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.

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


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.


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).

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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.

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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.  

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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.


Investor-State Dispute Settlement: Controversial, but Constitutionally Valid? – Lisa Burton Crawford, Patrick Emerton and Emmanuel Laryea

Investor-State Dispute Settlement (ISDS) clauses are a prominent feature of many modern International Investment Agreements (IIAs). They are included in nearly all the IIAs to which Australia is a party. Typically, an ISDS clause allows a foreign investor (often a corporation) to challenge a government decision before a panel of private arbitrators who have the power to make decisions and make awards that are binding and enforceable.

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New Issue of the Martin Place Papers

The Martin Place Papers are an occasional series published by the International Law Association (Australian Branch) to provide wider access to the proceedings and outcomes of ILA sponsored seminars and conferences. No 7 in this series has now been published. Martin Place Paper No 7,The International Law Context of Recent Developments in Indigenous Policy contains the proceedings of a seminar convened jointly by the ILA and the National Centre for Indigenous Studies (NCIS) at the ANU in late 2015.

The paper by ILA member Greg Marks, ‘Lifestyle choices? Closing down Aboriginal communities and international law’ examines the relevance of Australia’s obligations under the UN International Covenant on Economic, Social and Cultural Rights (ICESCR) to policies aimed at closing down remote small Aboriginal communities. Such policies and their concomitant funding arrangements have been problematic to Aboriginal groups endeavouring to achieve their aspirations to live on and manage their traditional lands and waters. The analysis by Greg Marks indicates that the policies are also problematic in terms of Australia’s international legal obligations.

The second paper, by Dr Sean Kerins, ‘Indigenous Development in the Southwest Gulf of Carpentaria region of the Northern Territory: Opportunities and Challenges’ examines policies and developments in the Region from the viewpoint of international norms and expectations contained in instruments such as the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). This analysis is particularly relevant to the current controversy about the proposal to expand the huge McArthur River mine near Borroloola (see media coverage here).

To obtain a copy of Martin Place Paper No 7, contact the Secretary, ILA (Australian Branch) Cost is $20 per copy.

The Multiple Roles of Women in the Bosnian War: Victims, Ex-Combatants, Peace Builders, and Perpetrators – Dr Olivera Simic

War generally affects the entire population, male and female. Yet within the portrayal of war, men are usually portrayed as the aggressors and perpetrators, and women as the helpless victims. Most of the literature on women and warfare, or women and genocide, analyses the role of women from a victim-centred perspective.

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