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

(Photo by Arti Sandhu/Flickr)

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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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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Can there be justice for Otto Warmbier? – Lorraine Finlay

(“Mansudae Monument” by Evan Ritli/Flickr)

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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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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Interview with Professor Gillian Triggs: A Truly International Lawyer

For our fourth profile of Women in International Law Month, Editor-in-Chief Jennifer Tridgell sat down with the President of the Australian Human Rights Commission (AHRC), Professor Gillian Triggs. She is a highly accomplished international lawyer and academic, with experience on matters from commercial law to Indigenous rights.

Professor Triggs is the incumbent President of the Australian Human Rights Commission. Previously, she was Dean of the Faculty of Law at the University of Sydney and Director of the British Institute of International and Comparative Law. Gillian has been a consultant on International Law to King & Wood Mallesons, the Australian representative on the Council of Jurists for the Asia Pacific Forum for National Human Rights Institutions, Chair of the Board of the Australian International Health Institute and a member of the Attorney General’s International Legal Service Advisory Council. She is the author of many publications on international law, including “International Law: Contemporary Principles and Practices” (Second Edition, 2011).

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Interview with Professor Christine Chinkin: Find Your Own Path in International Law

For our third profile for Women in International Law Month, we were honoured to interview Professor Christine Chinkin of the London School of Economics. She is a renowned Feminist scholar, particularly for her ground-breaking work on women, peace and security, in addition to her collaboration with Hilary Charlesworth and Shelley Wright on the gendered boundaries of international law.

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Interview with Dr Sarah Nouwen: In Search of Peace and Justice

For our second interview of Women in International Law Month, we are joined by Dr Sarah Nouwen. She is a leading expert on international law of peacemaking and justice in Africa, and Co-Deputy Director of the Lauterpacht Centre for International Law at the University of Cambridge.

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Interview with Professor Natalie Klein: Life and Law of the Sea

To celebrate International Women’s Day and the swearing in of Chief Justice Kiefel as the first female Chief Justice of the High Court of Australia, the ILA Reporter will profile prominent Women in International Law throughout March 2017. Our first interview is with Professor Natalie Klein, current Dean at Macquarie University Law School and a leading expert in international law of the sea.

Dr. Natalie Klein is Professor and Dean at Macquarie Law School. At Macquarie, she teaches and researches in different areas of international law, with a focus on law of the sea and international dispute settlement. Professor Klein is the author of Dispute Settlement and the UN Convention on the Law of the Sea (Cambridge University Press, 2005) and Maritime Security and the Law of the Sea (Oxford University Press, 2011). She provides advice, undertakes consultancies, and interacts with the media on law of the sea issues. Professor Klein previously worked in the international litigation and arbitration practice of Debevoise & Plimpton LLP, served as counsel to the Government of Eritrea (1998-2002), and was a consultant in the Office of Legal Affairs at the United Nations. Her masters and doctorate in law were earned at Yale Law School. In 2013, she was invited to become a Fellow of the Australian Academy of Law.

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A Tug of War between National Security and UN Security Council Resolutions – Deniz Kayis

In December 2015, Australia’s Federal Parliament amended the Citizenship Act 2007 (Cth) (“Citizenship Act”) to add avenues by which dual citizens could lose their Australian citizenship for terror-related conduct. Much of the commentary on the amendments has focused on the justifications behind the legislation, and the implications for Australia’s compliance with international human rights. Less commentary has focused on how the new provisions interact with, and likely contravene, Australia’s international security obligations.

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Recognising male victims of sexual violence in war: the UN Security Council and ad hoc tribunals – Richard Hughes

Australia has provided steadfast support for the UN’s agenda on women, peace and security, ever since the landmark Resolution 1325. This agenda has done much to shine light on the sexual violence perpetrated against women and girls in times of war. But what about the male victims – where do they fit into the picture?

 

Resolution 1325, passed unanimously in 2000, marked the beginning of the Security Council’s direct engagement with the issues of gender and sexual violence in armed conflict and has since served as the organising framework for the UN’s agenda on women, peace and security. The Security Council has subsequently passed a number of related resolutions on sexual violence, but only one resolution makes mention of male victims. Resolution 2106 notes that sexual violence in armed conflict “disproportionately affects women and girls, as well as groups that are particularly vulnerable or may be specifically targeted, while also affecting men and boys and those secondarily traumatized as forced witnesses of sexual violence against family members”. Evidently, there is a conceptual difficulty associated with including the male experience in an agenda otherwise focused on women and girls, and it seems that the best the Security Council has been able to do is include a passing mention.

In Resolution 1820, the Security Council notes that “women and girls are particularly targeted by the use of sexual violence, including as a tactic of war to humiliate, dominate, instil fear in, disperse and/or forcibly relocate civilian members of a community or ethnic group”. But the effects of sexual violence as a weapon of war are equally devastating when men and boys are targeted. In the same resolution, the Security Council also “[d]emands that all parties to armed conflict immediately take appropriate measures to protect civilians, including women and girls, from all forms of sexual violence, which could include … debunking myths that fuel sexual violence”. It is not clear exactly what the Security Council has in mind here, which leaves the impression that it is simply making a throwaway comment. A more detailed consideration of the myths fuelling sexual violence would help to shine light on both female and male experiences of sexual violence.

From the perspective of male victims, Resolution 1888 poses another issue. It “[e]ncourages leaders at the national and local level, including traditional leaders where they exist and religious leaders, to play a more active role in sensitising communities on sexual violence to avoid marginalisation and stigmatization of victims, to assist with their social reintegration and to combat a culture of impunity for these crimes”. But traditional and religious leaders are often highly complicit in conservative attitudes, which marginalise and stigmatise male victims of sexual violence. For this reason, the implication that they simply sit back and fail to do enough may misconceive their existing role, as well as their personal attitudes to male victims of sexual violence generally. In the Secretary-General’s report to the Security Council on conflict-related sexual violence, he made a similar recommendation to Member States and regional organisations “[t]o support the engagement of religious leaders … with the objective of curbing violent extremism, preventing the justification of sexual or other violence on religious grounds and addressing the stigmatisation suffered by survivors of sexual violences”. This recommendation appears to be worded in a slightly more appropriate way.

A cynic may note that Security Council resolutions are, by their nature, typically broad in scope and worded in such a way as to secure support from a diverse number of countries and (most importantly) all five permanent members of the Security Council. At any given time, at least some member states on the Security Council are probably unwilling to discuss male victims of sexual violence in a meaningful way.

However, this has not been an insurmountable problem. The Security Council has done more for male victims of sexual violence in armed conflict through resolutions establishing ad hoc international criminal tribunals than it has through resolutions under the agenda on women, peace and security. The International Criminal Tribunal for the former Yugoslavia (“ICTY”) has led the way in handling sexual violence in armed conflict under international law, despite the fact that it is only an ad hoc tribunal with strict geographic and temporal limits. Numerous cases before the ICTY have made specific mention of sexual violence against males during the Yugoslav Wars. For example, Prosecutor v Brđanin (Judgement), Prosecutor v Krajišnik (Judgement), and Prosecutor v Martič (Judgement) all make mention of sexual violence against males, often in the context of discussing sexual abuse or rape generally. In Prosecutor v Mucić (Judgement), the Chamber also noted that an act of forced fellatio between two men could have constituted rape “for which liability could have been found if pleaded in the appropriate manner”.

These cases have undoubtedly helped to shine light on inhuman and politically inconvenient wartime events. But it has not been smooth sailing. The current Deputy Prosecutor of the ICTY, Michelle Jarvis, has recently acknowledged that the Prosecution missed some opportunities to characterise sexual violence against males as rape. This reflects a wider issue before international criminal tribunals: the comparatively easier route of treating males as victims of torture or some form of ill-treatment other than sexual violence.

This approach follows, as a matter of course, in the judgments. For example, in Prosecutor v Tadić (Opinion and Judgement) – the very first case before the ICTY – the indictment included charges for “persecution, inhuman treatment, cruel treatment, rape … torture [and] wilfully causing great suffering or serious injury to body and health”. The incident in which one detainee in the Omarska Camp was forced to bite off the testicles of another detainee was subsumed by the Chamber under “inhuman treatment, wilfully causing great suffering or serious injury to body and health, cruel treatment and inhumane acts”, seemingly because it could not be classified as rape (the only charge of an explicitly sexual nature in the indictment). Although the subsumption of crimes of sexual violence under different categories may provide them with an important threshold of seriousness, it will still prevent the adequate prosecution of these offences.

Sandesh Sivakumaran, one of the first legal scholars to focus in depth on male victims of sexual violence in armed conflict, has developed an insightful framework for understanding how sexual violence against men has been handled in the ad hoc tribunals. It may have been: (i) mentioned but not characterised as sexual violence, (ii) mentioned and characterised appropriately, but without any consequences attaching or (iii) mentioned and characterised appropriately, with consequences arising therefrom. The first category would include the Tadić incident explained above, as well as an incident mentioned in Prosecutor v Simić (Judgement), where a police truncheon was rammed up the anus of a detainee. The Simić incident was explained under a sub-heading of the judgment titled “Evidence relevant to other acts”, which came under a chapter of the judgment entitled “Beatings, Torture, Forced Labour and Confinement under Inhumane Conditions”. The problem with this approach is that it does nothing to show the susceptibility of males to sexual violence, clearest when males are in detention and at their most vulnerable. The second category highlights judgements which carry the risk of insinuating that the sexual violence that occurred is not overly important when compared to other harms suffered. The third category is the clearly the most appropriate. An example is the approach taken in Prosecutor v Češić (Sentencing Judgement), which included an account of two Muslim brothers detained at Luka Camp and forced at gunpoint to perform fellatio on one another in the presence of camp guards. This incident was ultimately categorised as “sexual assault, constituting a crime against humanity (rape) and a violation of the laws or customs of war (humiliating and degrading treatment)”, to which the Accused pled guilty.

How do we explain the different approaches taken when the facts of a case show incidents of sexual violence? There is probably no satisfactory answer to this. Firstly, it must be appreciated that it was only with the creation of ad hoc tribunals in the 1990s that sexual violence was prosecuted under international law for the first time since World War II (sexual violence was not prosecuted at the Nuremberg trials, but it was at the International Military Tribunal for the Far East in Tokyo, following the “Rape of Nanking”). Secondly, attitudes towards and understanding of sexual violence against males are continuing to evolve. Thirdly, there have been 86 permanent or ad litem judges appointed to the ICTY since its inception and they have come from all corners of the world and from both sides of the traditional common law-civil law jurisdictional divide. This makes consistency in the prosecution and judgment of cases very hard to expect.

Consideration of sexual violence against males within the International Criminal Tribunal for Rwanda’s (“ICTR”) jurisprudence is much more limited than that of the ICTY. This could be reflective of a lower incidence of sexual violence against males during the Rwandan Genocide than during the Yugoslav Wars, but this cannot be determined with any authority in the absence of adequate information. In Prosecutor v Niyitegeka (Judgement and Sentence), an act of castration and hanging of the victim’s genitals on a spike was not characterised as sexual violence, possibly because it was deemed unnecessary to do so (given that the victim had already been killed and decapitated). Yet when dealing with the same count of the indictment, entitled “Crimes Against Humanity (Other Inhumane Acts)”, the Chamber did make mention of “sexual violence on the body of [a] dead woman”. This peculiar difference suggests an inability to conceive of castration by a male perpetrator as sexual violence. Consider also a harrowing account of the violence that occurred in a church in Prosecutor v Bagosora (Judgement and Sentence). Castration took place yet again and men (including priests and military observers) were forced to watch as women were raped and killed, with gendarmes beating the men with rifle butts if they averted their eyes. All aspects of their mistreatment in this scenario could be considered as sexual violence, but the Chamber did not treat the male experience in the same way. Although sexual violence was suffered here by men and women alike, the sexual aspect of the violence suffered by men was evidently lost in a sea of other disturbing details.

Australia has thus far played a positive role in the fight against impunity for conflict-related sexual violence. For example, the Australian government has developed a National Action Plan on Women, Peace and Security, to be implemented at home and overseas, in support of the UN agenda to which Resolution 1325 gave birth. But perhaps Australia can now advocate for a broader response to sexual violence, inclusive of the sexual violence that also affects males in wartime. Doing so will assist the work of any future ad hoc tribunals, possibly in South Sudan or Syria, as well as the ongoing work of the International Criminal Court.

 

Richard Hughes is a Juris Doctor candidate at the University of Melbourne Law School.