Category: Analysis

Disinformation in international forums: the civil society loophole – Szabina Horvath

Editors Analysis, Articles

An extensive investigation by EU DisinfoLab found that even United Nations (UN) forums are not immune from being fed misinformation and that UN initiatives intended to strengthen accountability can be a source of mistrust. The preliminary findings of the investigation should place the UN, states and civil society actors themselves on notice.

Engagement and involvement with civil society by international organisations can be an incredibly valuable tool. UN forums, in particular, value the input and views of civil society and see civil society as a useful mechanism for ensuring that states are accountable. However, like many mechanisms, this mechanism can be misused. The means and effectiveness of civil society engagement in UN forums and on international issues generally (including civil society led initiatives) should be regularly reviewed and assessed. 

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A Review of the Malabo Protocol on the Statute of the African Court of Justice and Human Rights – Part I: Jurisdiction over International Crimes – Jessie Chella

Editors Analysis, Articles 1 Comment

This two-part series examines the Malabo Protocol on the Statute of the African Court of Justice and Human Rights (ACJHR). When it comes into effect, the Malabo Protocol will empower the ACJHR to exercise jurisdiction over international crimes as well as introduce a regulatory scheme for corporate criminal liability. This is a milestone for the regional court and the African continent. Additionally, this is a significant innovation for international criminal law, which traditionally has not recognised the criminal liability of corporate entities.

Historical Development of the ACJHR 

As early as 1988, the Organisation for African Unity, later known as the African Union (AU), adopted the Protocol to the African Charter on Human and Peoples’ Rights, which laid the foundation for the establishment of the African Court on Human and Peoples’ Rights (ACHPR) in 2004. Currently, 30 of the 55 AU members have ratified the ACHPR Protocol. In 2000, the AU also created the African Court of Justice (ACJ). Later, in 2005, the AU established the African Court of Justice and Human Rights (ACJHR) by merging the ACHPR and the ACJ. 

Then in June 2014, the AU met in Malabo, Equatorial Guinea, at the twenty-third Ordinary Session of the Assembly. There it adopted the Protocol on Amendments to the Protocol on the Statute to the African Court of Justice and Human Rights, commonly known as the Malabo Protocol. The Malabo Protocol empowers the ACJHR with jurisdiction over international crimes as well as introducing a regulatory scheme for corporate criminal liability. 

The international criminal law section of the ACJHR is off to a slow, rocky start. According to Article 11 of the Malabo Protocol, the Protocol shall enter into force 30 days after 15 members deposit instruments of ratification with the court. Of the 55 AU members, only 15 have signed the Protocol; none have ratified it. 

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Model the Pandemic, Model the World: Which World? Whose World? – Fleur Johns

Editors Analysis, Articles

The global COVID-19 pandemic has been the subject of extensive regulatory activity, primarily by national governments but also by international organisations. This post draws attention to one regulatory technique that has been central to this activity: modelling. Rather than canvassing the merits and demerits of models of different kinds, it argues that at least as much public attention should be devoted to the world-making effects of models as is customarily directed at multilateral treaties or at national legislation with international impacts.

“We need new models” has been a regular refrain amid the COVID-19 pandemic. New models of vaccine delivery; new models of disease spread and mortality; new models of aged care; new economic models; new models of governance and public engagement: all these and more have been called for of late. In these various calls, the term “model” means slightly different things, yet, the term is nonetheless a recurrent point of reference. It is now ubiquitous among efforts to navigate and regulate the complexities of contemporary life, especially so in a global pandemic. In Australia, modelling has been central to government communication with the public around key decisions, including decisions affecting international legal relations. Models have been used to explain and justify border control and quarantine measures, travel restrictions, social distancing requirements and economic stimulus measures. In Australia and elsewhere, the assumptions and outputs of certain types of model have become embedded in law, policy and official guidance, thereby promoting particular understandings of social and economic life. Global requirements to maintain between one and two metres’ social distance between persons, for instance, under penalty of fines or even jail terms, are based on models of respiratory disease transmission dating back to the 1930s. Much as people remain attentive to legislation or treaties coursing through our parliaments, it is important that we attend to these models’ centres and peripheries, foregrounds and backgrounds, hierarchies and priorities, preoccupations and blind spots.

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Interview on the Elgar Companion to the Hague Conference on Private International Law – Part 1

Editors Analysis, Articles, Interviews

The ILA Reporter is excited to share Part 1 of our interview about the recently released Elgar Companion to the Hague Conference on Private International Law. This text forms part of the Elgar Companions to International Organisations series and was released 19 December 2020.

The Companion is a guide to the Hague Conference on Private International Law (HCCH). It is a critical assessment of, and reflection on, past and possible future contributions of the HCCH to the further development and unification of private international law, and was written by international experts who have all directly or indirectly contributed to the work of the HCCH.

This interview was conducted by Josephine Dooley, an Assistant Editor of the ILA Reporter, with the editors of the Elgar Companion to the Hague Conference on Private International Law:

  • Thomas John, ACIArb, Partner, Grotius Chambers, The Netherlands
  • Rishi Gulati, LSE Fellow in Law, London School of Economics and Political Science, United Kingdom
  • Ben Köhler, Senior Research Fellow, Max Planck Institute for Comparative and International Private Law, Germany

The ILA Reporter thanks the editors for their willingness to share these insights with our readership.

What the WTO Appellate Body decision on plain packaging means for intellectual property and public health – Suzanne Zhou

Editors Analysis, Articles

In June 2020, the World Trade Organization (‘WTO’) Appellate Body ended a decade of litigation against Australia’s tobacco plain packaging laws when it dismissed the last remaining legal challenge against the measure by rejecting the appeal brought by the Dominican Republic and Honduras to an earlier decision of a WTO panel. The Appellate Body affirmed that plain packaging was apt to, and did, contribute to its public health objectives, was no more trade-restrictive than necessary to achieve that objective, and did not breach any intellectual property obligations under the WTO Agreements.

The Appellate Body decision has important systemic implications, particularly for the relationship between intellectual property rights and public health under the Agreement on Trade Related Aspects of Intellectual Property Rights (‘TRIPS’). This post examines what some of those implications may be beyond tobacco control, such as for the regulation of other unhealthy commodities or for access to medicines. 

Four findings of the Appellate Body have particular significance for the relationship between intellectual property and public health: 

  • its confirmation that trademarks are negative rights that do not prevent regulation of unhealthy commodities marketing;
  • its recognition of regulatory autonomy under TRIPS article 20;
  • its approach to interpreting TRIPS in public health contexts; and
  • its findings on the role of non-WTO treaties within the WTO agreements.

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

Editors Analysis, Articles

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?

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

Editors Analysis, Articles

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.

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

Editors Analysis, Articles

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: 

  1. 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’. 
  1. 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. 

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

Editors Analysis, Articles

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.”

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

Editors Analysis, Articles

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.

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