Jurisdictional Decisions Research Articles

Comity rules the day—complementary jurisdictional decisions in Jersey and Bermuda

The courts of Jersey and Bermuda have recently been faced with competing applications concerning the same Bermuda law trust which is administered in Jersey. Far from the case reports showing a selfish tussle between these jurisdictions, they demonstrate a deep respect for comity. This article analyses the decisions in each jurisdiction and highlights the breadth of the jurisdiction of each court in trust matters and similarities in approach.

U.S. Supreme Court Amicus Brief of Civil Procedure Professors in Support of Respondents, Bristol-Myers Squibb Company v. California, No. 16-466

Petitioner Bristol-Myers Squibb argues that specific personal jurisdiction “exists only where the defendant’s contacts with the forum caused the plaintiff’s alleged injuries and the resulting suit.” Pet. Br. 17 (emphasis added). This has never been the law. While general jurisdiction may be amenable to narrowly defined categories, specific jurisdiction is not. Ever since this Court’s pathmarking decision in International Shoe Co. v. Washington, specific jurisdiction has been a far more flexible inquiry into the relationship among the forum, the defendant, and the dispute. This is as it should be. Requiring that specific jurisdiction rest on a strict causal link between the defendant’s forum-state contacts and the plaintiff’s claims provides no new benefits. Yet it would create uncertainty, risk destabilizing the system of litigation in both state and federal courts, and cast doubt on several of this Court’s earlier personal jurisdiction decisions. The current law, as established by this Court, is well calibrated both to ensure an appropriate forum for lawsuits and to prevent unfairness to defendants. To affirm the decision of the California Supreme Court in this case, the Court need only hold that Petitioner has purposefully availed itself of the privilege of conducting activities in California (which no one disputes), Respondents’ claims relate to Petitioner’s California contacts (which is barely, if at all, disputed), and California’s assertion of jurisdiction is reasonable (which Petitioner has effectively conceded (Pet. App. 35a)). No more need be said. The purpose of this brief is to explain why Petitioner’s proposed causation rule is a historical, inconsistent with the principles of personal jurisdiction, potentially destabilizing, and unnecessary to protect defendants from abusive exercises of state power. In short, this Court should decline to adopt petitioner’s proposal and should leave the law on specific jurisdiction unchanged for three reasons. First, this Court has never relied on a causation requirement to endorse — or reject — a state’s exercise of personal jurisdiction over a defendant. In fact, for this Court to do so would be inconsistent with a number of cases in which this Court found — or all involved assumed — that there was personal jurisdiction over claims against the defendant that were not caused by its forum-state contacts. Second, changing course now by adopting a causation requirement would lead to disruptive, inefficient, and unfair results — in both simple and complex litigation, and in both state and federal courts. A new causation test would throw into doubt even chestnuts of the first-year jurisdictional curriculum, like World-Wide Volkswagen v. Woodson. And it could wreak havoc with the way courts resolve our most complicated and economically important disputes, like the extensive litigation arising out of the ongoing Volkswagen “Clean Diesel” scandal. Third, it is unnecessary to take that risk in order to protect defendants from litigating in an unfair forum. Indeed, in this case, Petitioner has not even argued that California is an unfair place to litigate. To the extent that Petitioner’s concern is being haled into an inconvenient or distant forum, those concerns are already addressed in this Court’s requirement that any exercise of personal jurisdiction be reasonable. And in cases where another court is manifestly more appropriate, defendants may move to transfer the case or dismiss on forum non conveniens grounds. To the extent that Petitioner’s concerns relate to the law a court applies, such concerns are covered by each state’s choice-of-law rules and the constitutional restrictions on those rules. To the extent that Petitioner’s concerns relate to a state’s hostility towards out-of-state corporations, such concerns are addressed by diversity jurisdiction. Remedies for any such bias are therefore best left to Congress in defining the right to remove and the subject-matter jurisdiction of the federal courts. Finally, to the extent that Petitioner’s concerns are that the cases are being litigated against it at all — as Petitioner candidly admitted before the Court of Appeal — those concerns are not covered by the Due Process Clause.

Jurisdiction and Admissibility in Investment Arbitration: The Practice and the Theory

Abstract This is the first half of a two-part essay on jurisdiction and admissibility in investment arbitration. It focuses on the arbitration practice, whilst the second part sets these concepts in the wider framework of public international law litigation. This essay maps the objections to the tribunal’s jurisdiction (by ratio: materiae, temporis, loci and personae) and the claim’s admissibility. It offers some preliminary conclusions: in certain areas there still is no consensus; tribunals are inclined to characterise objections as jurisdictional, and rarely resort to admissibility; findings of inadmissibility draw a judgment on the claimant or the claim’s propriety (whilst jurisdictional decisions typically eschew value-judgment); tribunals failed to distinguish jurisdiction from admissibility. These findings are further explored, within a wider theoretical context, in the second part of the essay.

Remarks by Tai-Heng Cheng

In the first place, the motion cannot get off the ground because there is no objective way to tell what jurisdictional decisions are “expansive.” In every contested jurisdictional proceeding, the respondent, at that phase of the case, will regard the court's decision as overly expansive if the court seizes jurisdiction. Whereas the claimant will not.

Conditional release in the practice of district prison and the courts of competent jurisdiction

The research subject is the conditional release practice of the convicted from district prison. The analysis was performed by considering the risk factors of recidivism that prison and the courts of competent jurisdiction take into account when recommending and granting parole. On the basis of the Ministry of Justice and Public Administration directive (2013), the recidivism risk assessment instrument was introduced in our penal practice, and it was based on the OASys (Offender Assessment System) instrument. In the district prisons practice, The Questionnaire on the Risk Assessment for the Convicts Sentenced to Imprisonment up to Three Years (UPROKZ3) is used for the assessment of recidivism, which is the reduced version of the OASys instrument. The introduction of these instruments should overcome the use of general guidelines when assessing the risk of recidivism and the conditional release proposals, which led to voluntarism and arbitrariness. The research was conducted on a sample of 68 criminal records of the convicts who served their prison sentence in the District Prison in Užice. All convicts were evaluated by the UPROKZ3 questionnaire. During the period between January 2016 and June 2016, the convicts submitted a request for the allocation of parole, and the courts of the competent jurisdiction made decisions to grant it. The research results indicated that the courts of the competent jurisdiction granted parole more frequently than the prison recommended it. Inconsistency between the prison proposals and the courts of competent jurisdiction decisions was observed in 19.2% of the cases.

Philip Morris v. Uruguay: Implications for Public Health

This short article considers the implications for public health of the award in the investment treaty dispute Philip Morris v Uruguay, challenging certain tobacco control measures of Uruguay including in relation to graphic health warnings. The article also takes account of the jurisdictional decision in that dispute and the decision in Philip Morris v Australia, challenging Australia's standardised tobacco packaging laws. Philip Morris lost both disputes.

Art. 25 - Individual Criminal Responsibility

The provision, in particular paragraphs 1 and 2, confirms the universal acceptance of the principle of individual criminal responsibility as recognized by the International Military Tribunal and reaffirmed by the ICTY in the Tadic jurisdictional decision with regard to individual criminal responsibility for violations of common article 3 of the Geneva Conventions. The drafting history has been described elsewhere. Subparagraphs (a)-(c) of paragraph 3 establish the basic concepts of individual criminal attribution. Subparagraph (a) refers to three forms of perpetration: on one'sown, as a co-perpetrator or through another person (perpetration by means). Subparagraph (b) contains different forms of participation: on the one hand, ordering an (attempted) crime, on the other soliciting or inducing its (attempted) commission. Subparagraph (c) establishes criminal responsibility for aiding and abetting as the subsidiary form of participation. Thus, in contrast to the ILC Draft Codes of Crimes against the Peace and Security of Mankind4 and the Statutes of the ad hoc Tribunals, paragraph 3 distinguishes between perpetration (subparagraph (a)) and other forms of participation (subparagraphs (b) and (c)), with the latter establishing different degrees of responsibility. This approach confirms the general tendency in comparative criminal law to reject a pure unitarian concept of perpetration (Einheitstatermodell) and to distinguish, at least on the sentencing level, between different forms of participation. Subparagraphs (d), (e) and (f) provide for expansions of attribution: contributing to the commission or attempted commission of a crime by a group, incitement to genocide, attempt. Thus, in sum, article 25 para. 3 contains, on the one hand, basic rules of individual criminal responsibility and, on the other, rules expanding attribution (which may or may not still be characterized as specific forms of participation). A grosso modo, an individual is criminally responsible if he or she perpetrates, takes part in or attempts a crime within the jurisdiction of the Court (articles 5-8). It must not be overlooked, however, that criminal attribution in international criminal law has to be distinguished from attribution in national criminal law: while in the latter case normally a concrete criminal result caused by a person's individual act is punished, international criminal law creates liability for acts committed in a collective context and systematic manner; consequently the individual's own contribution to the harmful result is not always readily apparent.

Análise Pragmática das Decisões Judiciais Finais do Tribunal de Justiça do Estado de Alagoas em Habeas Corpus: Opções Metodológicas e Tratamento Conferido ao Material de Pesquisa

There exist lots of criticisms considering law research in Brazil, and an alternative way to produce innovation is to resort to empirical approaches. A previous research carried out by the authors aimed to examine the decisions taken in processes of habeas corpus by Alagoas State Court of Justice with the purpose of measuring the influence of the theory of garantismo (protection of all liberties and fundamental rights) of Luigi Ferrajoli in criminal decisions. We used pragmatism as a method, so that a jurisdictional decision was focused as one of the most important dimensions of our research while theoretical categories played the role of a support. This article describes methodological choices, and means of collecting data through the study of fifty-nine decisions taken from 2008 to 2012. It ended with the analysis of those judgements verifying to which extent Ferrajoli’s definition of liberties and fundamental rights has influenced on the decisions made by the Criminal Justice Court of Alagoas.

Show Me the Money: Enforcing Original Jurisdiction Judgments of the Caribbean Court of Justice

AbstractThis article examines the challenges surrounding the enforcement of decisions of international courts, using the Caribbean Court of Justice (CCJ) as the fulcrum of the analysis. When sitting in its original jurisdiction, the CCJ adjudicates claims arising from the Revised Treaty of Chaguaramas and the operation of the Caribbean Single Market and Economy. However, there is no clear route for the enforcement of original jurisdiction decisions. The Agreement Establishing the CCJ leaves the issue of enforcement to the states themselves, who in turn have either failed to enact enforcement legislation or have provided for enforcement to be carried out ‘in like manner’ as the decisions of domestic courts. This phraseology raises the spectre of the Crown Proceedings Act and its legislative progeny which bar the pursuit of enforcement proceedings against the state. Several solutions to this enforcement conundrum are discussed, ranging from a regional enforcement treaty, akin to the New York Convention, to enforcement at common law using the Fick case, with the merits and demerits of each examined in turn.

Los bordes del proteccionismo: límites y restricciones al ejercicio de los derechos humanos

En una reciente decisión tomada por la Suprema Corte de Justicia de la Nación, el Pleno resolvió que las restricciones a los derechos humanos expresamente contenidas en la Constitución deberán ser respetadas en todo momento sobre las disposiciones reguladas en los tratados internacionales firmados por México. En lo subsecuente, este documento presentará una discusión sobre la importancia que ha cobrado, en virtud de esta decisión jurisdiccional, la fuerza jurídica de las restricciones impuestas al ejercicio de los derechos humanos en el país.

Personal Jurisdiction and Tribal Courts after Walden and Bauman: The Inadvertent Impact of Supreme Court Jurisdictional Decisions on Indian Country

In 2014 the United States Supreme Court added two new cases to the canon on the meaning of due process in the context of personal jurisdiction. These cases clarified the metes and bounds of specific and general personal jurisdiction. However, decisions that fit within the state and federal court system do not always easily have cross applications to tribal courts – which nonetheless are obliged to extend due process rights via the Indian Civil Rights Act. This article takes the Supreme Court’s 2014 decisions and discusses their potential application to tribal courts and their use within Indian Country.

President-Elect's Page:The IADC 20/20 Vision

A year ago, Dick Neumeier, after serving as Editor of the Defense Counsel Journal for 22 years, handed the reins of the LADC's signature legal journal to M.C. Sungaila. In his farewell remarks, Dick borrowed from the inaugural inspiration of President John F. Kennedy when he challenged our membership to not what the Defense Counsel Journal can do you for you. Ask what you can do for the Defense Counsel Journall. Well, thanks to M.C. Sungaila, her editorial team, and our members, the DCJ has not missed a beat. Our members have embraced Dick Neumeier's challenge! In this, our 82nd volume, the DCJ has memorialized the keynote address of Prime Minister George Papandreou at our Midyear Meeting on Marco Island and continued to offer enhanced visibility to the IADC's growing amicus program by publishing briefs in support of issues critical to our corporate clients. Our July issue also includes must read articles analyzing employee class actions in the wake of Wal-Mart v. Dukes, the impact of the Supreme Court's recent jurisdictional decision in Daimler v. Bauman, risks and implications of innovator and co-promoter liability for pharmaceutical companies, and the expanding use of technology in the discovery process. The LADC is now in its 95th year, and the organization is better than ever. Our 2,500 members hail from more than 40 countries and five continents, and we continue to grow and expand throughout the world. The LADC stands alone, and our new logo captures the essence of our preeminent association and its members--Superior Advocates. Global Perspective. President Tripp Hasten has worked tirelessly to BUILD on the achievements and momentum the LADC has experienced over the past 20 years and, more recently, The Global Connection initiative our Immediate Past President, Molly Craig, launched in 2013. In the past two years, the LADC and its valued members have attended successful Regional Meetings and substantive programs in Paris, Milan, Vienna, London, Stuttgart, Lisbon, Singapore, Sydney, Hong Kong, Sao Paolo, and throughout the United States and Canada. Tripp's global leadership of the LADC is unprecedented and the For Law. For Life, theme of his tenure has truly enhanced the value of relationships, business development and education for our members. 20/20 Vision The LADC is in the home stretch toward its Centennial celebration in 2020. In the coming year, the leadership of the organization will continue its ongoing efforts to add greater value and increased visibility to the LADC and its members throughout the world. In April, the Board of Directors and the IADC staff began to work on a strategic plan that will ultimately define the association in its 100th year. …

The Particularly Dubious Case of Hans v. Louisiana: An Essay on Law, Race, History, and Federal Courtss

In a number of striking decisions the Rehnquist Court has limited the powers of Congress and substantially insulated the states from federal authority. In doing so it has repeatedly and explicitly based its jurisprudence on Hans v. Louisiana, an 1890 decision in which the Court held that the Eleventh Amendment barred citizens from suing their own states in the federal courts for money due on the state’s bonds. Hans asserted that the Eleventh Amendment, despite its narrow language, was intended to recognize a broad principle of state sovereign immunity which prohibited all suits against states absent their consent. While the policy behind the Rehnquist Court’s decisions may be wise or desirable in the early twenty-first century, its reliance on Hans is not. Although Hans invoked the history of the Eleventh Amendment’s drafting and ratification, its reasoning and conclusion did not reflect the intent of the amendment’s framers but the purposes of the post-Reconstruction settlement. That informal but well understood agreement among white Americans, driven in large part by racism, allowed the South a special and limited independence in imposing white rule and repudiating its state debts in exchange for national reconciliation and unity. Thus, as a matter of history, Hans gave voice not to the intent of the 1790s but to the compromise of the 1890s. Considered in the light of its own history, then, Hans properly merits no authority as a constitutional precedent for three interrelated reasons. First, it was a decision of expedience, not of principle. An examination of the Court’s jurisdictional decisions in the late nineteenth century shows that Hans was typical of the pervasive jurisdictional instrumentalism that marked the Court’s work across the board as well as in cases construing the Eleventh Amendment itself. Second, as an instrument of the post-Reconstruction settlement and an integral part of the Court’s general abandonment of southern blacks, Hans was both the product and tool of a pervasive racism among white Americans, north as well as south. Third, and legally pivotal, Hans was premised on early nineteenth-century procedural assumptions that the Court had already rejected and, decisively, on antebellum jurisdictional and constitutional assumptions that the Fourteenth Amendment had repudiated. Thus, Hans was a decision of mere temporary expedience, an instrument of racism and betrayal, and the product of an outmoded and rejected constitutional jurisprudence. As such, it has no claim to enduring authority as a constitutional precedent.Four of the justices on the Rehnquist Court who have repeatedly relied on Hans to expand the Eleventh Amendment should agree that those grounds are sufficient to require its repudiation. Only three years ago, in a case involving the Establishment Clause, they maintained that a constitutional doctrine “born of bigotry” should “be buried.” So, now, should Hans be buried.

El acceso a la información judicial durante la investigación penal preparatoria

The information come from the judicial organs is public. In its prosecution and diffusion it is necessary to harmonize the access to information right with other rights and constitutional rights. The judicial organs must try the diffusion for suitable channels of all the resolutions, except the cases in which the above mentioned publicity harms juridical interests that should be protected. Its diffusion contributes the society to the knowledge and comprehension of the form in which the Judiciary applies the right and takes jurisdictional decisions, facilitating this way a suitable civil control. The Fiscal Attorney General must articulate its relations with the press in accordance with canons of transparence and clarity, assuming the function to report, with the last purpose of that the journalists should arrange of a trustworthy information source. There becomes necessary the establishment of criteria and general rules of organization at the moment of allowing the access of the mass media to the information during the stage of preparatory penal investigation, ruled by the secret of summary. Every District attorney's office of Instruction must be provided with a spokesman or spokesman, entrusted of spreading the information to the mass media, with a prudence criterion, safeguarding constitutional value of the justice. This function can be realized so much by the Secretary or the Prosecretario, in accordance with the beginning of division of tasks and in coordination with the top organ (District attorney).

Investor-State Arbitration before the High Courtof Singapore: Territoriality, Nationality andArbitrability

This case note analyses the recent jurisdictional decision of the High Court of Singapore in Laos v Sanum Investments, concerning an alleged expropriation by the Laos government of an investment made by an entity incorporated in Macau. The Court's key finding was that the bilateral investment treaty between China and Laos was not intended to extend to Macau. This note questions the Court's focus on the territorial scope of the bilateral investment treaty, as opposed to the nationality of the investor, and appraises whether this case represents a departure from the ‘pro-arbitration’ reputation of Singaporean courts in international investment disputes.

Legal and Practical Aspects of Bankruptcy Proceedings in Albania and Their Role in the Protection of Stakeholders

Bankruptcy represents an effort to find the correct ratio between the need to protect economic assets left over from a subject in crisis and need to take care and realize greater extent the rights of creditors. Bankruptcy in Albania, for the first time was adjusted in the Commercial Code of Zogu, " Book six – Bankruptcy". Today in the Republic of Albania the law in 2002 "On bankruptcy" amended by law in 2008. This law is largely a continuation of adjustments made in 1995. This paper will address the news that the new law brings, regarding the procedures to be followed and the conditions to be met for a person debtor, can be downloaded from the remaining obligations. Regulated recognition of a foreign bankruptcy procedure and the opening of a secondary procedure, as well as collaboration between the higher of the two bankruptcy proceedings. Also, according to recent changes have envisaged by the law, Bankruptcy Supervision Agency" which is a public legal entity. We will treat the compatibility of our legislation with EU Regulation of 2000. The methodology used in the paper is the analysis of legislation and practical decisions. The conclusions show a positive tendency of legal norms to protect creditors, but the level of jurisdiction decisions and practice seems more embryonic. Relevance of this topic is related to social, legal but also economic aspects.

The res judicata rule in jurisdictional decisions of the international Court of justice

The author discusses the effects of the res judicata rule as regards jurisdictional decisions of the International Court of Justice. He finds that there exists a special position of a judgment on preliminary objection in respect to both aspects of the res judicata rule - its binding force and finality. A perception of distinct relativity of a jurisdictional decision of the Court, expressing its interlocatory character pervades, in his opinion, the body of law regulating the Court's activity. Preliminary objections as such do not exhaust objections to the jurisdiction of the Court, as evidenced by non-preliminary objections to the jurisdiction of the Court giving rise to the application of the principle competence de la competence understood in the narrow sense. With regard to the binding force of a judgment on preliminary objections, it does not create legal obligations stricto sensu. The author finds that the relative character of jurisdictional decisions of the Court as compared with a judgment on the merits is justified on a number of grounds.

Mapping the path of the teleological approach: a normative analysis of the Caribbean court of justice’s (CCJ) primary approach to treaty interpretation

Since its formal inauguration in the year 2006, the Caribbean Court of Justice (CCJ) has arguably shown itself to be quite capable of effectively dispensing with its overarching aims of consistency, coherence and legal certainty in the process of adjudication. Indeed, through the adoption of a teleological approach to the construction of the Revised Treaty of Chaguramas, the CCJ has positioned itself as a major operational component in the new Caribbean legal order, serving, as the European Court of Justice as well as several domestic courts have done, to ensure transparency and accountability. The court’s relatively nuanced purpose-driven approach has arguably been the single biggest contributing factor to the region’s quickly evolving ‘indigenous jurisprudence’. Nevertheless, some of the court’s most recent original jurisdiction decisions reveal a growing trend towards judicial restraint. The varying degrees to which the CCJ has adopted a teleological approach to the interpretation of the Revised Treaty of Chaguramas, the concomitant effects of this important development as well as the challenges which invariably arise in this connection are the subject of this article.

When Investor-State Arbitration Tribunal Becomes Policy Maker: Reflection on Jurisdiction Decision of Philip Morris v. Uruguay

Investor-State arbitration (ISA) consists of numerous individual ad hoc Tribunals as a mechanism to settle disputes between an investor and a State arising out of an investment, however, the aggregate effect of individual tribunals presents certain systematic structure of governance of which the awards have policy implications beyond the very individual disputes to both stakeholder in host states and other ISA tribunals per se. Philip Morris v. Uruguay offers us a chance to conceptualize ISA as a governance mechanism. Philip Morris v. Uruguay involves public health measures of tobacco control which is of broad implications to multilevel stakeholder, including foreign investor, industrial competitors, public authority in host state, and public interests in host state as a whole. Uruguay has made prerequisite domestic litigation procedure for investment treaty claims which constitutes an interface of interaction of two governance mechanisms. Detailed analysis of Jurisdiction decision of Philip Morris v. Uruguay reveals the flexible self-enforcement approach to jurisdiction, including confirmation of broad treaty terms, e.g. investment, disputes, and satisfactions of prerequisite jurisdiction conditions, which could be characterized as reflections of ISA as governance mechanism. ISA awards have the policy externality of which the implications go beyond disputants in individual disputes to stakeholders in host state because foreign disputes always involve public interest per se as well as through individual case reasoning and awarding, tribunals review states’ measures, either regulatory or commercial, and by interpretation of treaty obligations and general international law, set standards for states in their internal administrative process. Policy externality of individual awards is only the initial step of institutionalization of ISA as governance which is ultimately fulfilled through the conscious or unconscious self-enforcement of ISA as a system by individual arbitrators. With direct rights of foreign investors to sue state in international arbitration and abstract but similar IIA terms, considerable discretions are vested to ISA arbitrators. The large number but homogenous arbitrators interact with each other, gradually establishing certain shared understanding concerning the interpretation method, the content of core concepts in IIAs. With the long term and large scale evolvement, ISA finally becomes an institution which de facto and should exercise public authority over public policy issues in domestic level, rather than an simple ad hoc dispute settlement tribunal, which could escape from individual states’ treaty design and acquire certain institutional ability of self-maintenance. ISA achieve public policy function through two approaches - substitution effect and review effect - in dealing three kinds of disputes, namely contract disputes, regulatory disputes and administrative disputes (if not overall overlapped with regulator disputes). During the institionalization process, critics follow. Justifications and safeguard measures to ISA as governance mechanism are of great urgency and significance which call for further research.

The Special Tribunal for Lebanon Declines to Review UN Security Council Action: Retreating from Tadic's Legacy in the Ayyash Jurisdiction and Legality Decisions

The question whether an international tribunal created by the United Nations Security Council has the power to review its own legality has recently been answered in the negative by the Special Tribunal for Lebanon (STL) in Ayyash, directly contradicting the much celebrated Tadic decision of the International Criminal Tribunal for the former Yugoslavia. This paper critically analyses the reasoning of the trial and appeals chambers of the STL as well as that of President Baragwanath in his partially dissenting opinion. The authors question the conclusion that an international tribunal - created via a Chapter VII resolution - has no duty to verify whether it was lawfully established before it exercises its primary jurisdiction. Such an approach goes against existing authorities, moves away from the general trend of exercising judicial scrutiny over Security Council action, and creates an impression that the STL shies away from demonstrating its impartiality and independence as well as its compliance with the highest standards of international justice. The authors argue that it would have been more judicially sound to affirm the inherent power of the STL to rule on whether it was lawfully established (or not). They submit that President Baragwanath’s approach - although not perfect - offers the more persuasive and nuanced legal reasoning to the issue at hand. Lastly, the practical and legal consequences of an international tribunal finding that their creation was illegal are considered.