Mumbai Summer School - ICL Day 1

INTERNATIONAL COMMERCIAL LAW

NIMA MERSADI TABARI DICKSON POON SCHOOL OF LAW, KING’S COLLEGE LONDON MUMBAI SUMMER SCHOOL 14 APRIL 2014

INTERNATIONAL COMMERCIAL LAW

•  Transnational Law of International Commerce •  What is Commerce?

•  What is Law?

•  What is Transnational Law?

HOLISTIC APPROACH – THE ALIEN

•  Greek Law

•  Persian Empire

•  Jus Gentium

•  Empires of Faith

•  Byzantium.

•  The Holy Sea.

•  The Caliphate.

•  Gunboat Diplomacy

•  Pax Britannica.

•  Capitulation Treaties.

HOLISTIC APPROACH – THE ALIEN

“There shall not be one law at Rome, another at Athens, one now, another hereafter, but one everlasting and unalterable law shall govern all nations for all times.”

Cicero, de republica, 3.22.33.

as cited by Lord Mansfield in Luke v Lyde (1759) 2 Burr 882.

HOLISTIC APPROACH – LEX MERCATORIA

“Mercantile law is the same all over the world. For from the same premises, the sound conclusions of reason and justice must universally be the same.”

Lord Mansfield in Pelly v Royal Exch. Assurance Co., 97 Eng. Rep. 342, 346 (1757).

HOLISTIC APPROACH – LEX MERCATORIA

“No Shylock! Not a pound of flesh, I just had liposuction!”

HOLISTIC APPROACH – NATURAL LAW

Of Things Which Belong To Men In Common 1583-1645

ICJ – PEACEFUL SETTLEMENT OF DISPUTES

•  Negotiation •  Hatti-Egypt Peace Treaty 1269 BC

•  Arbitration •  Alabama Claims 1872 •  The Hague Conventions for the Pacific

Settlement of International Disputes 1899 and 1907.

•  Permanent Court of Arbitration

•  Conciliation •  The Hague Conventions for the Pacific

Settlement of International Disputes 1899 and 1907.

•  Bryan Treaties 1913 to 1914.


•  League of Nations "A general association of nations must be formed under specific covenants for the purpose of affording mutual guarantees of polit ical independence and territorial integrity to great and small states alike."

•  Permanent Court of International Justice •  1922-1940 •  Dissolved in 1946 •  29 contentious cases •  27 advisory opinions


•  The United Nations •  The International Court of Justice


• UN Charter, Article 92 The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter.

• UN Charter, Article 93(1) All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice.


• UN Charter, Article 2(3) All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

• UN Charter, Article 2(4) All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

• UN Charter, Article 33(1) The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

•  But note: Falklands, Lebanon, Iraq (1), Iraq (2), Iraq (3), Sudan, Iran, Syria and….

ICJ – COMPOSITION

•  The Bench •  15 Judges •  5 elected every 3 years

•  Simultaneous voting at the Security Council and the General Assembly •  Absolute majority in both

•  9-year tenure •  No dismissal •  Unless by other members

•  Representing main legal systems •  No specific quota but:

•  1 from each Permanent Member of the Security Council •  3 from Asia •  3 from Africa •  2 from Latin America •  1 from Eastern Europe •  1 from Western Europe and all other States

•  No more than one national of any State

•  Qualifications •  High moral character •  Qualified for appointment to the highest judicial office in their own country

ICJ – COMPOSITION

•  Ad hoc Judges •  President and Vice President

•  Elected for a term of 3 years •  Chambers

•  Composed of 3 or more •  Special Chamber for Environmental Matters •  Established as requested by the parties (ELSI, Frontier Disputes

and ..) •  Registry

•  Assist the Court

ICJ – JURISDICTION

• Contentious Jurisdiction •  Dispute •  Binding decision

• Advisory Jurisdiction • Question by

•  GA •  Security Council •  Other organs and special agencies of the UN

•  Not binding


• Mainline Jurisdiction •  Substance of the case

•  Incidental Jurisdiction •  Disputes as to its jurisdiction •  Conduct of the proceedings •  Interim measures •  Discontinuance of the case


• Consent • Compromis • Compromissory Clause (ICJ Statute, Article 36(1)) • Optional Clause (ICJ Statute, Article 36(2)) • forum prorogatum (Corfu Channel, Mavrommatis)


• ratione personae? • ratione materiae? • ratione temporis?

ICJ – APPLICABLE LAW

•  ICJ Statute, Article 38 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states ; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations ; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

TREATY INTERPRETATION


•  The Express Definitions •  The Embedded Interpretive Tools •  The VCLT •  The Incorporated Clues


•  The Express Definitions •  For the purposes of this treaty …


•  The Embedded Interpretive Tools

TREATY INTERPRETATION - WTO

•  WTO, Article IX(2)

The Ministerial Conference and the General Council shall have the exclusive authority to adopt interpretations of this Agreement and of the Multilateral Trade Agreements. In the case of an interpretation of a Multilateral Trade Agreement in Annex 1, they shall exercise their authority on the basis of a recommendation by the Council overseeing the functioning of that Agreement. The decision to adopt an interpretation shall be taken by a three-fourths majority of the Members. This paragraph shall not be used in a manner that would undermine the amendment provisions in Article X.

•  DSU, Article 3 (2)

The dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system. The Members recognize that it serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law. Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements.

•  DSU, Article 3 (9)

The provisions of this Understanding are without prejudice to the rights of Members to seek authoritative interpretation of provisions of a covered agreement through decision-making under the WTO Agreement or a covered agreement which is a Plurilateral Trade Agreement.

•  DSU, Article 16

An appeal shall be limited to issues of law covered in the panel report and legal interpretations developed by the panel.

TREATY INTERPRETATION – CISG

•  CISG, Article 7 (1) In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade.

(2) Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, inconformity with the law applicable by virtue of the rules of private international law.

TREATY INTERPRETATION – INVESTMENT TREATY ARBITRATION

•  ICSID, Article 42

(1) The Tribunal shall decide a dispute in accordance with such rules of law as may be agreed by the parties. In the absence of such agreement, the Tribunal shall apply the law of the Contracting State party to the dispute (including its rules on the conflict of laws) and such rules of international law as may be applicable.

(2) The Tribunal may not bring in a finding of non liquet on the ground of silence or obscurity of the law.

(3) The provisions of paragraphs (1) and (2) shall not prejudice the power of the Tribunal to decide a dispute ex aequo et bono if the parties so agree.


•  The Incorporated Clues •  Noscitur a sociis: Know it from its surroundings.

•  Ejusdem generis: Of the same kind.

•  Expressum facit cessare tacitum: What is expressed, renders what is implied silent.

•  Expressio unius est exlclusio alterious: The express mention of one, excludes the others.

•  The identical word presumption.


•  The VCLT •  Article 31. •  Article 32.

TREATY INTERPRETATION – THE VCLT 31

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

a. any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; b. any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3. There shall be taken into account, together with the context:

a. any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; b. any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; c. any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.

TREATY INTERPRETATION – THE VCLT 32

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31:

a. leaves the meaning ambiguous or obscure; or b. leads to a result which is manifestly absurd or unreasonable.

INTERNATIONAL LAW

•  ICJ Statute, Article 38 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states ; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations ; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

INTERNATIONAL LAW – TREATY LAW

•  ICJ Statute, Article 38 (1)(a) 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states.

INTERNATIONAL LAW – CUSTOMARY INTERNATIONAL LAW

•  ICJ Statute, Article 38 (1)(b) 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

b. international custom, as evidence of a general practice accepted as law.

INTERNATIONAL LAW – CUSTOMARY INTERNATIONAL LAW

•  Diutumitas (the objective element).

•  Opinio juris sive necessitates (the subjective element).

INTERNATIONAL LAW – GENERAL PRINCIPLES OF LAW

•  ICJ Statute, Article 38 (1)(c) 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

c. the general principles of law recognized by civilized nations. .

INTERNATIONAL LAW – GENERAL PRINCIPLES OF LAW

•  Good Faith •  The Loan Agreement Between Italy and Costa Rica, ¶14.

•  Sempra v Argentina (Award), ¶297.

•  Phoenix v Czech Republic (Award), ¶77.

•  Duty of Reparation for Breach of International Obligations •  Chorzów Factory (Jurisdiction), ¶2.

•  Unjust Enrichment and that the Party in Breach Shall Not Benefit form its Wrongful Act:

•  Saluka v Czech Republic (Partial Award), ¶449.

•  Chorzów Factory (Jurisdiction), ¶31.

•  Non-retroactivity

•  Phoenix v Czech Republic (Award), ¶77.

•  Duty of Mitigation of Damages by the Injured Party. •  Gabcíkovo-Nagymaros, ¶80.

INTERNATIONAL LAW – SUBSIDIARY MEANS

•  ICJ Statute, Article 38 1(d) 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

INTERNATIONAL LAW - WHAT ELSE?

•  ICJ Statute, Article 38 (2) 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

QUESTIONS?

Mumbai Summer School - ICL Day 1

Documents

Transcript of Mumbai Summer School - ICL Day 1