The conflicts issue in transnational business human rights claims, and a possible way forward under Rome II – Josephine Dooley

This article assesses the recent proposal by the European Parliament’s Committee on Legal Affairs to allow a plaintiff bringing a human rights claim against an EU company in an EU Member State, instead of their home State, to be able to select the law applicable to the claim. An international human rights law perspective is applied to the proposed solution to a growing private international law issue.

In what forum can a victim of a human rights violation committed by a multinational enterprise most effectively seek reparations? A recent proposal for the European Union (EU) on this issue has caused quite a stir, and Switzerland has just voted against holding businesses liable for human rights and environmental claims in a referendum.

Despite the existence of international human rights law instruments addressing corporate misconduct and human rights, namely the United Nations (UN) Guiding Principles on Business and Human Rights (‘UN Guiding Principles’), under general international law multinational companies are subject to rights but not obligations. International instruments, therefore, cannot impose international human rights obligations on such actors.

Accordingly, domestic law, including its rules of private international law, determine to what extent corporations may be held accountable for human rights violations. Human rights claims against multinational enterprises are typically actioned as a claim in tort against the subsidiary company as well as the parent company, which is ordinarily incorporated in another State. Normally, being able to claim against the parent company is fundamental in ensuring victims receive proper reparations, as the parent company is typically the defendant with sufficient assets. Accordingly, victims are increasingly commencing proceedings in the courts of the jurisdiction in which the parent company is incorporated – typically Western jurisdictions such as the United Kingdom (UK), the Netherlands and Australia.

The success of a claim heard by a court of the parent company’s domicile is greatly influenced by how that court determines two questions of private international law: (i) should the court exercise jurisdiction over the claim; and (ii) what law should be applied to determine the claim?

Developing an approach to the legal review of Autonomous Weapon Systems – Lauren Sanders and Damian Copeland

A fundamental question driving the international debate concerning the regulation of Autonomous Weapon Systems (AWS) (AWS definitions here and here) is whether they can be used in compliance with international law. While state legal reviews of new weapons are important tools to ensure the lawful use of AWS, their utility is challenged by limited state practice and the absence of standard review methods and protocols. However, done properly, state legal reviews are a critical mechanism to prevent the use of inherently unlawful AWS, or, where necessary, restricting their use in circumstances where they cannot predictably and reliably comply with international humanitarian law (IHL).

All states are required to undertake legal reviews of new weapons either because of an express obligation under Article 36 of the Additional Protocol I to the Geneva Conventions, or to give effect to a broader IHL requirement to ensure the lawful use of weapons in armed conflict. While international law does not require a particular review methodology to be used, the rapid changes to technology that enable autonomy—such as Artificial Intelligence and machine learning—raise the question of how states can practically conduct legal reviews of weapons that are enhanced by such technology.

The Singapore Mediation Convention vs the New York Convention: Same difference? – Kevin Tan

This article compares the Singapore Mediation Convention to one of the most successful United Nations treaties to date, the New York Convention, and provides some tips to parties to assist them in determining which Convention they should use to enforce their mediated settlement agreements.

Introduction

The United Nations Convention on International Settlement Agreements Resulting from Mediation, better known as the Singapore Mediation Convention (SMC), came into force on 12 September 2020.

The SMC provides a framework to directly enforce the terms of a mediated settlement in Contracting States without the need to commence fresh proceedings. It applies to settlements that (a) have resulted from mediation, (b) have been concluded in writing, (c) concern a commercial dispute, and (d) are international (see Article 1 of the SMC). Prior to the SMC, a party who wanted to enforce a mediated settlement agreement would have had to do so either through litigation or arbitration – both of which entail substantial costs and time.

The SMC has been lauded as a ‘game-changer’ and described by Singapore’s Prime Minister Lee Hsien Loong as the ‘missing third piece’ in the international dispute resolution enforcement framework (apart from litigation and arbitration). The SMC currently has 53 signatories including the United States, China and India, and has been ratified by six countries including Ecuador, Fiji, Qatar and of course, Singapore.

Unsurprisingly, given the similarities between the SMC and the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, more commonly known as the 1958 New York Convention (NYC), which provides a framework for cross-border enforcement of arbitral awards, the SMC has been touted as the mediation-equivalent of the NYC. Pertinently, as the SMC does not apply to mediated settlement agreements that are enforceable as arbitral awards, parties who choose to mediate their cross-border disputes will still have a choice of enforcement under the NYC or the SMC (see SMC Article 1(3)(b)). This begs the following questions: (a) what are some of the significant differences between the SMC and NYC, and (b) what are the implications of such differences? This blog post seeks to explore these questions and provide some observations and practical tips to assist parties to determine which Convention to utilise to enforce their mediated settlement agreements.

Significant differences between the SMC and NYC

First, the success of any international convention depends on its uptake. In this regard, the coverage of the NYC is currently considerably more extensive than the SMC. This is to be expected given that it is still early days for the SMC. While it is promising that major economies such as the United States, China and India have already signed the SMC, some countries appear to be adopting a wait and see approach to determine if the SMC gains sufficient traction. Notably, key players such as the European Union, the United Kingdom and Australia have yet to sign the SMC. In the meantime, businesses who wish to utilise mediation as a dispute resolution mechanism may still rely on hybrid provisions such as med-arb and arb-med-arb, which allow settlement agreements reached through mediation to be enforced by way of an arbitral award.

Second, unlike the NYC, the SMC does not operate on the basis of reciprocity. One should therefore not assume that the SMC will not apply to a mediated settlement agreement conducted in a state which is not a signatory to the SMC because a mediated settlement agreement can be recognised and enforced in any contracting state to the SMC.

Third, while there are similar grounds of refusal to grant relief under the SMC (Article 5) to those under the NYC (Article V), there are different grounds as well. In particular, there are two grounds for refusal of enforcement under Article 5 of the SMC which have no NYC-equivalent that are worth highlighting:

Article 5(1)(e) which provides that relief may not be granted if there was a ‘serious breach by the mediator of standards applicable to the mediator or the mediation without which breach that party would not have entered into the settlement agreement’.

Article 5(1)(f) which refers to a ‘failure by the mediator to parties to disclose to parties circumstances that raise justifiable doubts as to the mediator’s impartiality of independence’.

There are uncertainties in the new grounds of refusal. For instance, what are the ‘standards applicable to the mediator or the mediation’? Whilst in international arbitration there are well-established guidelines for arbitrators, such as the International Bar Association Guidelines on Conflicts of Interest in International Arbitration, there are no clear guidelines for mediators which are used equally extensively. As regards Article 5(1)(e) and (f), there is also no definition of what constitutes a ‘serious breach’ or ‘justifiable doubts’ respectively. That the abovementioned grounds have no NYC-equivalent is significant because one cannot look to the jurisprudence of the NYC for guidance or as a reference point in relation to the abovementioned uncertainties. Rather, one would have to monitor developments in domestic law, guidelines set down by international bodies and/or interpretations found in case-law, which would hopefully provide added clarity on these areas in time.

Fourth, in contrast to the NYC which regulates both arbitration agreements and arbitral awards, the SMC does not regulate the enforcement of agreements to mediate. The implication is that a party who wishes to enforce an agreement to mediate will have no recourse under the SMC, and will have to look to domestic legislation of the enforcing state instead (for example section 8 of the Singapore Mediation Act 2017, which allows for the enforcement of agreements to mediate).

Fifth, a significant feature of the SMC is a reservation provision under Article 8(b) which allows Contracting States to declare that they will apply the SMC only to the extent that the parties to the settlement agreement have agreed to the application of the SMC. Commentators have stated that this reservation clause has the potential to limit the overall extent to which the SMC will apply globally. Given that the place of enforcement may not always be clear at the time a settlement agreement is entered into, it would be prudent for users to expressly stipulate the application of the SMC in their agreement in order to take advantage of the SMC for enforcement purposes.

Conclusion

With the increase in transnational disputes arising from the growth in international trade, users can only benefit from more options to resolve their disputes. After all, there is a wide spectrum of transnational disputes and some may be better suited for mediation whereas others arbitration (or even litigation).

The SMC is to be welcomed for elevating mediated settlement agreements to a sui generis status comparable to arbitral awards. In so doing, the SMC has provided a crucial boost to the legitimacy of mediation as a dispute resolution mechanism. Businesses and practitioners should monitor developments relating to the SMC as highlighted above closely. It is hoped that the SMC will be widely adopted and be able to rival the NYC in relation to the extent of application in time to come.

Kevin Tan is a partner in Rajah & Tann Singapore LLP. He practices international arbitration and commercial litigation. He acts as counsel in mediations and is an accredited mediator with the Singapore Mediation Centre.

Event: ILA (Australian Branch) End of Year Event, 2 December 2020

The International Law Association (Australian Branch) is hosting an end of year event featuring Professor Philippa Webb, King’s College London on the following topic: Swaying or straying? Australia’s influence on freedom of expression and the right to a fair trial in international law.

Philippa Webb is Professor of Public International Law at King’s College London. She joined The Dickson Poon School of Law in 2012 after a decade in international legal practice. She was previously visiting Assistant Professor in the Advanced LLM Programme at Leiden University (2009-2011). She has been Visiting Professor at Université Paris X Nanterre, ESADE Law School and Pepperdine University’s London programme.

In recent studies of geopolitical influence, Australia has been labelled a ‘hemispheric power’, more influential than India and Russia. There is also a long held view that Australia is a ‘middle power’ than can ‘punch above our weight’. By focusing on Australia’s influence on two critical protections – freedom of expression and the right to a fair trial – I will examine whether Australia is shaping international law (swaying) or forging its own, potentially violative path (straying). I will distil some of the key debates in international law and identify Australia’s contribution to the law through its state practice and the jurisprudence of international human rights bodies.

The event will be held on Wednesday 2 December 2020 from 8:00 AM to 9:00 AM CET via Zoom and is free of charge. Registration is essential and may be done through this link.

International Law, Australia, and the Antarctic – Ankit Malhotra

Antarctica, one of the world’s last great wildernesses, presents special challenges for international law. Fears that Antarctica would become a front in the Cold War catalysed agreement on the 1959 Antarctic Treaty which neither legitimised nor challenged the existing sovereign claims to the continent. The unique Antarctic Treaty System has provided the foundation for peaceful, harmonious, and effective governance. There are, however, new anxieties about the frozen continent and the Southern Ocean. Antarctica already feels the effects of climate change and ocean acidification. Claimant states assert rights to the Antarctic continental shelf and interest in Antarctic resources grows. Tourism brings new environmental and safety risks. China and other powers are increasing their activities, with some questioning the consensus of the ‘Antarctic club‘. Security concerns are increasingly discussed, despite Antarctica’s dedication to peaceful purposes. As visible, the law applicable to Antarctica has constantly adapted to meet new challenges and is a sophisticated, inclusive, dynamic, and responsive regime. Throughout history, countries have been wishing to claim it and expand their empires, even if that means overlapping territorial claims. The expansion was the heartbeat of Imperialism and during the Age of Imperialism and colonisation, the following claimants expressed keen interest. The Antarctic claimants are Chile, Argentina, the United Kingdom, Norway, Australia, New Zealand, and France. Nonetheless, there is left a section of unclaimed land, which is also the largest unclaimed section of land on earth. Most of these claims are recognized only by other claimants and not by the broader international community.

Remedies And The Role Of Corporations: Learning From The Jukaan Gorge Explosion – Justin Jos

This piece examines whether business-driven remediation processes, such as Operational-level Grievance Mechanisms, should allow corporations to act as the remedy provider in cases of corporate human rights abuse.

Introduction

The blowing up of a cave in Jukaan Gorge by mining giant, Rio Tinto, for expansion of an iron ore mine in the Hammersley Ranges of Western Pilbara, caused huge public outrage in Australia and across the globe. Some experts argued that the act of blowing up the cave was within the law while pointing out the deficiencies in the current local laws, especially Western Australia’s Aboriginal Heritage Act 1972. One deficiency in the Act is the absence of a statutory requirement ensuring traditional owners be consulted on matters pertaining to cultural heritage. As a fallout of the blast and growing investor pressure, the CEO of Rio Tinto along with two other senior executives had to resign from their positions. This step was welcomed by the National Native Title Council and hailed as the “first step to recovery”. After the announcement of a Senate inquiry and a visible public relations crisis, Rio Tinto pledged to conduct a review of its heritage management processes and subsequently released a document titled “Board Review of Cultural Heritage Management.” In this document, Rio Tinto expressed its unreserved apology and highlighted the priorities for change in its heritage management processes, including working closely with the traditional owners of the land, the Puutu Kunti Kurrama and Pinikura people (PKKP). However, the fact of the matter was that the damage had been done and the Aboriginal site lost. The remedy offered for heritage destruction was largely corporate driven with limited involvement of the state. The idea of inclusion of the corporate actor as part of the solution to a corporate wrongdoing is not novel. The United Nations Guiding Principles on Business and Human Rights (UNGPs) provide some guidance on this. In the UNGPs, the notion of providing remedies through business-driven remediation processes is known as Operational-level Grievance Mechanisms (OGMs). The theoretical underpinning for OGMs is enshrined in Principle 29 of the UNGPs where it states that “business enterprises should establish or participate in effective operational-level grievance mechanisms.”

An inevitable reform, a long awaited solution: The establishment of the Australian Foreign Investment Regulatory Authority (AFIRA) – Bovas Johannan

The compliance framework under the Australian foreign investment regime undertaken by both the Foreign Investment Review Board (FIRB) and the Australian Taxation Office (ATO) are currently under the microscope for their lackadaisical approach in achieving the outcomes expected of a compliance framework.

In 2014, the report on foreign investment in residential real estate by the House of Representatives Standing Committee on Economics provided a rather scathing assessment of the FIRB in the following words:

“In practice the framework has been undermined due to poor data collection, along with a lack of audit, compliance and enforcement action by FIRB. Australians are entitled to expect that the rules are properly enforced and our committee recommendations strengthen the ability to do this.”

In 2020, not much has changed. The Productivity Commission shares a similar view while considering the spillover impacts of foreign investment:

On the negative side, competition from efficient foreign businesses can result in some Australian firms going out of business, and there are ongoing worries about whether investors generate negative social and environmental spillovers by not adhering to domestic regulations.

Having a robust compliance and enforcement mechanism in the post-COVID-19 era is important not only for delivering a system that arrests the flow of Australian fiscal resources—say in the form of tax evasion by deliberately restructuring companies to avoid Australian taxation liability— and intellectual property rights into foreign hands, but also for sending a message out to the investors that the investments will have solid legal endorsement in Australia and that predatory moves will not be tolerated.

Nuclear weapons have always been inhumane and unacceptable, soon they will be illegal – Tilman Ruff

On Saturday 24 October 2020, Honduras brought the number of nations ratifying the United Nations Treaty on the Prohibition of Nuclear Weapons (‘TPNW’) to 50. This milestone means that after 90 days have elapsed, on 22 January 2021, the treaty will enter into legal force, becoming international law and binding on the states that have ratified it, and all those which ratify in future. The treaty will, however, stigmatise nuclear weapons for all states, whether or not they join the treaty.

It is fitting that 24 October also marked the 75^th anniversary of the founding of the UN, ‘determined to save succeeding generations from the scourge of war’. The very first resolution of the UN General Assembly, on 24 January 1946, established a commission to develop a plan for the elimination of atomic weapons.

This is a historic achievement and an enormous win for humanity and planetary health. Outlawing nuclear weapons is an essential step towards eliminating them, which is the only reliable way to prevent their use.

Australians can take particular pride and encouragement from this achievement. The International Campaign to Abolish Nuclear Weapons (‘ICAN’) was founded in Melbourne by the Medical Association for Prevention of War in close collaboration with International Physicians for the Prevention of Nuclear War (‘IPPNW’). ICAN became the leading civil society coalition working with the majority of the world’s governments to conclude the TPNW. For this work, in 2017 ICAN became the first Australian-born entity to be awarded the Nobel Peace Prize.

This effort involved many partners. Crucial among them was the world’s largest humanitarian organisation, the Red Cross/Red Crescent Movement, and particularly the International Committee of the Red Cross, which provided substantive input to many aspects of the treaty.

Could the Rome Statute apply to those responsible for the Israeli settlements in the West Bank? – Simon McKenzie

It has been over 50 years since the beginning of the Israeli occupation of the Palestinian territories. It is estimated that there are approximately 750,000 Israeli settlers living in the West Bank and East Jerusalem, and they are supported, protected, and maintained by the Israeli state. Simon McKenzie’s new book discusses whether international criminal law could apply to those responsible for allowing and promoting the growth of these settlements, and examines what this application would reveal about the operation of international criminal law.

In December 2019, Fatou Bensouda, the Prosecutor of the International Criminal Court (ICC), announced that there was enough evidence to open an investigation into alleged Israeli and Palestinian war crimes in the West Bank, East Jerusalem and the Gaza Strip. One of the most consequential parts of this investigation will be examining whether those responsible for promoting and maintaining the settlements in East Jerusalem and the West Bank – where an estimated 750,000 Israelis currently live – should be held criminally responsible under the Rome Statute. This raises complex legal questions, demonstrating the challenges of incorporating some parts of international humanitarian law (IHL) into international criminal law.

My book examines how the Rome Statute applies to the settlements in the West Bank through a close examination of two relevant Rome Statute crimes: the war crime of the transfer of population, and the war crime of unlawful appropriation of property. The crimes are based on international humanitarian law, and more specifically, the Fourth Geneva Convention prohibition on the transfer of population of the occupying power into occupied territory, and the 1907 Hague Regulations rules on the management of property during an occupation. The analysis shows that while the crime of transfer of population is a suitable vehicle for a prosecution, the lack of clarity in the underlying law will make the crime of appropriation of property much harder to prosecute.

Representation as Gender Justice: Gender in the ICC’s Prosecutorial Election – Natalie Hodgson

This piece examines recent developments in the election of the International Criminal Court’s third Prosecutor with a focus on gender issues, in particular, the underrepresentation of female candidates and the vetting of candidates to ensure that they do not have a history of sexual harassment.

At the 2020 Assembly of States Parties meeting, States will elect the third Prosecutor of the International Criminal Court (ICC). At a time when the ICC is faced with increasing challenges, including hostile attacks from States, investigations into politically sensitive situations and limited financial and personnel resources to carry out its mandate, the decision on who will best serve the Court as Prosecutor for the next nine years is particularly significant.

The election has been far from uneventful. After establishing a Committee on the Election of the Prosecutor (CEP) to receive applications, interview candidates and produce a shortlist for States to consider, there has been frustration with that shortlist, with Kenya arguing that the list is skewed in favour of a particular candidate. The deadline for the nomination period has been extended twice, with the most recent indication being that States are unable to reach a consensus on the shortlisted candidates and are considering introducing other candidates, possibly from the CEP’s longlist.

Among these developments, gender issues have also featured significantly. This piece discusses two such issues and provides some suggestions for how they can be addressed in the short and long term – first, the underrepresentation of women among candidates nominating for the position of Prosecutor, and second, the vetting of candidates to ensure that they do not have a history of committing, condoning or ignoring sexual harassment.