The past year has been incredibly tumultuous, having reset the international stage and delivering incredibly unexpected political outcomes. From an international legal perspective, while events such as Brexit, Donald Trump’s election, and the crisis in Syria have undoubtedly raised important legal questions and will likely change international law in the future, there have been numerous other significant developments. More
The politics of nuclear disarmament have, in recent times, simmered as a threat to the international order, enlivened every so often by a new round of talks or a major push for reform. On rare occasions, the issue has spilled into the international legal sphere. More
On 24 October 2016, Lord Goldsmith addressed an ACICA audience in Sydney about Brexit and arbitration. He set the Brexit scene: Theresa May is still tight-lipped about the nature of Brexit, following a Brexit campaign characterised by a lack of clarity on what Brexit would actually mean. Uncertainty abounds, except for in one aspect: indications are that negotiations will not be easy. The EU has made it clear to the UK that there will be ‘no negotiation without notification.’
First things first – the constitutional challenge: May plans to trigger Article 50 of the Lisbon Treaty next year but does she have the authority to do that under the royal prerogative? This issue is being hotly debated and is currently being tried in the London Courts. On 3 November 2016, the High Court delivered judgment finding that Article 50 could not be invoked without an Act of Parliament. Arrangements are in place for an expedited appeal straight to the UK Supreme Court and that case will be heard by December. Consequences for the UK and EU will be massive. Much of that is only dimly seen right now.
Impact on London arbitration
The thesis of Lord Goldsmith’s talk was that Brexit will not lead to a diminution of the merits or popularity of London as a seat of arbitration, nor damage the popularity of English law as the commercial law of choice for many international transactions. Why is this the case?
At the centenary conference of the Chartered Institute of Arbitrators (CIArb) in London last year, the CIArb published a list of ten features necessary to make for a safe, effective and successful seat of arbitration. These features are: (1) a clear arbitration law; (2) an independent judiciary; (3) legal expertise; (4) education; (5) the right of choice in representation; (6) accessibility and safety of the seat; (7) facilities; (8) professional ethics that embrace diversity of traditions; (9) enforceability; and (10) arbitrator immunity. London meets all of these requirements, none of which depend on UK membership of the EU. There is, therefore, no reason to believe that London will diminish in popularity as a seat of arbitration. Lord Goldsmith opined that despite the growth of arbitration and arbitral institutions in Asia, Brexit will not spark a ‘land grab’ for traditionally London-based work by other arbitration centres.
In addition to the challenges presented by Brexit, there are certain opportunities. First, there may be a substantive disentanglement of English law and EU law. European law has coloured English law, so if EU regulations no longer apply then English common law may see a resurgence. Secondly, the determination of jurisdictional issues in court cases may end up vastly different should the UK go down the path of abandoning the Brussels Regulation regime and return to common law forum non conveniens principles. The current regime means a UK commercial court can be seized of a matter in circumstances where it is not necessarily the most appropriate forum, but then have limited ways to decline jurisdiction. Right now though, it is uncertain what will happen in terms of UK court judgments until we know more about how the UK will proceed in relation to its private international law framework with respect to the EU. This might push some users towards arbitration, which has a reliable enforcement regime under the New York Convention. Another advantage of Brexit might be that UK courts will again be able to issue anti-suit injunctions directed at European courts. UK courts once commonly issued anti-suit injunctions to prevent proceedings brought in breach of arbitration agreements. This was, however, put to an end in 2004 when the European Court of Justice held that the practice was incompatible with the Brussels Convention.
Thirdly, Brexit might influence the debate about investor-State dispute settlement (ISDS). The EU has proposed an ‘Investment Court System’, a permanent investment court with an appeals process for the Transatlantic Trade and Investment Partnership (TTIP). The competence for negotiating EU treaties currently rests with the EU, and the EU has been firm that the UK is not free to negotiate its own treaties whilst it remains in the EU. The question is, would being freed from the EU give the UK a negotiating advantage? Only time will tell.
In the meantime, it is plausible even if the USA agrees to the an investment court system that it will still opt for conventional ISDS mechanisms in its other trade deals, in which case we might not see the inexorable rise of the Investment Court System. The UK’s decision to opt for one model or the other will influence the course of the debate particularly as the UK will become one of the more active trade negotiating countries over the coming years.
In his concluding remarks, Lord Goldsmith stated that it may now be time for Australia and the UK to grow a new and invigorated cooperation in the field of common law. This is also the time for lawyers to examine closely the opportunities for collaboration in training, development of the law and finding better ways to serve clients.
Marina Kofman is Assistant Editor of the ILA Reporter. A version of this article was originally written for and published by ACICA. It is partially reproduced here with permission.
The road to European Union membership is notoriously long and difficult; its conditions are many and, if successful, its speedy rewards scarce. Few nations are more familiar with this truth than Turkey. More
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 Editors of the ILA Reporter are pleased to alert readers to the following call for papers issued by the Melbourne Journal of International Law:
The Editors of the Melbourne Journal of International Law, Australia’s premier generalist international law journal, are now inviting submissions for volume 17(2). This issue will have a special focus on the legal implications of the Trans-Pacific Partnership, and space will also be available for articles on other issues of international law.
For consideration for inclusion in the print issue of 17(2), authors should submit on or before July 1, 2016. Submissions and inquiries should be directed to firstname.lastname@example.org. For more information, please visit http://www.law.unimelb.edu.au/mjil#submissions.
International law practitioners, academics and students alike will benefit from the recent release by Médecins Sans Frontières (MSF) of the updated Practical Guide to Humanitarian Law in an online format. The online release comes at the launch of the second updated edition of the Practical Guide, originally authored in 1998 by MSF Legal Director, Françoise Bouchet-Saulnier.
MSF is a humanitarian organisation that delivers aid to people affected by armed conflict and health disasters and globally advocates for the proper implementation of international humanitarian law. The Practical Guide was originally launched in order to comprehensively present the terms and rules of international humanitarian law accessibly to a global audience, such that a uniform interpretation could be established with a due focus on victims’ rights.
The 2015 update recognises the new dilemmas that have been posed to international humanitarian law since 1998. These include the ambiguities arising from the ‘global war on terror’, the rise of non-state armed groups and the increasing use of asymmetrical warfare. Amidst such changes, the Practical Guide considers how international humanitarian law can remain relevant, and for what purpose it exists in the 21st century. The answer that is ultimately put is that humanitarian law remains a crucial means of tempering power and warfare, despite its imperfections as a body of law.
The online Practical Guide includes a variety of alphabetically-arranged entries that cover humanitarian law issues from aggression to military necessity to right of access.
October 2015 has seen the flaring of tensions once more in the ongoing whaling dispute between Japan and Australia. On 6 October, Japan filed a special reservation to its declaration recognising the compulsory jurisdiction of the International Court of Justice (ICJ). The special reservation, filed with the United Nations, excludes ICJ jurisdiction over:
any dispute arising out of, concerning, or relating to research on, or conservation, management or exploitation of, living resources of the sea.
In effect, Japan’s reservation seeks to prevent a future legal challenge being brought internationally against its whaling activities. Japan’s scientific whaling program has been the subject of a longstanding dispute between Australia and Japan that, in 2010, led Australia to institute legal proceedings against Japan at the ICJ. This was after the exhaustion of bilateral negotiations and discussions at the International Whaling Commission.
The Whaling in the Antarctic (Australia v Japan) case considered whether Japan, in undertaking the Japan Whale Research Program Under Special Permit in the Antarctic II (JARPA-II), had breached the 1946 International Convention for the Regulation of Whaling (ICRW) by killing whales in the Southern Ocean. Australia argued that Japan was in breach of a moratorium on commercial whaling effectively imposed from 1986 onwards by the adoption of paragraph 10(e) of the ICRW Schedule (which provided for zero catch limits) and Japan’s further obligation under paragraph 10(d) to observe the moratorium. Japan argued that its program fell under the limited exception to the moratorium provided in article VIII of the ICRW, allowing nations to give special permits to its nationals to kill whales ‘for purposes of scientific research’.
On 31 March 2014, the ICJ handed down its judgment, holding that JARPA-II did not fall within the scope of article VIII and determining that Japan was in contravention of the ICRW. The ICJ ordered that Japan revoke any JARPA II permits and refrain from granting any further permits under the program.
While the judgment was widely celebrated at the time as a successful instance of legal dispute resolution and a triumph for the global anti-whaling coalition, Japan has since signalled preparations for a new scientific whaling program, NEWREP-A.
Japan’s filing of a special reservation this month seemingly flouts the scope and power of the ICJ and limits Australia’s options to challenge NEWREP-A on grounds of international law. The Australian government has since announced it is seeking legal advice.