Treaty Now: Why denial of Indigenous self-governance is internationally unjust – Thomas Brennan

One of the most pointed criticisms levelled at the Turnbull Government in 2017 was its refusal to ratify the proposals of the Indigenous Referendum Council.

In the recommendations of their final report submitted to Prime Minister Turnbull, the Council proposed the creation of an advisory body representative of First Nation peoples to work with the legislature in order to address constitutional inequalities facing Indigenous Australians. The recommendations further included interpreting (or possibly even amending) the power to make laws with respect to ‘any race’ under s 51 (xxvi) as well as establishing an additional legislative committee to oversee the process of ‘truth-telling’ in drafting treaties with respect to Indigenous Australian Sovereignty at a Federal level. This relationship was encapsulated in the word ‘Makarrata’, which denotes a relationship of honesty and candour amongst leaders within the Yolgnu people of Arnhem Land.

(‘Request for Treaty’ by Michael Coghlan/Flickr)

The Turnbull Government defended their position on the grounds that the proposals were unclear in their intent and, in any event, could be so radical that they would create a parliamentary ‘third chamber’, which would prove divisive amongst Australians. This article will explore what models the Referendum Council may wish to pursue with reference to domestic and international notions of representation and sovereignty.

Read More

The Treatment of Bitcoin across Different Jurisdictions – Anja Kantic

Bitcoin has taken the world by storm as the most popular cryptocurrency. Bitcoin is a means of peer-to-peer transacting with no middleman institutions or banks, no transaction fees and no delay in transfer between parties all around the world. This ease and convenience makes it a popular alternative to conventional banking, in spite of its fluctuating and volatile value.

It is useful to explore the treatment of Bitcoin across different jurisdictions in order to understand how it functions and how it will affect transacting in the future.

Read More

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.

Read More

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).

Read More

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.  

Read More

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.

Read More

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).

Read More

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.

Read More

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.

Read More

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.

Read More