecting docket management as a grounds for dismissal; and (4) avoiding the general uncertainty and unpredictability of dismissals.

Interstate Arbitration and the Peaceful Resolution of Transboundary Fresh Water Disputes

Predictions that interstate fresh water disputes will increase in the future have led to a vast body of research on tools and techniques to manage shared freshwater resources so as to prevent such disputes from arising, however relatively little attention has been paid to the need for effective ways to resolve such disputes peacefully if and when they do arise. History suggests that States usually attempt to resolve fresh water disputes by way of ‘non-legal’ processes such as negotiation or mediation. However, such mechanisms are not always effective or efficient and may lead to deadlock. Arbitration, on the other hand, can provide an effective yet flexible process for the resolution of such disputes, but it has been rarely employed or even considered in this context. This paper sets out to examine the potential for arbitration to be effectively employed by States in the resolution of fresh water disputes. It first describes the unique nature of these disputes, briefly examines the international law principles governing them as well as the main mechanisms used for their resolution, and evaluates their adequacy. It then suggests a new approach to interstate arbitration, intended to ‘revive’ it in the context of fresh water dispute resolution. This approach calls for a return to the original purpose and ‘true nature’ of arbitration, which rather than constituting a purely ‘legal’ mechanism similar to judicial settlement was intended to be a more flexible, just, and ‘quasi-diplomatic’ alternative to it. It also sets out to revamp the Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment of the Permanent Court of Arbitration and adapt them to the specific context of fresh water disputes and the original quasi-diplomatic spirit of arbitration.