Call for Applications – Editor and Assistant Editor Positions

What is the ILA Reporter?

The ILA Reporter is the official blog of the International Law Association (Australian Branch).

The ILA was founded in Brussels in 1873. It has consultative status, as an international non-governmental organisation, with a number of the United Nations specialised agencies. You are invited to sign up as a member here.

The ILA Reporter provides leading analysis, commentary and discussion on current issues in public and private international law, which have bearing on Australia and the wider region.

 

What are the roles?

Editor

The Editor will work closely with the current Editor-in-Chief, to coordinate articles, help to run monthly meetings, and update the blog website (training is provided, and it is quite easy to learn, regardless of technical ability). The successful candidate will also liaise with the International Law Association (Australian Branch) National Committee.

Assistant Editor

Assistant Editors’ role is to support the Editors by commissioning, editing and publishing articles for the Blog. They will be required to either source and edit at least one article per month, or write one article themselves.

Assistant Editors and the Editor will be engaged on a voluntary basis. These positions are a one-year commitment. Both roles are a great opportunity for those looking to gain experience in the field of international law with a well-respected NGO that has an established network of experienced international lawyers in Australia.

 

Are you a suitable candidate?

Candidates will be at least in their penultimate or final year of a law degree or studying a law masters degree. They must have taken an international law course or have equivalent experience during their degree. Legal practitioners may also apply.

Strong written communication and legal research skills are essential.

 

How do you apply?

Please send a statement of interest (200 words max.), copy of your CV, academic transcript and a sample of your written work (1,000 words max. of an essay extract/article) to the Editors at editor@ilareporter.org.au by 5pm AEST on Sunday 12 November 2017. We look forward to your enthusiastic responses.

Indian court intervenes in Vodafone investment arbitration against India – Ishbel McLachlan

The Delhi High Court has temporarily restrained British companies Vodafone Group Plc and Vodafone Consolidated Holdings Ltd (together, “Vodafone“) from taking any further action in respect of a claim against India under the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of India for the Promotion and Protection of Investments (“UK-India BIT“): Union of India v Vodafone Group PLC United Kingdom & Anr. CS(OS) 383/2017.

The Court’s decision was made on the basis that an arbitration under the UK-India BIT would duplicate a claim already filed by Vodafone’s subsidiary Vodafone International Holdings BV (“Vodafone BV“) under the Agreement between the Republic of India and the Kingdom of the Netherlands for the Promotion and Protection of Investments (“Netherlands-India BIT“) and that the “natural forum” for the dispute was the Indian courts. The Court has asked Vodafone to respond to India’s request for a permanent anti-arbitration injunction by 26 October 2017 before any further orders are made.

Prior to its application to the Delhi High Court, India applied to the appointing authority in the second arbitration, the President of the International Court of Justice, to refuse to appoint an arbitrator as requested by Vodafone under the default procedure in the UK-India BIT. When this proved unsuccessful, India applied to the tribunal constituted under the Netherlands-India BIT requesting interim measures in the form of an order that Vodafone BV not take any further action in the arbitration against India under the UK-India BIT. The tribunal, however, determined that it did not have competence to grant India’s request for interim measures.

India then requested the same injunctive relief from the Delhi High Court. In determining India’s application on a temporary basis, the Delhi High Court found that Vodafone and Vodafone BV prima facie seem to be a single economic entity as both are within the same corporate group and are run, governed and managed by the same set of shareholders. The Court held that, as a result of this common control, the proposed second arbitration amounts to an abuse of process. Further, the Court found the relief sought in both arbitrations to be “virtually identical” and formed the prima facie view that the duplication of claims under different BITs creates a risk of parallel proceedings and inconsistent decisions by two separate arbitral tribunals. In these circumstances, the Court considered that it would be “inequitable, unfair and unjust” to allow Vodafone to pursue both arbitrations.

Vodafone’s dispute with India arises out of Vodafone’s purchase of Hutchinson Essar, a Hong Kong based entity, in 2007, which India says triggered Vodafone’s liability to pay India $2.1 billion in capital gains tax. Vodafone argued from the outset that it did not owe any tax to the Indian government on the basis that the transaction was between two non-Indian entities for a target asset which was registered in the Cayman Islands. When the Supreme Court of India found in favour of Vodafone’s argument, the Indian government enacted legislation permitting retroactive capital gains taxation on offshore share transfers. The arbitrations commenced by Vodafone and Vodafone BV, under the UK-India BIT and Netherlands-India BIT respectively, challenge the amendments to the Income Tax Act 1961 introduced with retrospective effect.

Before the Delhi High Court, India submitted that as taxation is a sovereign function, disputes regarding tax demands are outside the scope of investment arbitration and may only be resolved before a constitutional court of the host State. While the Delhi High Court did not make a final decision on the issue, the Court expressed the prima facie view that India is the “natural forum” for Vodafone’s claim. With respect, this approach is concerning, primarily because the claims made by Vodafone and Vodafone BV in their respective investment arbitrations against India concern India’s alleged breach of the fair and equitable treatment (“FET“) standard of the relevant BITs. A claim for breach of the FET standard under a BIT is a cause of action arising under international law and hence distinct from a challenge to India’s retroactive tax legislation under India’s domestic legal framework. While the constitutional court of India may be the natural forum for the latter, it is difficult to see how an Indian court would be the natural forum for India’s alleged violation of its obligations under international law.

Further, India’s approach – seeking an anti-arbitration injunction in its own national courts – is unusual. Ordinarily, when a State wants to challenge a claim brought before an international investment tribunal, the State will object to the jurisdiction of the tribunal or the admissibility of the claims made by the investor. These objections are made to the tribunal itself. Indeed, India’s main authority in support of its allegation that Vodafone’s second arbitration constitutes an abuse of process is an ICSID award determining a State’s objections to jurisdiction and admissibility (Orascom TMT Investments S.a.r.l. v People’s Democratic Republic of Algeria, ICSID Case No. ARB/12/35, Award dated 31 May 2017). Orascom reflects the principle that arbitral tribunals are empowered to, and ordinarily do, determine their own jurisdiction and the admissibility of claims put before them. In the case at hand, it would have been open to India to object to the admissibility of Vodafone’s claims before the UK-India BIT tribunal.

Recognising the deference usually afforded to an arbitral tribunal on matters of jurisdiction and admissibility, the Delhi High Court acknowledged that it had to “exercise great caution, while restraining foreign arbitration” and referred to the rule under Indian law as set out in the Indian Supreme Court decision Modi Entertainment Networks v WSG Cricket Pte Ltd (2003) 4 SCC 341 that a court of “natural jurisdiction” may issue anti-suit injunctions against foreign courts having exclusive jurisdiction if the foreign forum is “oppressive or vexatious“. However, in temporarily restraining Vodafone from taking any further action in respect of their claim under the UK-India BIT the Delhi High Court did not make any findings as to whether the arbitral tribunal constituted under the UK-India BIT was an “oppressive or vexatious” forum.

The Delhi High Court’s interim decision, therefore, raises concerns about the approach of Indian courts towards international investment arbitration. In particular, the Court’s intervention in this case seems to not give due regard to the distinction between obligations under domestic law and obligations under international law. If such an approach continues – including in the Court’s final decision in the case at hand – questions may be asked about the depth of India’s recent commitment to being an arbitration friendly jurisdiction.

Ishbel McLachlan is a Law Graduate at Clifford Chance in Perth.

The views expressed in this article are the author’s and not necessarily those of Clifford Chance or any other person or organisation with whom the author is affiliated.

International Law Update – The Conflict in Yemen, the International Criminal Court, and the Srebrenica Massacre

Yemen

Human Rights Watch called for the release of Yemeni activist Hisham al-Omeisy, whom Human Rights Watch claims has been detained by Houthi authorities. Human Rights Watch states that al-Omeisy was arrested by 15 officers on 14 August 2017 in Sanaa. They claim he has not been charged, brought before a judge or given access to a lawyer or his family, and that he is in an undisclosed location. Amnesty International has made a similar statement.

This follows 66 cases of arbitrary detention and enforced disappearances perpetrated by the Houthi forces, and many by the Yemeni government, as documented by Human Rights Watch. Arbitrary detention and enforced disappearances are both breaches of international human rights law.

There has been conflict between Houthi separatists, loyal to the former President, Saleh, and the Yemeni government led by Saleh’s former Deputy, Hadi, since 2015. A coalition of Sunni states, led by Saudi Arabia and backed by the USA and the UK, have joined with Yemeni government forces to lead airstrikes against the Houthis, who hold much of the south of Yemen and the nation’s capital, Sanaa. Saudi Arabia has alleged that the Houthi forces, who are Shiite, are backed by Shiite Iran, a claim which Iran has denied.

The conflict has resulted in an already poor nation plunging into a deep humanitarian crisis, with both famine and cholera ravaging civilians. Houthi forces have closed Sanaa airport, making it difficult for aid to reach Yemenis, and Saudi-led airstrikes on ports have restricted the supply of food.

Hisham al-Omeisy used social media to expose the conflict and humanitarian crisis in Yemen, having risen to prominence during the Arab Spring that ousted Saleh. He was highly critical of the Saudi-led coalition, making his arrest and detention by the Houthi forces somewhat surprising.

ICC

Earlier in July, Georgia signed a cooperation agreement with the ICC. This agreement builds upon Georgia’s ratification of the Rome Statute in 2003, providing clear channels of communication between the government and the ICC. The aim is to allow the ICC to expeditiously fulfil its mandate to investigate crimes within its jurisdiction that allegedly occurred between 1 July and 10 October 2008 in South Ossetia.

On 6 July 2017, Pre-Trial Chamber II of the ICC decided that South Africa failed its obligations under the Rome Statute by not arresting and surrendering Omar Al-Bashir, the President of Sudan, when he visited the country in June 2015. The ICC has issued arrest warrants for Al-Bashir for five counts of crimes against humanity, two counts of war crimes, and three counts of genocide. However, the Court chose not to refer South Africa to the UN Security Council. The ICC’s arrest warrant for Al-Bashir has been widely criticised in Africa and the Middle East.

Srebrenica Massacre

On Tuesday, 26 June 2017, The Hague Appeals Court held the Netherlands liable for 30% of the losses suffered by the families of the victims of the Srebrenica Massacre, and thus liable to pay compensation to the victims’ families. This decision upholds a 2014 decision that the Netherlands was partially responsible for the Massacre, However, this new decision quantifies the responsibility. A compensation amount has not yet been determined.

The Srebrenica Massacre was the genocide of 8,000 Bosnian Muslim men and boys that took place during the war surrounding the breakdown of the former Yugoslavia. The decision by the Court held the Netherlands partially responsible for the deaths of the 350 Bosnian men who were killed after being expelled from a Dutch-controlled UN base after it was overrun by Bosnian Serb troops. The Court held that the Dutch peacekeepers ought to have known that the men seeking refuge who were expelled from the compound were “in real danger of being subjected to torture or execution”, making them responsible for that set of deaths. The Dutch defence ministry has maintained that the Bosnian Serb troops are entirely responsible for the Massacre. This case is highly unusual because the performance of peacekeepers rarely results in the responsible state facing legal action.

The group Mothers of Srebrenica criticised the decision, arguing that the Netherlands should be held entirely responsible. The ruling can be appealed to the Supreme Court.

Please don’t take my arbitrators away: a clash of terms between arbitration agreements and institutional rules – Andrew Foo

 

It is reported that the courts of the People’s Republic of China (“PRC”) have refused to enforce a Singapore International Arbitration Centre (“SIAC”) award under Article V(1)(d) of the New York Convention, on the basis that “the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties…”.

In this case, two parties entered into a contract for the sale and purchase of iron ore.  However, the arbitration agreement therein contained a potential (and potent) clash of terms:

  • The arbitration agreement provided for a three person panel, and
  • The arbitration agreement also provided for arbitration under the SIAC Rules, and the SIAC Rules contain an expedited procedure and state that if this expedited procedure applies, the case would be referred to a sole arbitrator (unless the SIAC determines otherwise).

In 2015, the seller commenced SIAC arbitration, and applied for the arbitration to be conducted in accordance with the expedited procedure.  The buyer opposed the application and insisted that three arbitrators be appointed.

The SIAC agreed with the seller: it determined that the expedited procedure should apply, and appointed a sole arbitrator.  The buyer refused to participate in the arbitration, and an award was rendered in favour of the seller.

However, the PRC Courts have now refused enforcement of the award. They found that the expedited procedure did not empower the SIAC to compel parties to accept a sole arbitrator despite their agreement to a three-member tribunal.

This is not the first time courts have had to confront this clash of terms.  In a similar case (AQZ v ARA [2015] SGHC 49), the Singapore Courts upheld the award, on the basis that the “commercially sensible” interpretation of the arbitration agreement, including the SIAC Rules chosen therein, was that the SIAC has the discretion to appoint a sole arbitrator.

The SIAC itself appears to have sought to address this clash of terms. The latest version of the SIAC Rules (2016) includes a new “override” provision. This provision states that:

[b]y agreeing to arbitration under these Rules, the parties agree that, where arbitral proceedings are conducted in accordance with the Expedited Procedure…the rules and procedures set forth…shall apply even in cases where the arbitration agreement contains contrary terms” (Rule 5.3, emphasis added).

By contrast, the SIAC Investment Arbitration Rules, launched on 1 January 2017, do not contain an expedited procedure.

It remains to be seen if this “override” provision will help harmonise the courts’ handling of this clash of terms.

From a practical perspective, parties should think twice before activating the SIAC expedited procedure where the arbitration agreement provides for three arbitrators (or is otherwise contrary to the expedited procedure) and where a party anticipates that enforcement will be attempted against assets outside Singapore, particularly in the PRC.

 

Andrew Foo is an Associate in the International Arbitration Group of Clifford Chance Asia.

Same-Sex Couples in Australia: A Right to Divorce But What of Marriage?

On 3 August 2017, the Human Rights Committee (HRC) of the United Nations handed down a landmark ruling that Australia had breached its international human rights obligations because it did not allow same-sex couples in Australia to divorce, when they had legally married overseas. This decision comes at a time when the political temperature on the same-sex marriage debate in Australia is heating up.

Read More

Call for applications for the 2018 Nygh Internship

Applications for the 2018 Nygh Internship are now open. This award supports a postgraduate student or graduate of an Australian law school to undertake an internship with The Hague Conference on Private International Law in the Netherlands by providing funds to cover the cost of travel and a contribution towards living expenses. Applications close 30 September 2017.

Information on how to apply, selection criteria and further information is available at http://www.internationalaffairs.org.au/youth-and-community/nygh-internship/.

The press release can be found here.

Can there be justice for Otto Warmbier? – Lorraine Finlay

There is no such thing as a funny dictatorship. This seemingly obvious point was highlighted with the death of Otto Warmbier, who was until recently imprisoned in North Korea. While Hollywood movies like Team America: World Police and The Interview have, from time to time, parodied the North Korean regime, Warmbier’s death is a stark reminder that this regime is not a joking matter.  

Read More

Attorney-General George Brandis outlines Australia’s position at international law on the right to self-defence against imminent attack

On 11 April 2017 Attorney-General Senator the Hon. George Brandis deliver a public lecture at the TC Beirne School of Law, University of Queensland, on the “The Right of Self-Defence Against Imminent Armed Attack In International Law”. While the doctrine of self-defence against imminent attack is well established at international law the Senator seeks to place the doctrine a modern context in which states must take account of non-state actors who have the capability to commit harm transnationally, and in which alongside the threat of terrorism by physical attack lies the threat of cyber attack. The key, according the Senator, is placing the word “imminent” in this modern context.

The speech consists in large part of an historical overview and a re-stating of the doctrine in its post-World War context. Australian, says the Senator, subscribes to the prevailing understanding of the doctrine. Under Article 51 of the UN Charter and international customary law the central point of the doctrine is that force may only be used in situations of armed attack or imminent armed attack:

Article 51

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.

The Article also requires nations exercising self-defence against an armed attack to report the attack to the Security Council. Two further developments in international customary law give the structure for Australia’s position on the doctrine of self-defence in a modern context.

First, the Senator cites a UN High Level Panel Report and the development of international customary law as making clear that the right to self-defence is triggered not only by an armed attack itself but also by an imminent armed attack. Second, the Senator then cites UN Resolution 1368 passed in the aftermath of the September 11 2001 attacks as the basis for widening the international customary law principle to one in which states are not confined to using force in self-defence against another state only.

The Senator then seeks to outline Australia’s approach to using the doctrine in the situation of terrorism or cyber-attack by highlighting the difficulties of implementing how a strictly traditional definition of the term “imminent” would prevent states from acting in the interest of their populations’ security in certain situations.

He uses the example where a terrorism cell has expressed an intent to cause harm to a state and then goes dark. This is an observed pattern which may indicate a future attack but it still remains difficult to tell how “imminent” an attack is, where it will occur or whether there may be some other unrelated reason for the communication going dark for a period.

In applying “imminence” to the doctrine of self-defence, according to the Senator Australia seeks to apply what are known as the “Bethlehem Principles”, enunciated by Sir Daniel Benthem QC (Sir Daniel Bethlehem KCMG QC, ‘Principles Relevant to the Scope of a State’s Right of Self‑Defense Against an Imminent or Actual Armed Attack by Non‑State Actors’ (2012) 106 American Journal of International Law 769). The principles concern the questions such as the probability of an attack, the scale of the anticipated attack, whether it is isolated or not and whether there will be other opportunities to defend against or avoid the attack.

The Senator also makes clear that the doctrine of self-defence must also be tempered by necessity, proportionality and the clear point of differentiation between self-defence as anticipatory to an imminent attack and self-defence as pre-emptive to an attack. The difference as he puts it is that pre-emptive self-defence is responding to “threats which have not yet crystallised but which might materialise in the future”. This is the line of demarcation in applying the doctrine in the context of terrorism and cyber-attack. The Senator quotes Livy in stating Australia’s unequivocal opposition to pre-emptive self-defence: “Men, to guard against their alarms, make themselves objects of terror; averting the danger from their own heads, by imposing upon others the necessity of either doing or suffering the evil which they themselves fear.”

Adherence to anticipatory self-defence rather than pre-emptive self-defence, the Senator says, allows Australia to act “from a position of legal authority and moral strength”. As the Senator himself highlights, the tensions in anticipatory self-defence are truly difficult, and future challenges will demonstrate whether Australia can reconcile its doctrine with its practice.