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Jurisdiction and Applicable Law Clauses in International Law: Where Does a Tribunal Find the Principal Norms Applicable to the Case Before It?
Whilst investors might be subject to a myriad of norms both at the international and domestic level, this alone does not necessarily provide an appropriate cause of action for environmental counterclaims. Accordingly, this chapter assesses possible causes of action for an environmental counterclaim in both contract-based and treaty-based investment arbitration, as well as the appropriateness of bestowing an arbitral tribunal with the power to entertain such counterclaims.
The 2003 Convention for the Safeguarding of Intangible Cultural Heritage (CSICH) was not intended to have legal repercussions in international trade. Nevertheless, intangible cultural heritage (ICH) may interact with trade regulation under various scenarios. The CSICH “Representative List” inscribes numerous ICH elements with real and potential international commercial aspects and consequent trade law implications. These emergent trade law–ICH regime dynamics require not only some critical reflection (for example, is safeguarding of ICH ultimately dependent on commodification or, at least in some cases, significantly prone to commercial capture?) but also doctrinal legal analysis. This article undertakes a survey of many plausible ICH–trade interactions (generally excluding intellectual property issues), providing an analytical framework with reference to a series of case sketches of selected CSICH inscriptions such as kimjang, beer culture in Belgium, and yoga. These and other cases may indeed raise issues under world trade law, including the General Agreement on Tariffs and Trade, the General Agreement on Trade in Services, the Agreement on Technical Barriers to Trade, the Agreement on Sanitary and Phytosanitary Measures, and subsidies regulation. Trade law may have underestimated the significance of ICH as a growing field. At the same time, ICH law may be developing without thinking through how it is impacted by commercial interests and international trade law.
This paper discusses the legal framework within which the jurisdiction ratione materiae of tribunals established under UNCLOS Part XV can be extended, at least incidentally, over non-UNCLOS issues. The analysis illustrates that, whilst UNCLOS Tribunals—like other international tribunals—have an incidental jurisdiction to determine incidental issues beyond the scope of their principal jurisdiction, a consistent and well-developed doctrine relating to such incidental jurisdiction is still lacking. The Chagos award provides some hints about the features of this jurisdiction, but essentially refers to judicial assessments which remain to a large extent discretionary. The same holds true when it comes to the determination of the legal effects of incidental determinations over external issues. In this paper it is argued that further clarification about such prominent aspects of the adjudication of law of sea disputes is needed. This would help achieving a better balance between the principle of consent and the principle of effectiveness in the exercise of Part XV jurisdiction.
This thesis addresses risks of multiple recovery, prejudice to legitimate interests of third parties, and inadequate consideration of the applicable law in shareholder claims in investment treaty arbitration. It challenges the application by investment tribunals of two basic premises: i) that shareholders are entitled to claim for damages vis-à-vis measures against the company in which they hold shares and ii) that ‘contract claims’ are to be distinguished from ‘treaty claims’. The central argument is that the failure to recognize substantive overlaps between shareholder treaty claims and contract claims risks more than one recovery, potentially prejudices third parties, and can lead to an incomplete application of the applicable law. The foundations of standing and the cause of action in shareholder treaty claims involve two complementary ideas of independence, i.e., independence of shareholder treaty rights vis-à-vis the local company’s contractual/national law rights and independence of treaty claims vis-à-vis contract claims. However, the substance of shareholder treaty claims, defined as the state measure and particularly the losses involved, is often identical to or at least overlaps considerably with related contract/national law claims. Prevailing ideas on shareholder standing and the cause of action in international investment law have provided useful conceptual tools for jurisdictional determinations. Yet they have not allowed tribunals and the literature to fully consider the implications of shareholder indirect claims. The thesis argues, first, that investment tribunals should acknowledge substantive overlaps between contract and treaty claims. Second, shareholder claims may be inadmissible when such overlap exists and there is a risk of double recovery or prejudice to third parties. Third, the substantive coincidence of treaty and contract claims calls for an integrated approach to the applicable law, where proper weight is given not only to IIA provisions but also to general international law and the national law governing the investment.
International lawyers and courts consider the principle of systemic integration to be a potential answer to difficulties arising from the fragmentation of public international law. This article questions the application of this approach in the context of human rights treaties. It is argued, first, that in many instances, systemic integration raises serious interpretational and jurisdictional concerns and, second, that systemic integration may give rise to a less diverse international law. Copyright
Introduction From the first report of the Appellate Body of the World Trade Organisation (WTO) in 1996 to Joost Pauwelyn's seminal work in 2003, commentators and practitioners alike have been grappling with the thorny relationship between the WTO and public international law. More recently, problems in interpreting and applying WTO provisions in the light of customary international law and non-WTO treaties have come to reflect a concern regarding ‘fragmentation’ of international law more generally. One reason for this potential fragmentation lies in the disparate dispute settlement mechanisms under various international legal systems, including preferential trade agreements (PTAs). As negotiations in the Doha Round sputter, and PTAs proliferate, the relationship between PTAs and other institutions and aspects of public international law becomes all the more crucial. States evaluating the benefits of PTAs must be fully aware of the broader international context into which they are born and the implications of international law as each PTA develops. Moreover, existing PTA members may seek additional certainty about their PTA rights and obligations and the likely outcome in the event of a dispute relating to other areas of international law. More broadly, an investigation into the relationship between public international law and PTAs provides an additional case study of the perceived problem of fragmentation of international law. In this chapter, we focus on two primary sources of public international law, namely treaties and customary international law.
A partir da reparticao sistemica interna do ordenamento juridico internacional, consolidando de certa forma a independencia dos regimes ambiental e comercial, potencializa-se a concorrencia de jurisdicoes competentes para solucionar os conflitos, bem como a aplicacao desconexa de diferentes normas que tutelam interesses comuns da sociedade. Nesse espectro, o presente artigo objetiva verificar o fenomeno que surge quando normas dos tratados multilaterais ambientais, que estipulam restricoes comerciais, conflitam com a questao da ampliacao do comercio internacional, mormente violando os principios nucleares da OMC da clausula da nacao mais favorecida e do tratamento nacional. Assim, atraves da analise de tratados internacionais, de jurisprudencia e de revisao bibliografica, demonstrar-se-a que as disposicoes dos tratados ambientais e comerciais interagem no cenario juridico internacional, denunciando que o sistema de livre-comercio inclina-se a adaptar a agenda ambiental entre as suas preocupacoes.
Dissenting Opinion) 557; A PelletArticle 38 The Statute of the International Court of Justice, above (n 21) 700, para 72 ('According to the usual analysis
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Dissenting Opinion) 557; A Pellet, 'Article 38' in Zimmerman et al (eds), The Statute of the
International Court of Justice, above (n 21) 700, para 72 ('According to the usual analysis... the
Court applies exclusively public international law ([Article 38] para 1)').
92 The case had the additional complication that the Special Agreement was silent on the law to be applied, and the parties' agreement on the application of the Convention arose in ZULWWHQDQGRUDODUJXPHQWOscar Chinn, ibid (van Eysinga J, Separate Opinion) 135
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92 The case had the additional complication that the Special Agreement was silent on the
law to be applied, and the parties' agreement on the application of the Convention arose in
ZULWWHQDQGRUDODUJXPHQWOscar Chinn, ibid (van Eysinga J, Separate Opinion) 135.
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(n 90) art 30(5).
Separate Opinion) 149–50. 95 Ibid, 150. This was before gained general acceptance Dissenting Opinion) 245 Cf above
- Oscar Chinn
94 Oscar Chinn, above (n 81) (Schücking J, Separate Opinion) 149–50.
95 Ibid, 150. This was before gained general acceptance.
106 [1950] ICJ Rep 65 (Read J, Dissenting Opinion) 245.
107 See above (n 9).
108 WTO Panel Report, WT/DS27/R/USA (adopted 25 September 1997),
para 7.98; WTO Appellate Body Report, WT/DS27/AB/R (adopted 25
September 1997), para 167.
109 WTO Appellate Body Report, ibid, paras 255(g) and (h). Cf above (n 57).
The Statute of the International Court of Justice, above (n 21) 700, para 72 ('According to the usual analysis
- See
See,
[1996] ICJ Rep 226 (Koroma J,
Dissenting Opinion) 557; A Pellet, 'Article 38' in Zimmerman et al (eds), The Statute of the
International Court of Justice, above (n 21) 700, para 72 ('According to the usual analysis... the
Court applies exclusively public international law ([Article 38] para 1)').
The Interpretation and Application of Municipal Law', above (n 78) 67. 88 It has been argued that under art 36(1) the Court is competent to decide non-legal quesMeeting
- Rosenne
Rosenne, above
(n 19) 525, fn 48; HF van Panhuys, 'Relations and Interactions between International and
National Scenes of Law' (1964) 112
1, 18-19, 21; Jenks, 'The Interpretation and Application of Municipal Law', above
(n 78) 67.
88 It has been argued that under art 36(1) the Court is competent to decide non-legal quesMeeting, 7 May 1958 (1958) I 32, para 71. The question concerned a draft of art 6(2) of
the 1958 Model Rules on Arbitral Procedure, which states that '[i]n the case of a sole arbitraof agreement between the parties, be decided by the International Court of Justice on the
application of one of them'.
89, above (n 33) (Evensen J, Dissenting Opinion) 279.
This was before gained general acceptance
- Ibid
Ibid, 150. This was before gained general acceptance.
106 [1950] ICJ Rep 65 (Read J, Dissenting Opinion) 245.
107 See above (n 9).
19) 525, fn 48; HF van Panhuys, 'Relations and Interactions between International and National Scenes of Law
- Rosenne
Rosenne, above
(n 19) 525, fn 48; HF van Panhuys, 'Relations and Interactions between International and
National Scenes of Law' (1964) 112