Jurisdiction Of Domestic Courts Research Articles

Indian Courts and Bilateral Investment Treaty Arbitration

Although India has been entangled in close to 15 bilateral investment treaty (BIT) arbitrations, Indian courts have had limited opportunities to deal with these arbitrations. In this paper, we examine the interactions between BIT arbitration and Indian courts through a study of three domestic court cases arising in the context of anti-arbitration injunctions in BIT arbitration. These three cases are Port of Kolkata v LDA, India v Vodafone, and India v Khaitan. Through these three cases, for the first time, Indian courts have thrown light on issues such as jurisdiction of domestic courts on matters pertaining to BIT arbitration, the applicability of the Indian Arbitration and Conciliation Act, 1996 (‘A&C Act’) to BIT arbitration and questions surrounding “abuse of process” by foreign investors. Two cases out of three held that the A&C Act does not apply to BIT arbitration, leading to several questions pertaining to supervisory jurisdiction over BIT arbitration and enforcement of BIT arbitration awards in India. On “abuse of process”, the courts held that these questions should be addressed by BIT arbitration tribunals and not by domestic courts.

Li and Others v. Zhou and Attorney General of the Commonwealth

437State immunity — Jurisdictional immunity — Acta jure imperii — Exceptions to immunity of State — Alleged acts of torture committed by officials of the People’s Republic of China against Falun Gong practitioners — Whether accession to United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, constituting submission to jurisdiction under Foreign States Immunities Act 1985 (Cth)Treaties — Interpretation — Effect of entry into force — Submission to jurisdiction of domestic courts of other State Party — Principles of treaty interpretation — Construction of Article 14 of United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 — The law of Australia

The Universal Jurisdiction of South African Criminal Courts and Immunities of Foreign State Officials

Under the "complementarity" regime of the Rome Statute of the International Criminal Court (ICC), the jurisdiction of the ICC is secondary to the jurisdiction of domestic courts. States Parties, not the ICC, have the primary responsibility of investigating and prosecuting international crimes. The ICC acts only when States are "unable" or "unwilling" to prosecute. As a State Party, in order to give effect to the complementarity principle, South Africa enacted the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002, which determines the modalities of prosecuting perpetrators of the crimes of genocide, crimes against humanity and war crimes in South African courts.
 The Implementation Act also provides that South African courts will have jurisdiction over these crimes not only when they are committed on the territory of South Africa but also when they are committed outside the Republic. By granting South African courts jurisdiction over a person who commits a crime outside the Republic when that person is later found on South African territory, without regard to that person's nationality or the nationality of the victims, the Implementation Act empowers South African courts with universal jurisdiction over international crimes.
 This paper seeks to determine whether and to what extent foreign State officials, such as foreign heads of State, heads of government and ministers of foreign affairs, can plead immunity when they are accused of international crimes before South African courts when exercising their universal jurisdiction in terms of the Implementation Act and in accordance with the complementarity regime of the Rome Statute. In other words, the article endeavours to determine whether international law rules regarding immunities of State officials may or may not limit the ability of South African courts to exercise universal jurisdiction over international crimes committed in foreign States.

To What Extent Can and Should National Courts ‘Fill the Accountability Gap’?

International organizations are generally recognised as requiring privileges and immunities, in particular immunity from the jurisdiction of domestic courts, in order to remain independent and unimpeded in the fulfilment of their functions and duties. However, this approach often neglects the effect of a grant of immunity to international organizations, in that potential claimants may be deprived of their ability to raise claims against international organizations before the ‘natural forum’ of domestic courts. Recently, both legal doctrine and practice have devoted particular attention to the potential accountability gap created by sweeping jurisdictional immunities of international organizations. This has even led to calls for filling the gap by denying immunity. This paper will outline the development of the increased awareness of accountability gaps and assess the reactions so far. Finally, it will turn to an evaluation of the suitability of national courts as institutions for securing the accountability of international organizations.

Do International Organizations Enjoy Immunity Under Customary International Law?

The present article considers whether there is “a general practice accepted as law” establishing rules of customary international law on the immunity of international organizations from the jurisdiction of domestic courts. Apart from treaties, there does not appear to be a great deal of practice or opinio juris on the immunity of international organizations. And while there are many treaties dealing with the matter, their significance for the generation of a rule of customary international law seems questionable. This article sketches the historical development of the immunity of international organizations since the nineteenth century, describes various approaches that have been suggested to this question, and sets out such practice as there is and academic consideration of that practice. It then considers whether practice has to date generated any rules of customary international law regarding immunities, and finally suggests some conclusions.

THE HABIBI LIBEL TRIAL: DEFAMATION AND THE HIDDEN-COMMUNITY BASIS OF CRIMINAL LAW

Does the link between national community and criminal law reflect a practical limitation on the jurisdiction of domestic courts or is there a more intrinsic relation between the two? This question stands at the centre of the ongoing debate over the principle of universal jurisdiction – the ability of third-party national courts to adjudicate criminal cases that involve communities outside their territories. This article suggests that we can find the key for understanding the community basis of criminal law in the neighbouring field of libel law. At its centre stands the libel trial of Emile Habibi against the editors of Al-Sinara that took place in 1988–90. Libel law provides an interesting arena for exploring the community component of criminal law, as it takes its guidelines for recognizing defamation from an ‘imagined community.’ Habibi, an Arab citizen of Israel, a writer, and a political leader, was accused by the editors of Al-Sinara of having collaborated with the Zionist forces during the war of 1948 and having thereby contributed to the Palestinian Nakba (the catastrophe). Habibi sued in an Israeli court, arguing that such accusations amounted to defamation. The case raises several fundamental issues: can the story of the Palestinian Nakba of 1948 be told in an Israeli court? what are the normative implications of recognizing this narrative? and more broadly, are national courts capable of distancing themselves from the demands of ‘heroic history’ and recounting the perspective of the defeated? As the article shows, the legal process offers moments of subversion and resistance and invites the court to acknowledge the ramifications of adhering to the hegemonic Zionist narrative of the 1948 war.

The Habibi libel trial: Defamation and the hidden-community basis of criminal law

Does the link between national community and criminal law reflect a practical limitation on the jurisdiction of domestic courts or is there a more intrinsic relation between the two? This question stands at the centre of the ongoing debate over the principle of universal jurisdiction – the ability of third-party national courts to adjudicate criminal cases that involve communities outside their territories. This article suggests that we can find the key for understanding the community basis of criminal law in the neighbouring field of libel law. At its centre stands the libel trial of Emile Habibi against the editors of Al-Sinara that took place in 1988–90. Libel law provides an interesting arena for exploring the community component of criminal law, as it takes its guidelines for recognizing defamation from an ‘imagined community.’ Habibi, an Arab citizen of Israel, a writer, and a political leader, was accused by the editors of Al-Sinara of having collaborated with the Zionist forces during the war of 1...

An essay on the Accountability of International Organizations

AbstractInternational organizations sometimes suffer from acute agency problems. Three exogenous methods of addressing those problems are considered: economic incentives, political accountability and legal accountability. For international organizations, the first is undesirable and the second inevitably weak. There is therefore an argument for heightened legal scrutiny of their actions. Yet international organizations have an unenviable track record of acting without regard to the most fundamental international standards of rule of law, and this article offers an unsightly catalogue of their legal aberrations. Moreover, the internal legal mechanisms international organizations have created ostensibly to hold themselves to account prove wanting at best. There may also be structural reasons why international courts and tribunals will never be able to conduct an adequate review of the important decisions international organizations routinely take. This makes those organizations' assertions of blanket legal immunity from jurisdiction of domestic courts appear increasingly inexplicable, as it removes all possibility of legal accountability. The supposed rationales for legal immunities of international organizations are reviewed and proved wanting. The conclusion drawn is that international organizations should be subjected to radically improved regimes of international judicial oversight, or their immunities should be abrogated in certain areas so that they may be rendered subject to the jurisdiction of the domestic courts of the countries in which they operate, or both. Measures of this kind may dramatically improve the quality of decision-making and accountability of international organizations.

Attorney-General v. Mobil Oil NZ Ltd

Arbitration — Stay of proceedings — Convention on the Settlement of Disputes between States and Nationals of Other States — Jurisdiction of domestic courts — Arbitration clause in contract between Government and company — Reference of matter to International Centre for the Settlement of Investment Disputes — Whether domestic proceedings relate to matter over which proceedings brought pursuant to Convention — Dispute over effect of subsequently enacted legislation — Whether dispute arising under the terms of the agreement — Whether Court having residual discretion to take jurisdiction over matter — Whether Government bound by agreement to international arbitration — Arbitration (International Investment Disputes) Act 1979 — The law of New Zealand