Ratione Materiae Research Articles

Nonarbitrability and Mandatory Rules: Brothers, Not Twins

Notwithstanding the lack of clear legislative intent, Belgian judges have unilaterally prohibited the arbitration of exclusive distribution disputes, unless a specific Belgian pro-distributor statute was applied or unless similar substantive foreign rules were applied. However, in 2023, the Court of Cassation finally reversed its jurisprudence. Yet, the syllogism underlying this longawaited reversal remains unsatisfactory. It mistakenly equates a conflict-of-laws issue concerning mandatory rules with questions of nonarbitrability under international arbitration law. Such an overly simplistic assimilation is inappropriate in many respects. It dilutes the tailored legal standard applicable to international arbitration into a lesser question of applicable rules. It unduly prevents a subject matter from entering ratione materiae into the arbitration field. Upon closer examination, it conflates two substantively different gateways to arbitration: the nonarbitrability doctrine (Article V(2)(a) of the New York Convention) and the public policy exception (Article V(2)(b) thereof). In so doing, it needlessly erodes confidence in the arbitral process, which is based on parties’ autonomy, and violates the principles of judicial non-interference in international arbitral proceedings and of competence-competence. In essence, regardless of the pro-arbitration outcome in the case at hand, this flawed syllogism violates the New York Convention’s straightforward language and pro-arbitration ethos by potentially generating unnecessary, unforeseeable, and improper exceptions to arbitration.

Deconstructing Turkcell V Iran: The First Investment Treaty Claim against Iran

Once an arbitral tribunal is constituted, the preliminary issue to be decided is the question of jurisdiction and admissibility of the claim. At the pre-merit stage, the tribunal determines whether it has jurisdiction over the disputes to proceed with the substantive issues. In investment arbitration, the jurisdictional requirements are contained in bilateral investment treaties (BITs) and the 1966 Convention on the Settlement of Investment Disputes between States and Nationals of other States (ICSID Convention) and municipal laws. This article critically analyses the first BIT claim against Iran by reconstructing the Turkcell arbitration case. The Turkcell case concerned complex questions of Iranian and international law concerning the jurisdiction of an arbitral tribunal over investment activities. The Turkcell case highlights the important issue of interpretation of treaty provisions concerning the definition of investment (ratione materiae) and investors (ratione personae).

Considerations of (Non)-Application of Immunity of State Officials from Foreign Jurisdiction in Cases of International and Transnational Crimes

Abstract This article examines the scope and limitations of jurisdictional immunities afforded to high-ranking state officials accused of international and transnational crimes in foreign courts, including international courts. It discusses how international law balances the immunities granted to facilitate international relations and uphold state sovereignty against the need to address serious crimes that threaten the international community as a whole. The analysis delves into key legal debates and landmark cases shaping the understanding of these immunities. A focal point of the analysis is the work of the International Law Commission (ilc) on the topic of Immunity of State Officials from Foreign Criminal Jurisdiction, particularly Draft Article 7. It is argued that ilc’s Draft Article 7, while explicitly clarifying the application of immunity in international crime cases, also provides valuable insights into the scope of immunity for transnational crimes. Transnational crimes, like corruption, are fundamentally private acts carried out for personal gain, regardless of whether they are committed by someone in an official capacity or utilizing the resources and instrumentalities of the state. Therefore, these acts cannot be considered official and do not trigger the application of immunity ratione materiae. By highlighting the implications of Draft Article 7, the article contributes to the broader understanding of how international law can reconcile the need for state officials to perform their duties without fear of foreign prosecution with the necessity of holding them accountable for serious crimes. It suggests a more restrictive approach to immunity, particularly concerning transnational crimes, thereby enhancing the potential for legal accountability for offending state officials.

The International Criminal Court: current problems and ways of their solution

The article examines the current problems of the functioning of the International Criminal Court, in particular the main problem – insufficient expected effectiveness, problematic issues of jurisdiction, initiation of proceedings, duration of proceedings and its influence on the effectiveness of the ICC, as well as the issue of proper cooperation between the ICC and states.
 It is emphasized that the establishment of international criminal justice bodies was a response to impunity for committed international crimes, which arises due to the ineffectiveness of national legal systems in the fight against international crimes. It is emphasized that the effectiveness of the International Criminal Court largely depends on cooperation with states and international organizations, as well as available financial and human resources.
 It is concluded that there is an urgent need for the international community to review the mechanisms of response to those states that, by not extraditing suspects, de facto contribute to impunity for committed international crimes; effective countermeasures and sanctions by states and international organizations should be applied to them.
 Emphasis is placed on the expediency of amending the Rome Statute in accordance with Article 121 of the Rome Statute, giving the International Criminal Court unconditional ratione materiae jurisdiction over the crime of aggression, as is the case with genocide, crimes against humanity and war crimes. It is emphasized that the International Criminal Court should become a permanent court that will have such jurisdiction; in its turn, this will reduce the risk of committing new armed aggressions.
 A partial solution to the problem of the excessive length of criminal proceedings at the ICC is proposed by increasing funding and recruiting additional personnel.

Diachronic and Physical Characteristics of Doctrinal Production in Moroccan Administrative Law

Modern Moroccan administrative law and its techniques are the direct result of the intervention of the French protector. However, the fact of French inspiration does not always mean that the case law is transposed as it was pronounced in its country of origin; adaptations are often necessary in order to allow its application in the Moroccan context. This study is guided by the concern to highlight the diachronic and physical characteristics distinguishing Moroccan doctrinal production based on genealogical and archaeological methods. The research revealed that the production of doctrinal ideas accompanied the events experienced by the process of judicial organization in Morocco. Which explains the sensitivity of the authors to the socio-political context. The doctrine in fact turns out to be indissolubly constituted by both rationepersonae and ratione materiae. Its freedom implies almost total freedom of writing, unless possible obstacles linked to the need to find a publisher are considered.

Arbitrating Investment Disputes Involving States with Competing Governments (on the Example of Venezuela)

The present article analyses whether investment tribunals are competent to determine which representatives are entitled to act on behalf of respondent states with competing governments. The examination of existing case law and theoretical background suggests that investment tribunals have incidental jurisdiction to decide on the representation issue. In this case, the representation issue is resolved for the sole purpose of proceeding to consideration of claims, which are properly within the tribunals’ jurisdiction ratione materiae and the decision on this issue is not included in the dispositif of the awards and lacks res judicata effect. The most plausible approach to decide the representation issue is to conduct a substantive analysis of the government’s entitlement to act on behalf of the state. The alternative avoidance techniques to resolve the representation issue are questionable from the perspectives of their logical coherence, practical convenience and safeguarding the parties’ procedural rights. This analysis should be conducted in accordance with the criteria of customary international law. The legitimacy of a government’s origin is just one of these criteria and has a limited role in the overall test for identifying the government which is entitled to act on behalf of the state. Finally, this analysis should also take into account the considerations of procedural fairness, which depends on the factual circumstances of each specific case.

Interpretation of “Investments” and “Investors” in the Russia-Belgium/Luxembourg BIT: Seeking Ways to Resolve the Case of NSD

The paper addresses jurisdictional issues on the case of NSD initiating investment arbitration against Belgium/Luxembourg. Under the Russia-Belgium/Luxembourg BIT, the states undertake to prevent expropriation of investments and, if it does happen, to pay timely and fair compensation. Such “expropriation” may also occur due to sanctions. Being a Russian intermediate custodian for a number of foreign securities, the NSD has accounts with the centralized European securities Euroclear/Clearstream depositories. Since the inclusion of the NSD in the list of entities provided for in Annex I of EU Regulation no. 269/2014 in June 2022, transactions with the securities were suspended, NSD’s account with Euroclear/Clearstream was blocked. Because the NSD accounts with foreign securities depositories were blocked, it became impossible to transfer non-Russian securities from a securities account opened with the NSD to another Russian or foreign securities depository. One of the ways to challenge the consequences of Euroclear/Clearstream actions is to file a claim with the investment tribunal against Belgium/Luxembourg. The case has two potential solutions: mass claim from the end-investors or one single claim by the NSD as a “nominee holder” of the end-investors’ securities. The first option might seem time- and resource-costly, which is why a claim by the NSD might seem more attractive. Hence, using the interpretation instruments of public international law, the paper aims at assessing the perspectives of initiating investment arbitration proceedings by the NSD, thereby focusing on interpretation of the two central terms in the Russia-Belgium/Luxembourg BIT — “investor” and “investment”. The paper concludes that prima facie the investment tribunal would have jurisdiction over the case rationae personae nonetheless the “nominee holder” status of the NSD, as well as jurisdiction ratione materiae, where the blocked securities could constitute an “investment” in the sense of the BIT. Consequently, the paper defines the legal capacity of nominee holders to initiate arbitration. Since the issue has never been raised before, the paper draws an analogy with the case law on shell companies.

Türkiye İnsan Hakları Ve Eşitlik Kurumuna Yapılan Şikayet Başvurularında Kabul Edilebilirlik Koşulları

Ulusal insan hakları kurumları (UİHK), insanların temel haklarının ulusal düzeyde korunması ve geliştirilmesi için önemli mekanizmalar olarak kabul edilmektedir. 2016 yılında 6701 sayılı Kanun ile kurulan Türkiye İnsan Hakları ve Eşitlik Kurumu (TİHEK) 24.11.2017 tarihinden itibaren bazı konularda şikâyet başvurusu almaya başlamıştır. TİHEK’e ayrımcılığa maruz kalan kişiler ile ulusal önleme mekanizması çerçevesinde özgürlüklerinden yoksun bırakılan kişiler başvuru yapabilmektedir. TİHEK, insan hakları ihlallerine karşı resen araştırma yapmak, suç niteliği taşıyan eylem varsa ilgililer hakkında suç duyurusunda bulunmak, bu ihlallerin sona erdirilmesi için gerekli girişimlerde bulunmak yetkisine de sahiptir. Bu makale, TİHEK’e yapılan bireysel başvurularda kişi yönünden yetki (ratione personae), konu yönünden yetki (ratione materiae), zaman bakımından yetki (ratione temporis) ve yer bakımından yetkiye (ratione loci) ilişkin kabul edilebilirlik koşullarına odaklanmaktadır. Kabul edilirlik koşulları TİHEK kararları ışığı altında incelenmiş ve TİHEK’e başvurunun niteliği ile Kamu Denetçiliği Kurumu ve Anayasa Mahkemesinin temel hakların korunması hakkındaki başvuruların niteliği bakımından karşılaştırma yapılmıştır.

Provisional Adoption of Draft Article 7 of the International Law Commission Articles on Immunity for Foreign Officials and Its Implications

Abstract This article analyses the consequences of the International Law Commission (ILC) adopting Draft Article 7, about exceptions to immunity ratione materiae of foreign criminal prosecution, in a seemingly rushed way, without solving the sometimes antagonistic views of its members and of the international community. To this end, the generally accepted rules of immunity were reviewed, followed by taking a closer look at the discussions within the ILC. It seems that the reasoning of the Special Rapporteur on the topic has failed to provide enough proof of state practice and opinio juris to affirm the customary status of an exception to immunity ratione materiae for international crimes. Had the commission tried to resolve the disagreement among its members, the provisional adoption of Draft Article 7 would not bring much criticism. As a result of the lack of clarity, however, national courts are applying said exceptions, which action is believed to be contrary to international law as it currently stands. This is one of the consequences of the provisional adoption, the other being the international responsibility of states which disregard the immunity of a foreign official, not to mention the deterioration of the friendly relationship between the forum State and the State of nationality of the official.

Neuroenhancement Patentability and the Boundaries Conundrum in Psychiatric Disorders

Abstract Patent offices worldwide deny patentability to innovations which stand against the ordre public: does enhancement represent a value-laden societal threat? Patent offices also reject applications for therapeutical methods: when is enhancement also a therapeutical method? One specific class of enhancers, i.e. pharmaceutical neuroenhancers, is particularly complex in this respect: certain molecules can potentially function both as treatment for neuropsychiatric disorders and as recreational enhancers for non-patients’ brain. Hence, the present work advances the debate on enhancement patentability in two directions: ratione loci, by scrutinising China’s stances on enhancement’s safety and morality, compared to the most frequently explored Western jurisdictions, namely the EU and the US; and ratione materiae, by illuminating the porous bioethical boundaries between treatment and enhancement in the domain of neuropsychiatry. It challenges patent offices’ de facto regulatory role in defining and policing citizens’ access to neuroenhancing substances through misplaced or pseudo-scientific intellectual-property narratives of innovativeness and morale.

Crime of Aggression before Domestic Courts: Some Contemporary Challenges

Summary The article focuses on contemporary challenges concerning the domestic prosecution of the crime of aggression. These challenges have one common feature, that they deal with the scope of jurisdiction over crime of aggression at a domestic level. The author analyses applicability of jurisdictional immunity (based on the principle pars in parem non habet iurisdictionem), immunity of State officials, both personal (ratione personae) and material (ratione materiae), and finally also the availability of universal jurisdiction in relation to the crime of aggression. The contribution is built on the presumption that even though each category of crimes under international law has its unique characteristics, they all share some common definitional features, reflected among else in the famous Cassese’s definition of crime under international law. The author argues that all crimes under international law are to be treated uniformly as much as possible, and therefore – relatedly – there should not be any unsubstantiated differences in standing of the crime of aggression comparing to standing of remaining categories of crimes under international law.

Whose Bond Is It Anyway? Interrogating the Tribunal Majority’s Application of Article 25(1) of the ICSID Convention in Adamakopoulos v Cyprus

The Decision on Jurisdiction in Theodoros Adamakopoulos and Others v Republic of Cyprus is now three years old. Alongside Marcelo Kohen’s dissent, this decision triggered much discussion regarding (i) the alleged incompatibility of the relevant bilateral investment treaties (bit s) vis- à- vis the European Union (EU) treaties and (ii) the implications of mass claims brought under icsid Rules. With an award looming on the horizon, it is necessary to address a different aspect of the decision: the majority’s qualification of certain bonds and other indirect expressions of such assets as an ‘investment’ under Article 25 (1) of the icsid Convention. This article will argue that the Tribunal majority’s analysis – relying as it does on a series of incompatible decisions – manifestly fails to establish that contingent convertible Bank of Cyprus and Laiki Bank bonds held by Claimant bondholders qualify as an ‘investment’ under the icsid Convention. The Tribunal majority thereby undermined jurisdiction ratione materiae for a significant class of Claimants, creating an opening for adverse Annulment Committee review upon release of the final award.

Characterization (and Registration) of a “BRI Dispute”

Abstract This article explores the terms “BRI dispute” and “BRI jurisprudence”. It undertakes a practical and theoretical analysis that considers whether “BRI disputes” have distinct and visible characteristics and are capable of being identified in a legal sense. This is important since practitioners – arbitration centres and law firms – use the term broadly and without specific criteria. By exploring the customary usage and the approach of legal scholars to the term, presenting examples of “BRI disputes” and examining their unique features, and constructing a theoretical approach (utilizing the concepts of ratione materiae, ratione loci, ratione temporis, and ratione personae; and considering the jurisprudence of the ICSID), this article moves from a broad to a narrow analysis to develop both a definition and a system of registration of “BRI disputes” for use by academics, practitioners, and policymakers.

The ILC’s First Reading Draft Articles on ‘Immunity of State Officials from Foreign Criminal Jurisdiction’ (2022)

Abstract In August 2022, the International Law Commission adopted, on first reading, a full set of 18 draft articles (with commentaries) on Immunity of State Officials from Foreign Criminal Jurisdiction. The Commission now awaits the written comments of States, and will then have to decide how to proceed with the topic. In detailing the present situation and the work leading up to it, the present article takes the story forward from a contribution to this Yearbook in 2018. After recalling briefly the controversies surrounding the immunities in question, the article begins by describing the working methods of the Commission and the status of its documentation, emphasizing the importance of having a clear understanding of such matters when invoking the Commission’s work. The further work of the Commission on the topic in the years 2019–2022, much of it quite technical, is described, in order to give a full picture. It is then shown that the draft articles on the category of high officials enjoying immunity ratione personae and on possible exceptions to the immunity of State officials ratione materiae remain hotly disputed, both as assertions of existing law or as ‘trends’ or proposals for new law. The article ends by charting a possible course for the Commission’s future work on the topic, suggesting that a radical reappraisal is required if an outcome generally acceptable to States is to be achieved.

International Legal Regimes for the Protection of Cultural Property in the Event of Armed Conflict

The paper notes the attempts that are being made to doctrinally substantiate a broad approach, according to which the «international law of cultural property» was formed as a special (autonomous) legal framework. Without sharing such views, the author justifies the existence of an intersectoral institute for the international legal protection of cultural property, and also notes that the protection of cultural property in the actual situation of armed conflict is a branch institute of international humanitarian law (IHL), characterized by the presence of special principles and established scope of application (ratione materiae and ratione temporis). For the purposes of IHL, the definition of «cultural property» is formulated. It implies movable and immovable objects of the material world (objects) that are subject to identification and have no military purpose. They are of fundamental importance for the cultural heritage of not only a single people, but also the entire international community, included in the relevant register/list and under common, special or enhanced international legal protection, including their storage sites or concentration centers.A reasonable proposal has been made to introduce the concept of the «1954 Hague Convention system» into scientific circulation. The central part of it is formed by the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, including the Executive Regulations as an integral part of it, and additional Protocols to it (Optional Protocol I and the Second Protocol of 1999), as well as three resolutions attached to the Final Act of the 1954 Conference. It is emphasized that the Second Protocol of 1999, which Russia has not ratified, provided for the creation of institutional structures designed to complement the system of implementation of the Hague Convention of 1954. Based on the analysis of the «1954 Hague Convention system», three conventional regimes for the protection of cultural property in the actual situation of armed conflict (general, special and enhanced) have been established and their features have been analyzed.

The scope of judicial cooperation in civil and commercial matters within the EU in the context of the exclusion of administrative matters and acta iure imperii

The present article focuses on the scope of the key sources of judicial cooperation in civil and commercial matters within the EU, namely the Brussels I bis, Rome I and Rome II Regulations, in the context of the activities of public authorities. The aim of the article is to identify whether a legal relationship in which one of the parties is a public authority can qualify as a civil and commercial matter within the meaning of the Regulations in question and thus be subsumed under their ratione materiae and, if so, under which circumstances.

Territorializing the Arctic: Problem of Ice in International Law

Following the 2021 Suez Canal obstruction, humanity is now in search of safer and better functioning maritime trade routes, and the icy Arctic turns out to be one of the key candidates. The article contributes to the current debate concerning the status of ice in International Law, the legal status of which remains unclear, stuck in a limbo between the law of the terrain and the law of the sea. The methodology includes reconfiguring the meaning of ‘territory’ under International Law through conducting an evolutionary interpretation to provide grounds for the existence of a ratione materiae type of territory, supported by related domestic and international legal instruments of Alpine and Arctic States. The article outlines useful elements from similar experiments on the measurement of ice features employed in the process of the Alps border demarcation and administration. In conclusion, a sketch of a ‘functional’ Arctic is drawn to suit a world aiming at a sustainable human-nature relationship. The paper aims to introduce ‘ice’ as a legally valid criterion under the law of territory that can be applied in sovereignty disputes on a regular rather than sui generis basis. It demonstrates the fallacy of the static conception of territory in the modern day, particularly when applied in a dynamic environment such as the Arctic, while also stressing the importance of multidisciplinary learning and its critical role in advancing legal theory in domains considered to be the most normatively rigid, such as territorial sovereignty.

African Leaders and the ICC: Much Ado about Immunity

The paper examines international criminal jurisprudence with a view to putting the issue of sovereign immunity in the right perspective within the context of the furore between African States and the International Criminal Court (ICC). The research is library based. It relies on secondary materials from learned journals, and textbooks by most learned international publicists, reports of the variegated international tribunals and so forth. The paper found that jus cogens infractions are not attributable to a State and so cannot be imputed to it for the purpose of grounding immunity ratione materiae. It concludes that there is nothing as absolute immunity and that withdrawal from the ICC will not provide the reprieve from prosecution which African leaders seek.

Due care under the Civil Obligations Act

A provision requiring parties to obligations to act with due care is one of the basic provisions of the Obligations Act, and therefore applies to all obligations. This provision states types of due care, care of bonus pater familias, care of bonus businessman and care of bonus professional, but does not define either the way how to determine whether certain person acted with required care nor legal consequences of acting without it. The paper firstly analyzes and presents the application of this provision ratione materiae, ratione tempore and ratione personae. Then, in detail and concretely, from the literature and jurisprudence standpoint, it presents individual types of due care, i.e. requirements that an individual type of care puts before parties to obligations, as well as examples of when these requirements were not met. Furthermore, the way how to determine whether certain person acted with a required care is discussed and consequences of acting without due care. The connection between provisions is distinguished, which ties legal consequences with a request or a possibility of knowledge of certain facts and provisions that require acting with certain care. The request for certain knowledge or a possibility to have certain knowledge originate from the later provision, and consequently legal consequences for persons who had to know or could know certain facts.

Thailand’s debut in investment treaty arbitration: the curious case of Walter Bau and its lessons for participants in international investment law

Abstract Thailand’s first experience with investment treaty arbitration has not been a pleasant one. Nevertheless, it offers important lessons to States, foreign investors, and arbitral tribunals regarding their respective participation in the process of decision-making. First, States must be meticulous in concluding investment treaties while bearing in mind that their subsequent practice affects the way those treaties are interpreted and applied. Second, foreign investors’ due diligence when making investments and their selection of a suitably qualified lawyer to represent them in arbitral proceedings will both affect the outcome of their case. Third, arbitral tribunals’ understanding of international law is critical for the credibility of investment treaty arbitration and will contribute to its legitimacy—or lack thereof. In fulfilling their role, arbitral tribunals should consider economic realities within the confines of an applicable investment treaty. Furthermore, to determine their jurisdiction ratione materiae and jurisdiction ratione personae for non-ICSID arbitration, they should adopt the single keyhole approach, following the definition of ‘investment’ and ‘investor’ given by the parties as lex specialis and acting in accordance with the principle of procedural economy.