On 8 February 2017, President Chris Ward of the ILA (Australian Branch) joined an esteemed panel of speakers for an event hosted by the NSW Bar Association. The topic was the impact of Donald Trump on international law, whether in present or future. More
Applications are now open for the role of Social Media Coordinator of the ILA (Australian Branch) for 2017! See below for details on the role and how to apply. More
Upcoming Lecture with Justice Keane AC – “Courts and International Arbitration: A Reappraisal of Roles”
The International Law Association, Queensland Chapter warmly invites you to a breakfast lecture by Hon. Justice Patrick Keane AC of the High Court at 7:30 – 8:45 am on Friday 4 November 2016 in the Edinburgh Room, Brisbane Club. He will be speaking on the topic of “Courts and International Arbitration: A Reappraisal of Roles”.
Justice Keane was appointed to the High Court in March 2013. At the time of his appointment he was Chief Justice of the Federal Court of Australia. He served as a judge of the Court of Appeal, Supreme Court of Queensland from 2005-2010 before joining the Federal Court. He is a graduate of the University of Queensland and Oxford University. He was admitted to the Queensland Bar in 1977 and in 1988 he was appointed Queen’s Counsel. He was Solicitor-General for Queensland from 1992 to 2005. Justice Keane AC was appointed a Companion in the General Division of the Order of Australia in 2015.
CPD POINTS: Solicitors may wish to claim 1 general CPD unit, and Barristers may wish to claim 1 CPD point in the Substantive Law category. You will be able to record your attendance by signing an attendance register.
A hot plated breakfast will be served, accompanied by fresh fruit, pastries, juices, tea & coffee. Tickets will cost $60 for Members, $70 f0r Non-Members and $45 for full-time students.
The Australian International Law Journal, published by the International Law Association (Australian Branch), is calling for papers of between 6,000 and 12,000 words on topics of public or private international law. More
Volume 21 of the Australian International Law Journal has just been published by the International Law Association (Australian Branch). More
The 77th ILA conference will be taking place in Johannesburg, South Africa, from 7-11 August 2016. The President of the South African Branch, which is organising the conference, has sent the following update to the Australian Branch:
“The 77th Biennial Conference of the International Law Association, which is scheduled for 7 – 11 August 2016 in Johannesburg, will mark the second time only for a biennial conference to take place on the African continent in the almost 150 year history of the Association. Expectations are therefore high that the members of the historically dominant ILA constituencies in the North will attend the conference in substantial numbers in the interest of providing a platform for the establishment of a community of international law scholars that is more representative of the regions of the world than is currently the case.
Apart from this imperative, and in addition to the reporting sessions of some thirty ILA committees and study groups, the programme offers parallel sessions on issues of regional and global interest and significance. These include the UN report on Africa’s illegal capital flight; harmonization efforts in international commercial law; BRICS in international law; the peace and security architecture of the African Union; automated weapon systems and international law; marine bio-diversity beyond areas of national jurisdiction; investor – state dispute resolution; nuclear weapons, non-proliferation and contemporary international law; the law of armed conflict in Africa; and international criminal law.
Leisure options abound. Pre- and post-conference tours to the spectacular Victoria Falls and to Cape Town are available. In Johannesburg and surroundings delegates have the option to visit game farms, the Constitutional Court, the Apartheid museum, SOWETO and Liliesleaf Farm where senior members of the ANC were arrested in 1963 for plotting the overthrow of the Apartheid government.
The members of the South African Branch of the ILA have invested a lot of time and energy in putting this conference together in adverse circumstances. We hope that we can count on the patronage of our fellow ILA members in other branches.”
All members and subscribers are encouraged to attend this significant conference. To register, visit http://ila2016.com/index.php/register-now/.
A conversation with Christof Heyns, United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions — Sophocles Kitharidis and Laura Baykara
On 8 October 2015, United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, Professor Christof Heyns, gave a rare lecture to the International Law Association (Victorian Chapter) during his three-day visit in Australia. Having held this UN mandate for the last five years, Professor Heyns discussed the ways in which his mandate functions and its coverage of the scope and limitations of the right to life, and provided an overview of the central themes that addressed by the mandate, including:
- the need for law reform on the use of force by law enforcement officials in most countries in the world;
- the development of guiding principles on the management of demonstrations for the Human Rights Council;
- the demise of the death penalty; and
- the emergence of new technologies that affect the right to life, both in terms of weapons and technologies that can be used to protect life.
In 1982, the Commission on Human Rights put forward resolution CHR Res 1982/29 to the Economic and Social Council requesting the appointment of a special rapporteur with a focus on the practices concerning summary or arbitrary executions. The mandate was established under resolution ESC Res 1982/35.
Ten years later, resolution CHR Res 1992/72 widened the mandate to include ‘extrajudicial’ as well as ‘summary or arbitrary’ executions. The amendment indicated the importance placed by members of the Commission on Human Rights to include all violations of the right to life as guaranteed by the majority of international human rights instruments (further information available here).
Professor Heyns discussed the importance of the mandate covering all countries, irrespective of whether a state has ratified relevant international conventions. He noted his most recent country visits to Gambia, Papua New Guinea, and Ukraine.
In resolution HRC Res 26/12, the United Nations Human Rights Council underscored the importance of the UN’s chief investigator to carry out their mandate in the following way:
(a) To continue to examine situations of extrajudicial, summary or arbitrary executions in all circumstances and for whatever reason, and to submit his or her findings on an annual basis, together with conclusions and recommendations, to the Human Rights Council and the General Assembly, and to draw the attention of the Council to serious situations of extrajudicial, summary or arbitrary executions that warrant immediate attention or where early action might prevent further deterioration;
(b) To continue to draw the attention of the United Nations High Commissioner for Human Rights to serious situations of extrajudicial, summary or arbitrary executions that warrant immediate attention or where early action might prevent further deterioration;
(c) To respond effectively to information which comes before him or her, in particular when an extrajudicial, summary or arbitrary execution is imminent or threatened or when such an execution has occurred;
(d) To enhance further his or her dialogue with Governments, as well as to follow up on recommendations made in reports after visits to particular countries;
(e) To continue to monitor the implementation of existing international standards on safeguards and restrictions relating to the imposition of capital punishment, bearing in mind the comments made by the Human Rights Committee in its interpretation of article 6 of the International Covenant on Civil and Political Rights, as well as the Second Optional Protocol thereto;
(f) To apply a gender perspective in his or her work.
Professor Heyns articulated the importance of the operational duties of the Special Rapporteur as an advisor to the UN. He underscored the need for rapporteurs to secure invitations from member states where investigations are required and the challenges associated in obtaining approval for the country visits, such as governments not replying or delaying responses due to political pressure and sensitivities. One would also assume that further challenges would include the rapporteurs’ ability to maintain an independent and impartial position throughout their investigation.
Drones, weapons systems and the right to life
Professor Heyns explored the concepts of drones and autonomous weapons systems (AWS) and the complexities (both legally and morally) around how these systems have the ability to make an accurate decision concerning the use of force against human beings — both within and outside armed conflicts, such as those undertaken by law enforcement agencies. The concept of the ‘weapon becoming the warrior‘ underscores the legal and ethical quandaries around the new mechanisms for the use of force. Within the context of law enforcement, intervention (and not human intervention) can be used as a form of non-lethal action, but questions still exist around the ability of a machine making a judgement on when and how the intervention is to be used.
In examining the use of armed drones and AWS from a human rights approach, accountability comes to the forefront of the debate (where a violation of the right to life is evident). Otherwise, it can be classified as an empty normative system. Arguably, since the AWS will have the ability to make judgements with the ‘human’ element absent, it may be that human beings may not be held responsible for collateral damage or for circumstances where the armed drone or AWS fails its target or mission; this is due to the importance of meaningful responsibility depending on meaningful control (see also Professor Heyn’s comments earlier this year) (http://www.ohchr.org/Documents/Issues/Executions/CCWApril2015.doc).
Professor Heyns further examined an AWS’ ability to accurately target legitimate objects. The ability for a machine to make life and death decisions is a growing area of debate concerning the right to life and human dignity. Questions concerning the dignity of the targeted not being affected and the machine’s decision-making process arise as areas for further review. However, it is important to note that even though the machine is making the decision, a human element will also continue to exist within the chain — whether it be the individual who created the structure of the machine, designed the machine, programmed the machine or released the machine to undertake the attack.
Professor Heyns discussed the right to life in the context of the use of force, political killings and the death penalty. The right to life is a precondition to other human rights — for example, political killings against journalists have a chilling effect on a number of other human rights. However, it cannot necessarily be assumed that the right to life is the supreme right vis-à-vis other rights, given the debate surrounding armed drones and AWS. Where the right to life is accepted as the supreme right, it is done on the condition that it is a right that is a prerequisite of all other existing rights. This can be seen in the example of armed drones and the use of force where the drones themselves are not illegal. However, when implementing them as a weapon of force, ‘they may be easily abused and lead to unlawful loss of life, if used inappropriately’ (as stated here by UN Special Rapporteur on counter terrorism, Ben Emmerson).
The presentation concluded with a number of questions from the audience. On behalf of the International Law Association (Victorian Chapter), we extend our greatest appreciation and thanks to Professor Christof Heyns for making this event possible.
This article is not intended to be a transcript of the presentation.
Laura Baykara holds a Bachelor of Laws (Hons) from Monash University and is a solicitor at Herbert Smith Freehills.
Sophocles Kitharidis is a public international law consultant to the International Affairs Division of the Thai Ministry of Justice. He is the former Vice President of the International Law Association (Victorian Chapter) and holds a Master of Laws in Public International Law from the University of Melbourne.
Australian members of the Committee:
- Professor Jane McAdam, UNSW Australia – Co–Rapporteur
- Professor Rosemary Rayfuse, UNSW Australia – Chair’s Nominee
- Professor Clive Schofield, University of Wollongong – Ordinary Member
- Derek Wong – Ordinary Member (Alternate)
The International Law Association (ILA) Committee on International Law and Sea Level Rise (Committee) held its first inter-sessional meeting on 12–13 June 2015 in Oslo. Hosted by Professor Davor Vidas (Committee Chair) and the Fridtjof Nansen Institute, the meeting was attended by 16 Committee members and 7 observers. After two intensive days of discussions, the participants wrapped up their deliberations with a dinner cruise on the Oslo fjord. Not only was the meeting productive, but it was highly enjoyable as well.
The foundation and mandate of the Committee
The Committee has its origins in the 2012 final report Baselines under the International Law of the Sea, which recognised that the loss of a state’s territory due to sea-level rise is not only a baseline or law of the sea issue, but encompasses other wider areas of international law. This was acknowledged in Resolution No 1/2012: Baselines under the International Law of the Sea, adopted at the 75th ILA Conference in Sofia, which led to the establishment, in the same year, of this new Committee.
The mandate of the Committee, approved by the ILA Executive Council and recalled in its first session, is ‘to study the possible impacts of sea-level rise and the implications under international law of the partial and complete inundation of state territory, or depopulation thereof, in particular small island and low-lying states;’ and to ‘develop proposals for the progressive development of international law in relation to the possible loss or all or parts of state territory and maritime zones due to sea-level rise, including the impacts on statehood, nationality, and human rights.’
As outlined in the proposal for the establishment of the Committee, three main avenues of enquiry were initially considered as relevant:
- The consequences of sea-level rise on entitlements to maritime areas;
- The consequences of sea-level rise on statehood; and
- The consequences of sea-level rise on human rights and mobility (displacement, migration and planned relocation).
The research areas were reflected in the appointment of Professor David Freestone and Professor Jane McAdam as Co-Rapporteurs.
Work of the Committee in 2014–2015
In April 2014, the Committee held its first meetings in Washington DC, two closed sessions (see here and here) and an open session (here), during which participants discussed the working methods of the Committee and its mandate, as well as a background paper relating to the theme of mobility. It was decided to approach the issues initially in two distinct streams; one relating to maritime zones and the other to mobility and human rights, and, at a later stage, to concentrate on joining the streams in the consideration of the statehood issue. In this latter regard, it was suggested that representation and active participation in the work of the Committee by members from the Pacific and other regions likely to be most affected should be sought and encouraged. In addition, it was noted that the Committee’s mandate also invited broader considerations relating to the consequences of sea-level rise on other areas of international law including, but not limited to, international environmental law and the law relating to climate change adaptation and mitigation. The desire for the inclusion of additional expertise on the Committee to enable a fuller consideration of these broader issues was expressed.
At the inter-sessional meeting on 12–13 June 2015, discussion papers were presented on the two main areas of the Committee’s mandate. Of the Australian members, Professor Clive Schofield spoke on options to address the instability of baselines and maritime limits as a result of sea level rise and outlined recent trends in state practice towards the fixing of maritime boundaries and outer limit lines. In addition, in response to the wishes of the membership expressed during the Washington meetings, Professor Rosemary Rayfuse presented a paper on the broader issue of the impacts of sea-level rise on regimes relating to the protection, conservation and management of natural (as opposed to human) systems, including the Convention on Biological Diversity, the Convention Concerning the Protection of the World Cultural and Natural Heritage and the Ramsar Convention on Wetlands of International Importance. Co-Rapporteur Professor Jane McAdam presented an extensive draft interim report on human rights and mobility prepared by a working group comprised of herself, Committee members Bruce Burson (New Zealand) and Walter Kälin (Switzerland), and Sanjula Weerasinghe.
Robust discussions were held on both the law of the sea and the human rights/mobility issues. There was a significant amount of agreement among the Committee members on both the issues for consideration and the possible recommendations that might be made as work progresses, which will be reflected in a draft interim report. This will be circulated to Committee members for comment and input prior to its submission for consideration at the 2016 ILA Conference in Johannesburg.
ILA members interested in the work of the Committee are invited to attend a seminar to be held at UNSW Law on Monday 10 August 2015 (details forthcoming) at which Co-Rapporteur Professor David Freestone will speak on the law of the sea and statehood issues.
Can users of international commercial arbitration safely assume the process is confidential? Do international arbitrators possess ‘inherent powers’ beyond what is specified in the arbitral rules? These are two topics recently examined by the International Law Association’s (ILA) International Commercial Arbitration Committee (Committee).
The International Commercial Arbitration Committee
International arbitration has been a subject of interest for the ILA since as early as 1895. The current International Commercial Arbitration Committee is composed of 53 members from over 30 countries, including professors, judges, arbitrators, private practitioners and staff of international organisations.
The Committee meets in different locations around the world, approximately three times a year. The Australian Branch has two members — Hague-based Judith Levine and Sydney-based Damian Sturzaker and an alternate, Jason Clapham. Having members in both hemispheres helps ensure that an Australian representative is present at each meeting. There are other ways for ILA Australia branch members to participate in the Committee’s work. For example, for the recent project on confidentiality, young lawyers from the ILA Victoria Chapter helped compile information and draft a submission on Australian case law and legislation, which was used for the Committee’s final report.
The cumulated reports of the Committee form a valuable body of work and contain recommendations based on experience in national jurisdictions and international practice. Blog readers are encouraged to look back at reports of the past decade, including on ‘Public Policy as a Bar to Enforcement of International Arbitral Awards‘ (New Delhi Conference, 2002); ‘Res Judicata and International Arbitration‘ (Berlin Conference, 2004); and ‘Lis Pidens and Arbitration‘ (Toronto Conference, 2006). This post will focus on the two most recent topics examined by the Committee: ‘Confidentiality in International Commercial Arbitration‘ (The Hague Conference, 2010); and ‘Inherent and Implied Powers of Arbitral Tribunals‘ (Washington DC Conference, 2014).
Recent Committee Work: Confidentiality
The Committee’s last report surveys current law and practice to test the assumption commonly held by parties that their international arbitration proceedings are confidential. The report identifies problems that may arise as a result of inconsistent confidentiality rules, sets out findings and offers recommendations, including two model clauses. The Committee decided to limit the scope of its report to international commercial arbitration, consciously excluding discussion of confidentiality as it relates to investor-State arbitration. The investor-State context was seen as giving rise to distinct policy concerns that may warrant different approaches and solutions that have since been the subject of a separate set of rules on transparency promulgated by UNCITRAL.
The Committee found that confidentiality is an important feature of international commercial arbitration but that many users incorrectly assume that arbitral proceedings are inherently confidential. In fact, many national laws and arbitral rules do not currently provide for confidentiality and those that do vary in their approach and scope. The report notes that arbitration confidentiality obligations bind the parties to the dispute and their agents and representatives, as well as arbitrators, arbitral institutions and tribunal secretaries, but not others involved in a case (like witnesses). Where a tribunal has jurisdiction over an arbitral confidentiality dispute, it may use a range of remedial powers, such as ordering injunctive or declaratory relief, awarding damages, barring the introduction of evidence procured in breach of confidentiality, or treating the breach as a breach of the underlying contract.
The Committee recommended that:
- The best way safely to ensure confidentiality (or non-confidentiality) across many jurisdictions is to provide for it by express agreement (prior to or during the arbitration);
- In the absence of contractual provisions on confidentiality, arbitrators should consider drawing the attention of the parties to confidentiality and, if appropriate, addressing the issue in terms of reference or a procedural order at the outset of proceedings;
- Express agreement to confidentiality should specify the scope, extent, duration of the confidentiality obligation, the exceptions to it, and how it may be enforced;
- Given that confidentiality provisions do not normally impose obligations on third parties involved in the arbitral process(like witnesses), it should be incumbent upon the participant in the arbitration who brings the third party into the proceedings to make reasonable efforts to obtain their express agreement to preserve confidentiality; and
- Reasonable exceptions to an obligation of confidentiality may include:
- prosecuting or defending the arbitration or proceedings related to it (e.g. for enforcement/annulment);
- responding to a compulsory order or request for information of a governmental or regulatory body;
- making a disclosure required by law or by the rules of a securities exchange; or
- seeking legal, accounting or other professional services, or satisfying information requests of potential acquirers, investors or lenders.
The topic currently under consideration by the Committee is ‘Implied and Inherent Powers of Arbitral Tribunals’. Unlike the confidentiality project, this topic was not limited to commercial arbitration and, in fact, many of the examples in the report were drawn from investment treaty disputes. As with the confidentiality project, Australian members actively participated in discussions and contributed research papers and sources that are referenced in the report.
The report introduces the topic by noting that party agreement is the foundation of every arbitration, and poses the following questions:
[A]rbitrators are sometimes confronted with situations that are not addressed by either the parties’ arbitration agreement or the applicable curial law and rules. What, if any, powers do the arbitrators have to deal with those situations? What is the source of those powers? What is the limit of them?
The report reviews the common law origins of inherent and implied powers and discusses various situations where such powers may be relevant to international commercial arbitration, including:
- Powers relating to procedure (e.g. determining the seat, bifurcating proceedings, deciding on evidentiary matters, permitting non-party participation);
- Powers to issue interim relief (e.g. to seek a stay of court proceedings, to stop criminal proceedings, to stop disclosure of documents, and to take steps to prevent the exacerbation of the dispute or to maintain the integrity of the arbitral proceedings);
- Powers related to decision-making (e.g. to deal with new objections to jurisdiction, to order summary dismissal, to award interest);
- Powers to safeguard against misconduct and perceived improprieties (e.g. to deal with vexatious claims or bad faith conduct, to allocate costs as a sanction, to disqualify counsel); and
- Powers of revision (e.g. to modify a decision in light of new evidence).
The Committee conceptually divides the sources of power into three categories:
- powers implied by textual sources (the parties’ agreement, applicable rules and law governing the arbitration);
- discretionary powers of procedure (stemming from the right to oversee proceedings); and
- inherent powers necessary to preserve jurisdiction (stemming from the duty of arbitrators to protect the integrity of proceedings and render an enforceable award).
While implied and discretionary powers remain subordinate to party agreement, inherent powers cannot be so restricted, and therefore, according to the Committee, ‘should be used narrowly, proportionately and only so far as necessary to accomplish the exigencies of the particular situation’.
The Committee’s recommendations are targeted at:
- Parties — who should understand that tribunals have inherent and implied powers and realise that, within limits, they may by agreement confirm, expand or constrict arbitral powers;
- Arbitrators — who should always first look to the arbitration agreement, rules governing proceedings and relevant law to assess the scope of their authority in any given situation. Only if those sources do not adequately resolve the issue, should they consider whether to act on the basis of implied, discretionary, or inherent authority (in that order). Before exercising such powers, arbitrators should elicit the parties’ views and assistance to fashion the most appropriate solution, taking into account their legal background and the law governing the arbitration. Arbitrators should explain their reasoning for exercising implied, discretionary or inherent powers, which may help the award to withstand review at enforcement or actions to set aside proceedings; and
- Courts — which should appreciate that arbitrators often have some power to act beyond the explicit boundaries set by the laws and rules governing an arbitration.
Future Committee Work?
As noted on the ILA website, the Inherent Powers report will be tabled for finalisation at the 2016 conference in Johannesburg. Future topics for the committee are being considered and suggestions are welcome to be sent to: firstname.lastname@example.org.
Judith Levine is Senior Legal Counsel at the Permanent Court of Arbitration in The Hague (PCA), where her duties include serving as Registrar in the Philippines v China UNCLOS arbitration. She is a member of the Board of Directors of the Australian Centre for International Commercial Arbitration (ACICA). Neither the views expressed in this blog entry nor the ILA Committee Reports are attributable to the PCA or ACICA.