Yukos v Russia – Banality After the Hype

Early last week, the interim awards on Jurisdiction and Admissibility in Hulley Enterprises Limited (Cyprus) v. The Russian Federation ,Yukos Universal Limited (Isle of Man) v. The Russian Federation,  and Veteran Petroleum Limited (Cyprus) v. The Russian Federation were published unilaterally by Sherman & Sterling.

Collectively, these three decisions might be thought of as Yukos v Russia -  all three claimants were shells designed to hold parts of the shareholding of Yukos for the managment and staff of Yukos and all claimed for losses suffered as a result of the bankruptcy of Yukos in 2008 that was said to be  caused for reasons ultimately attributable to the Russian Federation.

Perenco v. Ecuador: Consensual Arbitrator Challenges

The Kluwer Arbitration Blog summarises why consensually circumventing the ICSID Convention procedure in Article 57 & Article 58 to disqualify an arbitrator by an external mechanism (through the Permanent Court of Arbitration in this case) is incorrect.

It is clear that the challenge to Judge Brower was not a proper one under the ICSID Convention. From an ICSID perspective, the decision of the PCA is a nullity. Indeed, the fact that Judge Brower had to resign voluntarily from his appointment as arbitrator after the PCA’s decision was rendered speaks volumes as to the validity of such proceedings. In fact, to the extent that Judge Brower had refused to resign, it is difficult to see how Ecuador would have had any remedy other than to start again and to propose his disqualification in accordance with Articles 57 and 58 of the Convention, which in turn would have provided a higher hurdle to overcome.

via Kluwer Arbitration Blog » Blog Archive » Perenco v. Ecuador: Was there a valid arbitrator challenge.

I do think there should be some reservation in the analysis adopted, especially the presumption of mandatory application of all provisions of the ICSID Convention ousting any scope for the consent of the parties in the conduct of the reference, which does seem to underlie parts of the analysis.

The Future of Books

Here’s a riddle: How do you make your book a best seller on the Kindle?

Answer: Give copies away.

That’s right. More than half of the “best-selling” e-books on the Kindle, Amazon.com’s e-reader, are available at no charge.

Although some of the titles are digital versions of books in the public domain — like Jane Austen’s “Pride and Prejudice” — many are by authors still trying to make a living from their work.

via With Kindle, Publishers Give Away E-Books to Spur Sales – NYTimes.com.

Publishers resent it, authors fear it, and the public loves it. That third bit is why this is the future of books. No matter what the publishing industry believe, the Kindle and other e-readers are breaking the old model of the book business. The only question will be what the fall out will look like and how fast (if at all) the existing players adapt.

The Inherent Jurisdiction of ICSID Tribunals: Rompetrol v Romania

The Rompetrol Group N.V. v. Romania, ICSID Case No. ARB/06/3 (Netherlands/Romania BIT) – Decision on the Participation of Counsel

The tribunal in Rompetrol v Romania was faced with a rather unique application. The Respondent  sought an order  requiring  the Claimant to remove their from the case and to forbid him from participating  any further in any way.

Secret Files

One night in the mid-1990s when I was working as a journalist in Beijing, I went out to dinner with some Chinese friends. I had just finished reading a book called “The File” by the British historian Timothy Garton Ash. It’s about what happened in East Berlin after the Berlin Wall came down and everybody could see the files the Stasi had been keeping all those years. People discovered who had been ratting on whom—in some cases neighbors and co-workers, but also lovers, spouses and even children. After I described the book to my Chinese dinner companions—a hip and artsy intellectual crowd—one friend declared: “Some day the same thing will happen in China, then I’ll know who my real friends are.”

The table went silent.

via Rebecca MacKinnon: Google Gets On the Right Side of History – WSJ.com.

The Inherent Jurisdiction of ICSID Annulment Committees: RSM v Grenada

RSM Production Corporation v. Grenada, ICSID Case No. ARB/05/14

In RSM v Grenada the claimant  applied to the Annulment Committee for it to make a finding of fact after the original arbitral tribunal was functus officio. RSM relied on the inherent jurisdiction of the Annulment Committee to support the application.

Appeasement

Appeasement is much harder to accomplish than it seems. It is not just a matter of saying to the stronger side, There you go, have what you want, it’s all yours, just sign on the dotted line. The appeaser much accomplish two crucial tasks.

First, the appeaser must, to the greatest extent possible, disguise the fact that he is appeasing. He must portray himself as a peacemaker, as a man who has prevented or ended a war on decent terms.

…

Second, the appeaser much persuade the victim to cooperate…[i]f the victim resists, the appeaser is in a bind, because euthanasia turns into murder, and, instead of being a benevolent guide, soothing the victim as it is put to sleep, the appeaser must hold down the screaming victim as the terminal injection is administered. It is a very nasty business.

From Love Thy Neighbor: A Story of War by Peter Maass via the excellent Michael Totten

Russia Approves Protocol 14 to the ECHR

The lower house of the Duma has approved Protocol 14 to the European Convention on Human Rights.  Russia has been the holdout country in ratifying Protocol 14, which the other 46 participating nations had all approved by 2006.

Protocol 14 is largely a procedural reform to the speed up the court’s work by reducing the number of judges required to make major decisions.  The Strasbourg Court has been the subject of complaints due to the extremely large backlog of cases, especially against Russia.  

The Human Rights Committee’s Views in Sayadi v. Belgium: A Missed Opportunity

Abstract: The article provides a critical review of the Human Rights Committee’s views in Sayadi v. Belgium, a case dealing with United Nations Security Council (UNSC) terrorist blacklists. The case raised many complex issues of international law, most notably the question whether UNSC resolutions can prevail over human rights treaties by virtue of Art. 103 of the UN Charter. This issue – one of truly fundamental importance – has cropped up in several important recent cases which either addressed it or avoided it, including Kadi before the courts of the European Union, Al-Jedda before the UK House of Lords, and Behrami before the European Court of Human Rights. Regrettably, the Committee’s decision did not do justice to the complexity and the gravity of the matters raised before it, as it failed to tackle the norm conflict issue head on and ignored the Charter’s supremacy clause altogether. Such an approach advances neither the cause of human rights, nor the coherence of international law as a legal system.

Review: This is an interesting little article that builds out the centrality of Art 103 of the UN Charter and its increasing importance in a world where the UNSC is adopting a policing function rather than a tribunal of last resort. A raft of cases have dealt with the conflict between UN Charter obligations and IHR instruments in different ways. This article is a good overview of the case law if you’re not familiar with this particular area although Sayadi v Belgium itself contributes nothing to the jurisprudence (which is the author’s main criticism of it).

Details: Marko Milanović (Belgrade Centre for Human Rights), The Human Rights Committee’s Views in Sayadi v. Belgium: A Missed Opportunity (Goettingen Journal of International Law, Vol. 1, No. 3, p. 519, 2009).

Link

Did Obama Just Endorse the Responsibility to Protect?

And this becomes particularly important when the purpose of military action extends beyond self-defense or the defense of one nation against an aggressor. More and more, we all confront difficult questions about how to prevent the slaughter of civilians by their own government, or to stop a civil war whose violence and suffering can engulf an entire region.

I believe that force can be justified on humanitarian grounds, as it was in the Balkans, or in other places that have been scarred by war. Inaction tears at our conscience and can lead to more costly intervention later. That’s why all responsible nations must embrace the role that militaries with a clear mandate can play to keep the peace.

- Barack Obama, Nobel Peace Prize Acceptance Speech.

This is Obama, and therefore the United States for which he speaks, endorsing the ‘strong’ version of the Responsibility to Protect (R2P) which justifies intervention outside, and without recourse to, the UN.