Tribunal Award Research Articles

Interocean v Nigeria: Broaching the ICSID Tribunal's Award on Jurisdiction and What it means for Consent to Arbitrate in Investor-State Dispute Settlement

Interocean v Nigeria: Broaching the ICSID Tribunal's Award on Jurisdiction and What it means for Consent to Arbitrate in Investor-State Dispute Settlement

Disputes Emanating from the Infringement of Articles 74(3) and 83(3) and Optional Exception under Article 298(1)(a)(i) of the United Nations Convention on the Law of the Sea

Maritime delimitation, which ensures the jurisdiction exertion and effective use of maritime spaces of coastal States, never involves minimal efforts. In the transitional period pending the final delimitation agreement of overlapping areas in the exclusive economic zone or continental shelf, the United Nations Convention on the Law of the Sea (UNCLOS) sets out obligations for State Parties to take provisional measures under Articles 74(3) and 83(3). The violation of these obligations may lead to disputes between States that will potentially be brought before the compulsory dispute settlement procedure under UNCLOS. Whether disputes arising from the violation of Articles 74(3) and 83(3) fall into the scope of application of optional exception under Article 298(1)(a)(i) remained debatable. Accordingly, this research paper is conducted to analyse the separation and independence between the interim regime and maritime delimitation to support the opinion that disputes emanating from the infringement of Articles 74(3) and 83(3) are not disputes ‘relating to sea boundary delimitation’ under Article 298(1)(a)(i). This paper uses the doctrinal approach on the provisions in international treaties or conventions, international customary law, and decisions and awards of international courts and tribunals.

LONDRA’DA DENİZ TİCARETİ TAHKİMİNE İLİŞKİN GENEL BİR DEĞERLENDİRME

Due to some reasons such as the need for secrecy, the protection of reputation, the fact that the disputes are resolved quickly and by experts in the field, arbitration has become the most popular method to be used in maritime disputes across the world. In practice, it seems that in many international commercial agreements, the arbitration venue is provided as London, and the law to be applied to the arbitration is English law. Within this scope, around the world, rather than arbitration institutions like ICC, especially LMAA with its ad hoc arbitration process is considered to be the most applied association. Consisting of many expert arbitrators in maritime disputes, LMAA has updated its arbitration rules of three sets along with its independent rules-FALCA Rules. Moreover, before the arbitration process begins, it is possible for parties to a dispute to sign an agreement voluntarily with an evaluator in order to obtain an early neutral evaluation. As being a form of an alternative dispute resolution method, in this process, parties apply to the evaluator for his objective and realistic opinion. However, in case that the dispute cannot be solved at any stage until arbitration, in this study, the LMAA Terms to be applied and the procedure regulated in these Terms should be examined and some matters regarding arbitral tribunals and legal remedies against tribunal awards should be discussed.

The Unfortunate Wording of Article 121(3) of unclos and Its Interpretation in the 2016 South China Sea Arbitration Award

Abstract Article 121(3) of the 1982 United Nations Convention on the Law of the Sea (unclos) provides for the legal definition of the term “rocks” in international law. This article focuses on key aspects of the interpretation of this provision by the South China Sea Arbitral Tribunal in its Award of 12 July 2016 taking into consideration the current state and prospects of development of international law regarding Article 121(3) of unclos. This research discusses in particular, the method of interpretation applied by the Arbitral Tribunal to define the terms established in Article 121(3) of unclos as well as the meaning given to those terms by the Arbitral Tribunal. In addition, this article examines the (potential) impact of the South China Sea Arbitral Tribunal Award of 12 July 2016 on future State practice and jurisprudence as regards the interpretation and application of Article 121(3) of unclos.

The long march of COVID-19

Nursing and Residential CareVol. 24, No. 1 ProfessionalThe long march of COVID-19Adam BernsteinAdam BernsteinCorrespondence to: Adam Bernstein; E-mail Address: [email protected]Adam Bernstein Limited, UKSearch for more papers by this authorAdam BernsteinPublished Online:3 Feb 2022https://doi.org/10.12968/nrec.2022.0005AboutSectionsView articleView Full TextPDF/EPUB ToolsAdd to favoritesDownload CitationsTrack CitationsPermissions ShareShare onFacebookTwitterLinked InEmail View article References Clark I. Employment tribunal award statistics published - 2019/2020. 2020. https://www.morton-fraser.com/knowledge-hub/employment-tribunal-award-statistics (accessed 24 January 2022) Google ScholarFord M. Long COVID data reveals pandemic's ‘lasting impact’ on health staff. 2021. https://www.nursingtimes.net/news/coronavirus/long-covid-data-reveals-pandemics-lasting-impact-on-health-staff-03-09-2021/ (accessed 24 January 2022) Google ScholarOffice for National Statistics. Update on long COVID prevalence estimate. 2021a. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/962830/s1079-ons-update-on-long-covid-prevalence-estimate.pdf (accessed 24 January 20212) Google ScholarOffice for National Statistics. Prevalence of ongoing symptoms following coronavirus (COVID-19) infection in the UK. 2021b. https://www.ons.gov.uk/peoplepopulationandcommunity/healthandsocialcare/conditionsanddiseases/bulletins/prevalenceofongoingsymptomsfollowingcoronaviruscovid19infectionintheuk/1july2021 (accessed 24 January 2022) Google ScholarOffice for National Statistics. Prevalence of ongoing symptoms following coronavirus (COVID-19) infection in the UK. 2022. https://www.ons.gov.uk/peoplepopulationandcommunity/healthandsocialcare/conditionsanddiseases/bulletins/prevalenceofongoingsymptomsfollowingcoronaviruscovid19infectionintheuk/6january2022 (accessed 24 January 2022) Google Scholar FiguresReferencesRelatedDetails 2 January 2022Volume 24Issue 1ISSN (print): 1465-9301ISSN (online): 2052-2932 Metrics History Published online 3 February 2022 Published in print 2 January 2022 Information© MA Healthcare LimitedPDF download

Functional Immunity of the Marines on the Enrica Lexie: A Reply To Raffaella Nigro

This article is a short reply to Raffaella Nigro’s assessment of the Arbitral Tribunal award in the Enrica Lexie case. Professor Nigro analyzes the rule of functional immunity of State officials from foreign criminal jurisdiction and argues that it cannot be applied to the two marines, even supposing that military personnel are covered by such a rule. Professor Nigro bases this conclusion on the facts that the marines were stationed on a commercial vessel and were servicing the interests of the private shipowner. In reply, this author reaffirms the existence of a rule of customary international law on functional immunity and argues that military personnel assigned to commercial vessels are carrying out these duties in order to protect Italian interests and contribute to the defeat of piracy. Therefore, the marines on board the Enrica Lexie were (and still remain) under the protection of the rule on immunity from foreign criminal jurisdiction.

Who Wins in International Investment Arbitration Disputes? Evidence from Latin American and Caribbean Countries’ Cases under ICSID

During the nineties, an important group of Latin American and Caribbean (LAC) countries adhered to the International Center for Settlement of Investment Disputes (ICSID) as part of a programme of measures that sought to attract foreign investment to the region. With the aim of exploring the determinants of arbitration outcomes, I use a dataset of 161 concluded disputes until 2019 corresponding to investments in LAC countries, finding evidence on the influence of parties’ characteristics, the subject discussed in cases, and characteristics of the tribunal on the arbitration outcomes. I find that 50% of tribunal decisions have been favourable to either claimant investors or host countries. However, this result may be subject to sample bias if information of settlements and discontinued cases is not taken into consideration. I also find evidence in favour of selection and party capability theories that helps to explain the determinants of international investment arbitration dispute outcomes. In particular, the results reveal that disputes related to direct expropriations have a relatively higher probability of being considered founded by tribunals than other legal controversies. Likewise, the indicators of the relative strength of parties, such as experience in the international arbitration system, have an important influence on tribunal awards. Furthermore, country’s time of experience within ICSID is found to have an important influence on the selection of disputes.

Analysis of The UK Supreme Court Decision in Micula and Others V Romania

On 19 February 2020 the UK Supreme Court in the case of Micula and others v Romania upheld 2013 ICSID tribunal award and lifted the stay on its enforcement. This case commentary provides a historical background of the 15-year long-running dispute between Romania State and Swedish Micula brothers, his co-investors and companies in order to understand the decision of UK Supreme Court. An attempt has been made to analyze the Sweden-Romania Bilateral Investment Treaty, 2013 the decision of ICSID tribunal, 2015 decision of EU Commission, 2019 judgment by the General Court of European Union (GCEU), 2019 decision of the US District Court. In this comment, the author also made an attempt to analyze the decision given in the Achmea v Slovakia case along with GCEU decision which creates a negative environment for the cross-border investors and has a wider ramification on Bilateral Investment Treaties (hereinafter BITs). This case comment also shows how the judgment of the UK Supreme Court welcomed by the EU-investors and creates a positive environment for them to invest in the European Union and creates an obligation for the English Court to recognize the ICSID Award. Further, the ruling had a wide implication in Investment treaty arbitration and recognition of ICSID ruling in other jurisdictions. Finally, the author concludes the judgment in a wider political context of Brexit, International Investment Arbitration, BITs and Achmea case.

Resenha: The Political Economy of the Investment Treaty Regime

A resenha aborda o livro The Political Economy of the Investment Treaty Regime, escrito em coautoria por Jonathan Bonnitcha , Lauge N. Skovgaard Poulsen e Michael Waibel. Os autores exploram as principais características do Regime dos Tratados de Investimento, arcabouço jurídico formado por tratados de investimento, regras procedimentais e decisões de tribunais arbitrais. Um renovado movimento de crítica e reformas reforça a relevância do estudo do tema.

Developing Operation Procedures for Individual Reservoirs in a Large Multistate River Basin in Context of Tribunal Awards

The uncertain nature of monsoon and the high temporal and spatial variability of rainfall in India make it imperative to utilize the available water resources optimally and efficiently. Reservoirs are one of the most effective means of matching the temporal and spatial availability of water with demands. In India, the state governments are considered custodians of the water in their respective states. Sometimes, water-sharing disputes arise in large river basins that are shared by multiple states. A mechanism to resolve such disputes is through tribunals, which allocate the basin waters to different states and projects in accordance with their past and projected demands, water availability at different dependability levels, and other constraints. In such basins, the operation of individual projects/reservoirs, so as to follow all the stipulations of the tribunal, is a challenging task. In this paper, a methodology has been framed to develop the operation procedure for individual projects so as to honor the tribunal awards. The Krishna River basin in India has been used as an example case study. The proposed procedure keeps track of the total inflows received, the total water used, and the balance utilizations to be made at each project, each state, and the whole river basin in real time. Using this procedure, the percent utilization achieved by different sharing states of the Krishna basin, especially in deficit years, is quite close to the values specified by the tribunal. The developed methodology is quite general and can be applied to any river basin with suitable modifications.

Res Judicata- A Boon or A Bane for International Investment Tribunals?

The issue of Res Judicata has long been debated within the international investment law community. This debate has revolved around the proper use of this common law doctrine which gives a judgment, an award (which is considered equivalent to a judgment of a court), a final, binding and non-triable effect. By non-triable, we mean that a same matter, with a same parties to dispute, with same factual backgrounds and with same prayers for relief cannot be re-tried in a court of law or tribunal again. This powers enshrined under this doctrine comes from the notion of a another doctrine i.e. doctrine of precedents. Doctrine of precedents does the same job as the doctrine of res judicata in a way that precedents can be considered a post judgement effect of res judicata. This paper however, won’t be dealing with the issue of doctrine of precedents in international investment law, which is an altogether entire different subject and an issue. Nonetheless, the author is going to discuss the current and outgrowing effects of res judicata and its application by international investment tribunals. Like in any common law jurisdiction, res judicata has become a part of countries civil procedure, it has also gained universal acceptance of being part of general principles of international law, both public as well as private. The author will further elucidate the applicability and non-applicability of res judicata with the reference to famous Lauder and CME case and its case effects in international investment regime. Finally, as to the authors opinion too, the author will conclude by highlighting few important and relatively recent investment tribunal award which states that res judicata is important for achieving coherence, consistency and predictability, all of which forms a part of current criticism of the international investment regime.

Who wins in international investment arbitration disputes? Evidence from Latin American and Caribbean countries cases under ICSID

During the nineties, an important group of Latin American and the Caribbean (LAC) countries adhered to the International Center for Settlement of Investment Disputes (ICSID) as part of a program of measures that sought to attract foreign investment to the region. Using a dataset of 161 concluded disputes until 2019 corresponding to investments in LAC countries, we find evidence on the influence of parties’ characteristics, the subject discussed in cases, and characteristics of the tribunal on the arbitration outcomes. We find that 50% of tribunal decisions have been favorable to either claimant investors or host countries. However, this result may be subject to sample bias if information of settlements and discontinued cases is not taken under consideration. We also find evidence in favor of selection and party capability theories that helps to explain the determinants of international investment arbitration dispute outcomes. In particular, the results reveal that disputes related to direct expropriations have a relatively higher probability of being considered founded by tribunals than other legal controversies. Likewise, the indicators of the relative strength of parties, such as experience in international arbitration system, have an important influence on tribunal awards. Furthermore, country’s time of experience within ICSID is found to have an important influence on the selection of disputes.

The Normativity of Public International Law Reconsidered

The Order of the International Court of Justice (ICJ) of January 23, 2020 on the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) might form a preliminary starting point for this brief address. The Order confirms that public international law defines through international treaties, customary international law, and general principles legally binding commitments and rights of states. As a matter of consequence, based upon those norms, judgments, orders, and awards of international courts and tribunals are legally binding on the parties to the dispute in question to the extent the adjudicating body has jurisdiction.

Analysis of Cauvery water-sharing award using an analytical framework model

The award finalized by the Cauvery Water Disputes Tribunal CWDT (2007a,b) [Final order of the Cauvery Water Disputes Tribunal. Ministry of Water Resources, Govt. of India, New Delhi] for water sharing among the co-basin states of the Cauvery river basin in India was analyzed and compared with the results obtained by using a model proposed by Garg and Azad (2018) [J. Hydrol., 560, pp. 289–300] by analyzing the same data that was used by the Tribunal. The comparison of the model results for a real basin, with the results of the altogether different approach like the tribunal award, was made to serve two purposes (i) establishing confidence in the applicability of the model, which otherwise might be considered as some mathematical jargons by the authors without having adequate connect with the realities (ii) analyse the Tribunal award for its rationality and to draw general inferences. The analysis of the Tribunal award led to some new insights on the water sharing among co-basin states, namely (i) it is demonstrated that it would not be proper to reduce the allocation of water to a co-basin states for distress year in proportion to its’ allocation for the normal year to ensure an equitable distribution among co–basin states (ii) it is also revealed that the static allocation even for normal yield of the basin as a whole, should not be made among co-basin states, because it is possible that the normal yield of the basin as a whole may not synchronize with the normal yield of co–basin states (iii) the study defied the general perception that the inclusion of groundwater in overall water availability of the basin will lead to reduction in share of the surface water for co–basin states having relatively more groundwater potential as compared to other co-basin states. The study indicated that the CWDT (2007a,b) award failed to ensure an equitable water-sharing among co-basin states even for a year with normal yield in the Cauvery basin as a whole. The results of the model demonstrated different allocations to different co-basin states depending upon the hydrological conditions of the individual co-basin states for the normal yield of the Cauvery basin as a whole against the static allocation of water recommended by the Tribunal. The model recommended that the water allocation be varied from 380 thousand million cubic feet (TMC) to 399.4 TMC for Tamil Nadu, from 278.1 TMC to 315.2 TMC for Karnataka, from 42.5 TMC to 45.2 TMC for Kerala, and from 5.6 TMC to 6.2 TMC for Pondicherry depending upon the hydrological conditions of the co-basin states during a normal yield of the Cauvery basin, against the static values of water allocation proposed by the Tribunal of 419 TMC for Tamil Nadu, 270 TMC for Karnataka, 30 TMC for Kerala, and 7 TMC for Pondicherry for the normal yield of the Cauvery basin. Further, the study showed that if groundwater is also included along with surface water for water allocation among co-basin states, then the model allocated 3.5TMC more surface water to Tamil Nadu under the normal hydrologic condition of the Cauvery basin. Prima facie, it is against general perception that the surface water allocation to Tamil Nadu would be significantly reduced if the groundwater is also considered along with the surface water as groundwater potential of Tamil Nadu co-basin state is relatively higher than other co-basin states. It can be safely concluded from the study that the model proposed by Garg and Azad (2018) has the potential to resolve the transboundary water allocation problems and the model is flexible to include any number of demand and supply-side variables along with their weights in a rational manner.

Making It Final: The Elements of a Tribunal's Award

Last month, the authors looked at different types of arbitration awards, including partial final, interim, or consent awards, as provided for in party agreements, arbitration provider rules, or applicable law. In this month's Part 2, they examine final awards.

Islands Awash Amidst Rising Seas: Sea Level Rise and Insular Status under the Law of the Sea

Abstract This article considers the potential impacts of sea level rise on maritime zones with particular reference to impacts on islands. It considers the sea level rise predictions of the Intergovernmental Panel on Climate Change; it outlines the existing legal framework for coastal baselines and insular features established by the 1982 Law of the Sea Convention. It highlights the work of the International Law Association Committee on International Law and Sea Level Rise, which in its 2018 report had identified the development of a body of State practice among the States and Territories of the South Pacific regarding the maintenance of existing maritime zone claims in the face of sea level rise. That practice is considered, together with the implications of the 2016 Tribunal Award on the South China Sea case on maritime zone claims based on islands.

Impact of Developmental Interventions in Upper Krishna Project (UKP) Area

The Upper Krishna Project (UKP) is one of the biggest projects in India and was started as multipurpose irrigation project in the drought prone northern part of Karnataka. The UKP consists of two dams across the river at Alamatti village and Narayanpur village. The implementation of Krishna Water Tribunal Award passed on 30.11.2010 resulted in increase of storage level of Almatti Dam from FRL 519.60 to FRL 524.256 m. 4.656 m increases in the storage level, an area of 76357 acres of land is expected to submerge in the back waters of Almatti reservoir, though, 22 villages with 32427 families may get effected in this event. The present research was undertaken in UKP area of Bagalkot district, Karnataka state during the year 2012-13. From Bagalkot district, three Rehabilitation Centres (RC) were selected from each of Bagalkot, Biligi and Hungund taluk to form a sample size of 180 by using random sampling technique. In this context, it was indeed necessary to study the developmental interventions in Upper Krishna Project area of Bagalkot district, in order to plan appropriate developmental programmes. During the survey it was learnt that, Government had given top priority for construction of houses. Therefore, 100 percent of the rehabilitant farmers had availed benefit of the HCG. 90.56 per cent of the rehabilitant farmers availed benefit of Income Generating Schemes (IGS) in case of training programmes followed by horticulture development, IGA and new SHG formation. Higher proportions of the rehabilitant farmers (41.67% and 36.67%) were found in high asset acquisition category in case of financial and physical capitals, respectively. Majority of the rehabilitant farmers (80.56%) suggested for extend free household electricity. The findings of the study provide valuable information to administrators, planners, policy makers and extension workers in order to plan appropriate developmental programmes for Project Displaced Families (PDF).

Обзор решений международных инвестиционных арбитражей за 2017–2018 годы: вопросы компетенции (юрисдикции) и приемлемости иска

Обзор решений международных инвестиционных арбитражей за 2017–2018 годы: вопросы компетенции (юрисдикции) и приемлемости иска

Public Goods and International Investment Law: Does the New Generation of iias Better Protect Human Rights?

The implicit inclusion of human rights and other public goods in international investment law by way of interpretation is always contingent on various factual and legal elements. Consequently, it cannot ensure that all investment arbitration tribunals will arrive to the same or at least similar conclusions when it comes to the inclusion of human rights. That is why the trend to include explicit provisions or references into the newly negotiated iias seems to be advisable. The article aims at presenting some new trends in both treaties (bits and other iias) and awards of investment tribunals.

Arctic Sunrise Arbitration (Netherlands/Russia) (Award on Compensation) (Perm. Ct. Arb.)

An ad hoc arbitral tribunal convened pursuant to Article 287 and Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) delivered its award on compensation on July 10, 2017, in Arctic Sunrise (Netherlands/Russia). The award was unanimous on all holdings and included no separate opinions. The Tribunal awarded the Netherlands just under EUR 5.4 million under four separate heads of damages arising out of Russian violations of its obligations under UNCLOS that were established in the Tribunal's award of August 15, 2015.