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Critical Assessment of the Merits of Arbitration

Info: 5065 words (20 pages) Essay
Published: 30th Jul 2021 in Law

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Introduction:

In order to fully comprehend how arbitration that transcend states this discussion will explain how states are bound by contractual obligations in the public and private international arena. It will consider the role of the ICC and the protection of human rights violations within states, asking whether it is better to allow domestic jurisdictions to prosecute or the ICC. This will then be applied to situations when states become involved in investment practices between states and what duty of care these states owe to each other and their investors. Hence considering the legal nature of contracts between states, i.e. can they be easily be rescinded or is there a higher obligation to honour? Does this differ when states are in a position of dominance? Also investment law arguably bridges between private international law and public international law because investment from the WTO, WBO and states such as the US and regions, such as the EU need certain social and democratic treaties to be initiated and fulfilled.

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The main concern of countries within the international arena is to maintain its sovereignty and integrity from incursions of other states, which is the arena of public international law. This discussion is going to consider the effectiveness of international law in dealing with disputes once an incursion has occurred, focusing on whether the decisions at an international legal level are effective or flouted in either a direct or indirect manner. In order to do this essay is going to consider when a state has been subject to and penalized by international law it can legally not adhere to these obligations. In the case of private individuals that transcend borders there is the problem that the stronger party will lobby to have the case in the state that protects their interests, which will be considered when discussing the LCIA.

International Criminal Court (ICC) Outdated System of Arbitration:

The ICC deals only with war criminals as defined under the Rome Statute. Crimes against humanity as defined in the Rome Statue include extermination of citizens, slavery, torture, rape, forced pregnancy, persecution on the grounds of race, religion, culture, gender or ethnicity, disappearances that are forced by the state and systemic attack on civilians. In short what the Rome Statute has done is extend the crimes that contained in a warfare situation to a non-warfare situation, i.e. if the state or political leader commissions such crimes it is contravening international humanitarian law, which results in criminal liability. The other crimes that the ICC deals with are genocide and crimes of aggression against other states or even between factions within the states. However the key factor of prosecutions by the ICC relies on actions by the state, it does not take into account non-state actors, such as corporations; therefore limiting its power and authority. The ICC seems more interested in the actions of states as opposed to other actors, which is primarily to do with the fact other organizations are not signatories to the UNDHR. At the moment the ICC has only investigated four states and is taking action against three, which are Uganda, the Congo and the Dafur in the Sudan and the process is lengthy and it is questionable it will sanction the ring leaders as opposed to causing more harm to the poverty stricken. This follows the problems with many international human rights law; for example if one is a large company they should not be able to abuse human rights, such abuses will be dealt with by domestic courts if they are properly protected; however in developing nations where economics outweigh the individual’s rights then these abuses go unchecked. This is partially the liability of the state which should be properly prosecuted; however the transnational corporation should also be held liable for their role in the abuses. Human rights and crimes against humanity will not be properly protected until companies who commit, initiate or support individual state’s and political leader’s actions that result in crimes of humanity are held criminally liable. It seems to fail to bring many cases because it includes crimes under the genocide convention and these are primarily brought under national courts and not the ICC, which is its domain since 1998. In addition to local tribunals that the UN sets up in post-war areas, so the ICC is not really performing the duties it was set up to do and focuses too much on the state. Prior to the ICC domestic courts brought actions under the genocide convention and focused on the criminals and seemed to be successful. The most famous or infamous examples are those of ex-Nazi Officers after their acts during the concentration camps in Nazi occupied areas of Europe. The conviction of these officers after the war seemed straight forward as with the cases of Knochen[1] and Oberg[2] Yet the conviction of officers today is still hard under the convention, one example is the case of Imre Fitte in an Ontarian Court in Canada, where the crime was kidnapping and slaughtering Jews in 1944 as a Nazi Officer.[3] Another problem fraught case dating back to Nazi Germany and the Canadian courts is the case of Oberlander; whereby the government has tried to deport Oberlander because of his involvement with the Nazi death squads and the evidence has shown he lied about his innocence, but still has not been convicted of the crime due to legal technicalities:

The government is trying to deport Oberlander, 78, after a Federal Court judge found he lied about his involvement with the death squad when he applied to emigrate from Germany in the early 1950s. Cabinet paved the way for his expulsion by stripping him of Canadian citizenship last year. But, as has been the case since proceedings against Oberlander began more than seven years ago, his fate remains unclear amid legal wrangling. Lawyers for Oberlander are seeking a judicial review of the cabinet decision, arguing it was flawed. They are also trying to have deportation proceedings put on hold until that issue is settled. The immigration hearing in Toronto was allowed to resume yesterday — it was suspended almost a year ago — but board member Carmen DeCarlo can’t make a deportation order until a related appeal has been decided.[4]

Yet there are successful cases where an individual is prosecuted for genocide, such as another Canadian Case of Leon Mugesera who was convicted of inciting genocide in Rwanda in a speech given in 1992, this resulted in a deportation order back to Rwanda; however Mugesera is still on appeal in Canada.[5] The most famous example of a successful genocide case is the one of Pinochet in Chile; whereby his immunity was lifted and his has been found guilty of this crime with ten other cohorts.[6] In the UK domestic courts held that officers of former Yugoslavia were guilty of the crime of genocide, which seems to be a situation that mirrors the horrors of Nazi Germany:

Friday’s military court finding in the central Serbian town of Nis jailed Lt. Col. Zlatan Mancic for seven years and Capt. Rade Radivojevic for five years on charges of ordering two soldiers to kill two Albanians during the conflict in April 1999.[7]

Therefore there has been mixed success with respect to genocide in domestic court, especially with the necessary requirement of men rea. If one considers the International Criminal Tribunal of Rwanda’s (ICTR) actions in respect to the genocide in Rwanda only eleven persons have been found guilty of the crime of genocide, which illustrates that there are problems with prosecuting under the convention as a lot more persons were involved in this bloodbath. In the ICTR cases of Ruggiu[8] and Serushago[9] their guilty pleas were seen as mitigating circumstances and the sentences were more lenient for helping to exterminate persons of another race? Therefore the law seems to be focused on the mindset of the potential accused rather than the atrocities committed by their acts. Another problem with the Genocide Convention is that it needs to be either upheld in a domestic court or by a international tribunal; however to have an international tribunal it needs to international in nature as illustrated in the Tadic case where there was movement for dismissal as it was argued that the International Criminal Tribunal of Former Yugoslavia (ICTY) had no jurisdiction as it was a domestic conflict.[10] The tribunal ruled in the broadest manner and ensured that its jurisdiction was upheld; however this illustrates the deficiencies of current international law, i.e. it needs to take in the actions of civil society and the domestic not just focus on the role of state actors, as the ICC is too focused upon. It needs to learn from the past deficiencies rather than to perpetrate these problems.

LCIA & ICSID Fairness in Private International Law:

The LCIA deals with commercial disputes and provides a forum for individuals to turn to when a commercial agreement crosses borders. The LCIA follows the law of private international law and does not bring the confusing factors of regime shopping; rather arbitration process relies on the just route. Here are the basic rules of arbitration:

The LCIA arbitration rules are universally applicable. They offer a combination of the best features of the civil and common law systems, including in particular:

  • maximum flexibility for parties and tribunals to agree on procedural matters
  • speed and efficiency in the appointment of arbitrators, including expedited procedures
  • means of reducing delays and counteracting delaying tactics
  • tribunals’ power to decide on their own jurisdiction
  • a range of interim and conservatory measures
  • tribunals’ power to order security for claims and for costs
  • special powers for joinder of third parties
  • fast-track option
  • waiver of right of appeal
  • costs computed without regard to the amounts in dispute
  • staged deposits – parties are not required to pay for the whole arbitration in advance[11]

Therefore the aim is to make disputes easier to resolve, without going through a domestic legal system that gives one party over the other an advantage. This introduces the problem of regime shopping that the independent forum of the LCIA would resolve.

[The] possibility of “shopping around” for suitable legislation is often said to be most influential since the other elements depend on the controversial aim of deepening European integration. It is possible that the United States situation may be a precedent. In the United States individuals are free to incorporate under the laws of any state since the location of the company is not relevant.[12]

This has caused problems because justice is not being served; rather powerful players are breaching the rules of justice to win their case under the most favorable regime. In the EU this has been seen in the Centros Decision[13], which has been condemned for putting economic interests above the interests of justice. This decision was based around the requirements of registration and trade within Denmark, which raised an issue of conflict between the laws of the UK, Ireland and the Netherlands whereby a properly registered foreign company is to be recognized; whereas Nordic law depends upon registration and whether refusal of registration was permissible to stop the circumvention of national law. The ECJ decided that this refusal went against the principles of competition law, which resulted in regional competition law outweighing domestic law therefore undermining the sovereignty of the state. The aim of the two Danish nationals by registering their company Centros in the UK and then transferring to Denmark was purely to circumvent the fee associated with registration. The question was whether the Danish court could refuse registration in Denmark because the aim was to defraud the Danish state; the ECJ advised that refusing registration was imposing an obstacle of the basic freedoms that make up company law. This case basically has caused competition law to become prevalent over national concerns. In fact it has possibly weakened the regulations of company law so that social and cultural policies will soon be under fire. This seems to be falling under the trap of companies for regime shopping, i.e. the weaker the regulation the higher the investment. In this case the act of defraud was not taken into account, the Danish nationals set out to misuse EU competition law to abuse the requirements of Danish national law. The Centros decision belies this inevitability; however the problem with such lax laws is that they equate to easier exploitation and perfect for regime shopping for the powerful player in the dispute. This breaches fairness and just rules of law, therefore illustrating the importance of the LCIA. In fact this institution should become the primary organization to deal with international company disputes rather than relying on competing law in domestic regimes. The problem is that unlike the ICC and ICSID it is a voluntary arbitration resolution organization and should be set up through International Convention to deal with these specific disputes.

This approach is mirrored by the ICSID, which was set up through states contracting similar to the ICC as an independent branch of the World Bank, but is more concerned with dealing with the problems of individual companies rather than focusing on just state to state problems:

The International Centre for Settlement of Investment Disputes (ICSID or the Centre) is a public international organization created under a treaty, the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (the ICSID Convention or the Convention). The Convention was formulated by the Executive Directors of the World Bank and submitted by them on March 18, 1965 to member States of the Bank for consideration with a view to signature and ratification. The Convention, entered into force on October 14, 1966.[14]

The aim of this arbitration is to ensure that parties are treated fairly and the stronger power does not take advantage of the position. This is especially important in respect to transnational companies who have an economic advantage over a developing country who needs the investment.[15] Therefore like the fair minded approach of the LCIA it provides an independent place of arbitration that deals with the real problems in state and foreign direct investment and takes away the problem of domestic rules and laws that would clash otherwise. This can be seen in the following exploration of state contract and private international cases, which cause a problem to determining a fair verdict or resolution in domestic courts.

In the case of Serbian Loans[16] any contract that is not a contract between states in their capacity as subjects of international law is based on the municipal [domestic] law of some country… The rules thereof may be common to several states and may even be established by international conventions or customs, and in the latter case may possess the character of true international law governing relations between states.[17] Therefore when it comes to investment contracts between states then it will have elements of adhering to the contractual word of the agreement; as well as the duty of care that the obligations are met as in public international contractual agreements. There has been a suggestion that cases that are on a private international matter allows the domestic court that makes the decision have an extraterritorial effect in imposing the obligation across borders, i.e. applying the higher standard of obligation and care that public international law holds.[18] On the other hand, the case of Holmes v Bangladesh Biman[19] argued that foreign jurisdictions have no legitimate reason for subjecting their civil law on foreigners in their own country. Therefore these two cases make it difficult for correctly pursuing fraud, negligence or any circumstance that leads to an action when it is a case of foreign investment, i.e. where would you make the action and could you legally serve and enforce the action papers in foreign jurisdiction. There is a possibility by using international treat formalities such as the Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil and Commercial Matters[20] and the Convention of the Taking of Evidence Abroad in Civil or Commercial Matters[21]. There are safety clauses for states to protect its sovereignty under private international law, as this is a major factor in any treaty under public international law, which was used in the case of Westinghouse v Rio Tinto Zinc[22] where the request fell outside the ambit of the treaty and enabled the UK court to 12(b) of the Convention on Service to deny the request because it impinged on the sovereignty of the UK. The Lotus Case[23] reaffirms the basis of public international law in private international law, which is preserving the sanctity of a state’s sovereignty. Therefore creating difficulties in actions between parties in respect to foreign investment as this falls within the jurisdiction of the offended party’s state, which may not extend to the other party’s state. The case of Nationality Decrees in Tunis and Morocco [24] questions the legitimacy of this approach and introduces the subject of international relations and treaties, i.e. international public law; whereby contractual obligations between states should be fulfilled and only in extreme cases impinged upon. Therefore from an investment perspective, which may be third parties the question of extending jurisdiction should be upon the legality of the contract between the two parties and if the contract was between the two states how the obligations and duty of care would be resolved? The ICJ does not deal with such subject matter and has on occasion had to determine domestic or international jurisdiction in the case of Certain Norwegian Loans[25] where it was decided that it was the jurisdiction of the domestic court. On the other hand, similar facts in the Serbian and Brazilian Loans Cases[26] were held to be an international dispute for the ICJ to settle. This creates a difficult situation for states to understand the extent of private investment matters because its obligations may or may not be held at the normal level of private contract law or the higher level of public international contractual obligations. Therefore the ICSID deals independent with the problems between states and companies that want to invest directly in a given state; whereas the LCID deals with the conflicts between companies that are in different states. In both cases it is a lot more successful.

Conclusion:

Unlike the war crime and human rights arbitration it is a lot more successful to have an international place of arbitration and tribunal for commercial and foreign investment conflicts, as it reduces the problems with state sovereignty and regime shopping. The problem with the ICC is the limitations that the contracting states have placed upon it. It needs to be a lot more proactive and have the powers to deal not just with states, but also actors that assist in human rights abuse. At the moment the ICSID system is the best because it has the backing of International Convention and resolves problems in competing International Private Law systems within states. The LCIA is a voluntary organization, which is a good system but needs to be supported by an International Convention such as the ICSID. The ICC has this International Convention support but has failed on the grounds that its jurisdiction is too limited and previous domestic prosecutions and UN tribunals are much more effective. It would be more effective if it could deal with all actors that cause or have a role in gross human rights violations, because the ICC is not living up to its basic premise:

The International Criminal Court (ICC)is the first ever permanent, treaty based, international criminal court established to promote the rule of law and ensure that the gravest international crimes do not go unpunished.[27]

Bibliography:

Arab Regional Office (2004) Quarterly Report, Office of the High Commissioner for Human Rights, Beirut, Lebanon, March 2004 found at: http://www.unhchr.ch/html/menu2/5/arab-mar04.doc

Bagheri, 2004, Competition and Integration among Stock Exchanges: The Dilemma of Conflicting Regulatory Objectives and Strategies, OLJS 24(69)

Bananalink, Banana Trade Wars can be found at: http://www.usleap.org/Banana/bananatempnew.htm#tradewars

B.R. Barber (1995) JIHAD v McWorld: How Globalism and Tribalism is Reshaping the World, New York, Times Books

Catherine Barnard, 2000, Social Dumping And The Race To The Bottom: Some Lessons For The European Union From Delaware E.L. Rev. 2000, 25(1), 57-78

P. Craig, G. De Burca (1999) The Evolution of EU Law, Oxford, Oxford University Press

R.K. Gardiner (2003) International Law, Harlow, England, Pearson

Laurent Garzaniti. David Pope, 1993, Single Market-Making: EC Regulation Of Securities Markets Comp. Law. 1993, 14(3), 43-54

ICC, About the Court, can be found at www.icc-cpi.int

ICSID, Cases, can be found at: http://www.worldbank.org/icsid/cases/cases.htm

International Law Commission, 1996, Chapter Three – State Responsibility can be found at http://www.un.org/law/ilc/reports/1996/chap03.htm

LCIA, Arbitration Rules can be found at: www.lcia-arbitration.com

Prevent Genocide’s website at: http://preventgenocide.org/punish/domestic/index.htm#europe

Siems, 2003, Convergence, Competition, Centros and Conflicts Of Law: European Company Law In The 21st Century, E.L. Rev. 2002, 27(1), 47-59

N.E. Simmonds, Introduction in W.N Hohfeld (2001),

Syrpis, 2001, Smoke without Fire: The Social Policy Agenda and the Internal Market, ILJ 2001(30)

UN Mission in Iraq (UNIKOM) can be found at: http://www.un.org/Depts/dpko/missions/unikom/

K. Waltz (1991) America as a Model for the World? PS: Political Science and Politics: 24(4)

M. Waters (1995) Globalization, London, Routledge

Weiler, 1999, The Constitution of the Common Market Place: Text and Context in the Evolution of the Free Movement of Goods in Craig & De Burca (eds), 1999, The Evolution of EU Law, Oxford University Press, Oxford

Worldwatch Institute (2004) State of World 2004: Progress Towards a Sustainable Society, London, Earthscan

UN, Rome Statute of the International Criminal Court, Some Questions and Answers, found at: http://www.un.org/law/icc/statute/iccq&a.htm

United Nations Press Releases, Roman Statute of International Criminal Court, ESCWA, July 2nd 2002 found at: http://www.escwa.org.lb/information/press/un/2002/july/02_2.html

UN website, ICTR, can be found at: http://www.ictr.org/default.htm

UN website, ICTY can be found at: http://www.un.org/icty/


[1] Reported on Prevent Genocide’s website at: http://preventgenocide.org/punish/domestic/index.htm#europe

[2] Reported on Prevent Genocide’s website at: http://preventgenocide.org/punish/domestic/index.htm#europe

[3] Reported on Prevent Genocide’s Website at http://preventgenocide.org/punish/domestic/index.htm#americas

[4] Reported on Prevent Genocide’s Website at http://preventgenocide.org/punish/domestic/index.htm#americas

[5] Reported on Prevent Genocide’s Website at http://preventgenocide.org/punish/domestic/index.htm#americas

[6] Reported on Prevent Genocide’s Website at http://preventgenocide.org/punish/domestic/index.htm#americas

[7] Reported on Prevent Genocide’s website at: http://preventgenocide.org/punish/domestic/index.htm#europe

[8] UN website, ICTR, can be found at: http://www.ictr.org/default.htm

[9] UN website, ICTR, can be found at: http://www.ictr.org/default.htm

[10] UN website, ICTY can be found at: http://www.un.org/icty/

[11] LCIA, Arbitration Rules can be found at: www.lcia-arbitration.com

[12] Siems, 2003, Convergence, Competition, Centros and Conflicts Of Law: European Company Law In The 21st Century, E.L. Rev. 2002, 27(1), 47-59

[13] Centros Ltd v Erhvervs-og Selskabsstyrelsen (C212/97) [2000] 2 W.L.R. 1048 (ECJ)

[14] ICSID, Cases, can be found at: http://www.worldbank.org/icsid/cases/cases.htm

[15] Tesoro Petroleum Corporation v. Trinidad and Tobago (Case No. CONC/83/1)

[16] France v Serbia (1929) Series A Nos 20/21

[17] Ibid

[18] Deutsche Schachtbau v Shell International [1990] 1 AC 295

[19] [1989] 1 All ER 852

[20] The Hague, 1965, UKTS 50

[21] The Hague, 1970, UKTS 20

[22] [1978] AC 547

[23]France v Turkey [1927] PCIJ Series A No 10

[24] (1923) Series B No 4

 

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