2/24/2023 Subversion of International Law: Russia’s Recognition of Donetsk and Luhansk as Independent StatesRead NowThis article is authored by Kiara Dsouza, a Student of Law at NALSAR University of Law.
Introduction Russia’s military action against Ukraine which began on February 24, 2022, has been widely condemned by the international community as violative of the fundamental principles of international law. The conflict traces back to April 2014, when separatists gained control over the Donbas region with the help from Russia. The subsequent ‘referendum on independence’ on the 11th of May resulted in the declaration of the People’s Republic of Luhansk and the People’s Republic of Donetsk as quasi-independent entities by the separatists. This was condemned as violative of Ukraine’s sovereignty and territorial integrity and consequently declared illegal, remaining unrecognised by all states except for Russia. Months later, a peace deal, now known as the Minsk Protocols,was signed between Ukraine, Russia, the Organization for Security and Co-operation in Europe (OSCE) and the pro-Russia rebels in September 2014 and later, in February 2015, to end the fighting in the region. However, following Russia’s illegal recognition of Donetsk and Luhansk as ‘independent states’and its ratification of“Treaties of Friendship, Cooperation and Mutual Assistance” with the leaders of those regions in 2022, a war was inevitable.Such recognition of these entities as “states” is violative of the principles of the territorial integrity of states. Unilateral Secessions are looked upon with suspicion in the international community. Remedial secession is still widely debated in international law, and even if permitted such as in the case of Quebec, it is only as a last resort when there are multiple human rights abuses, and internal self-determination had been denied. This pieceexplores the illegality of the recognition of Donetsk and Luhansk under international law. It looks at the right of self-determination, secession and the laws on statehood, specifically in light of the Donbas region to show that Russia’s actions of recognition violate the fundamental principles of international law and that the regions of Donetsk and Luhansk do not have a right to form separate states, nor are they presently recognised as such by the international community.It further touches upon these concepts in international law, exploring the current status of these entities and the ramifications of recognition. The Right to Self Determination The right to self-determination is found in the charter of the United Nations and in multiple international treaties. It denotes the legal right of peoples to determine their fate in the international system. The right of self-determination includes secession and independence from the parent state, which is known asexternal self-determination and granting a‘people’ of the region their right to “choose their political status and pursue their economic, social and cultural development,” within the parent state itself, which is internal self-determination.However, as noted by eminent authors such as Malcolm Shaw, state practice does not support the use of the self-determination principle by certain groups to secede from already independent parent states. such as in the present situation, whereUkraine is an existing, independent state, and therefore, the principle to unilaterally secede will not apply to Donetsk and Luhansk. Accordingly, the principle is compatible with the idea of territorial integrity, since it ceases to apply in cases of states that have already achieved independence from the colonial rule, except, arguably, in extreme situations. In light of this, while the Minsk Accords can be seen as an attempt to provide for internal self-determination, external self-determination is not a unilateral right that a ‘people’ can invoke at will. Secession and Territorial Integrity The territorial integrity of states is a fundamental principle of international law. The right to self-determination, as held by the Canadian Supreme Courtin the Reference Re Secession of Quebec case, is to be exercised “within the framework of existing sovereign states and consistently with the maintenance of the territorial integrity of those states.”The Court held that a right to secession arises in the most extreme cases, under “carefully defined circumstances,”when ‘people’ are under colonial domination or alien subjugation, where they are denied meaningful access to the right to self-determination within the state.According to the author, while unilateral secession may not be absolutely prohibited,it is highly limited to the extent that it does not impact the territorial integrity of sovereign and independent states.This isembodied in the ‘safeguard clause’ of the Friendly Relations Declaration, which explicitly states that the exercise of a right to self-determination shall not be construed asauthorizing or encouraging any action which would dismemberor impair, totally or in part, the territorial integrity or politicalunity of sovereign and independent States conductingthemselves in compliance with the principle of equal rightsand self-determination of peoples as described above, and thuspossessed of a government representing the whole peoplebelonging to the territory without distinction as to race, creed,or colour. Russia claimed that Ukraine’sdenial of the right to self-determination to Russian speakers, and grave crimes such as genocide against minorities in the Donbas regionwere grounds for the unilateral right to secession of the ‘people’ of the Donbas region. The recognition of Donetsk and Luhansk as independent states was condemned by the UN Secretary-General as violative of the territorial integrity and sovereignty of Ukraine, and inconsistent with the Charter of the United Nations.The Ukrainian government has also denied all claims of genocide and the same was pronounced by the International Court of Justice (“ICJ”). Thus, Russia’s argument for unilateral secession does not conform to the principles of international law and the people of the Donbas region do not have a valid right to external self-determination by way of secession, and continue to be part of the territory of Ukraine. Recognition as a criterion for Statehood Recognition is the act by which an entity is recognised as a state. The legal criteria for statehood is found in Article 1 of the Montevideo Convention of 1933, which is considered to be the “core of the concept of statehood.”According to the Convention, in order to qualify as a state, itmust have (a) a permanent population, (b) a defined territory, (c) government and (d) the capacity to enter into relations with other states. Recognition by other states is how a government may demonstrate its capacity to enter into relations with other states as well as its political independence. However, the lawfulness of the creation of a state is important. Without this, an entity may not be legally considered a state. Such lawfulness must comply with principles of international law, especially those of territorial integrity, non-interference and legitimate use of self-determination. Violation of peremptory norms such as the prohibition on the use of force, or fomentation of the insurrection by another state, renders declarations of independence illegal. The creation of the “People’s Republics” of Donetsk and Luhansk results in a violation of these very principles of international law. Furthermore, Donetsk and Luhansk do not meet the requirements of statehood. People of the region are citizens of Ukraine and the only legitimate government is the Ukrainian Government. Further, these entities have not been recognised by other states or international organisations. Violation of peremptory norms and the Duty of Non-Recognition The ability to recognize new states and territories is limited in international law through the duty of non-recognition, where States have a legal obligation not to recognise a State or territory, in certain situations. For example, States are under a duty of non-recognition in cases of illegal intervention and fomentation of the secession of part of a State. Non-recognition is a part of the substantive obligation of respect for peremptory norms of international law. Recognition by other Statesis therefore unlawful where an entity does not meet the required criteria for statehood, the criterion being a peremptory norm of international law. In its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the ICJ found that the construction of a wall by Israel around the Occupied Palestinian Territories was a violation of fundamental international law principles, and noted the positive obligation on all States to not recognise an illegal situation. Moreover, the ILC Articles on State Responsibility lay down a specific obligation of non-recognition in Article 41. The obligation, as noted in the commentaries to the Draft Articles, are particularly important in cases where a State’s breaches of jus cogens norms include situations resulting from the use of force to acquire territory. Article 40 (2) has noted that States shall not recognize a situation which has been created by a serious breach of a peremptory norm of international law as lawful. As noted by Crawford, the principle of non-intervention in the internal matters of a State also include the principle of the prohibition of the use of force, which is a peremptory norm of international law.Entering into force in 1965, theDeclaration on the Inadmissibility of Intervention in the Domestic Affairs of States emphasised that Statesdo not have the right to intervene directly or indirectly, in the internal or external matters of another state and condemned armed intervention against the personality of States. It also stated that the use of force constituted a violation of the principle of non-intervention. This was reaffirmed in the Declaration on Friendly Relations in 1970. Furthermore, Article 2 paragraph 4 of the Charter of the United Nations prohibits the “threat or use of force against the territorial integrity or political independence of any State or any other manner inconsistent with the purposes of the United Nations”. The Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations has reiterated this principle, deeming it to be binding on all States. This principle is now perceived to be reflective of customary international law. The illegality of declarations of independence stemming from the unlawful use of force by a state has also been confirmed by the ICJ in its advisory opinion on the unilateral declaration of independence in respect of Kosovo. Illegality of Russia’s Recognition Since the entities of Donetsk and Luhansk have failed to meet the basic criteria for statehood as aforesaid, Russia’s recognition of these regions as independent States violates the sovereignty of Ukraine and breaches fundamental principles of international law such as those of territorial integrity, non-intervention, as well as the prohibition on the use of force enshrined in the Charter of the United Nations and other resolutions, and repeatedly reaffirmed by the ICJ. Further, in cases which entail the use of force or military action such as Russia’s invasion of the Donbas region, the element of coercion is present and is violative of the principles of non-intervention. Russia’s intervention has been ongoing since April 2014. In such a situation, therefore, the recognition of Donetsk and Luhansk would be tainted by the use of force and coercion and the recognition would be manifestly illegal. Russia’s recent recognition to justify the direct invasion of Ukraine has made this a serious breach of the prohibition of the use of force, triggering the obligation of collective non-recognition as discussed above, which has found continued acceptance in international law. Russia has not only breached these fundamental principles and norms, but also specific agreements such as the Budapest Memorandum, which, although non-binding,still guaranteesthe territorial sovereignty and integrity of Ukraine. Russia has also breached the Minsk Accord, which was endorsed by the UNSC’s resolution in 2022.The entities of the Donbas region have not been recognised as States by any other nation, nor by any international organisations. In fact, in March 2022, the UN General Assembly, supported by 141 States adopted a resolution which reaffirmed the sovereignty of Ukraine and termed Russia’s recognition as violative of the principle of territorial integrity and the Charter of the United Nations, going so far as to call upon Russia to reverse its decision and revoke the recognition. Conclusion Two separatist entities now constitute ‘States’ for Russia, and this is, in principle, adecision, having broad ramifications. Russia will now be able to enter into bilateral agreements with these“States”, as envisaged by the Vienna Convention on the Law of Treaties. Russiahas alreadyentered intotreaties on friendship, cooperation and mutual aid with these entities. Moreover, Russia,following the act of recognition,no longer considers itself bound by rights and obligations intrinsic to Ukrainian statehood such as principles of non-intervention in internal affairs and the preservation of territorial integrity. Russia has already begun an armed attack against Ukraine under the guise of aiding these ‘States’ in self-defence under Article 51 of the UN Charter. Since Donetsk and Luhansk do not meet the criteria for statehood and are not States in international law, these territories of the Donbas region remain under Ukraine’s sovereignty. Recognition by Russia has therefore violated the territorial integrity and sovereignty of Ukraine. As Lauterpacht has noted, recognition in situations such as this are an “international delinquency”. Despite its denials, Russia has been involved in the armed conflict by providing weapons and other support to the rebels. The declaration of independence is thus, accompanied by violations of jus cogens norms of non-intervention and also the prohibition of the use of force. Consequently, Russia’s recognition of the territories of Donetsk and Luhansk as independent States should be regarded unlawful, and these regions are to remain a part of Ukrainian territory. It thereby follows from this that any ‘military operation’ in order to aid these regions in securing ‘independence’ would be manifestly illegal.
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This article is authored by Mayank Jain and Varun Agrawal, Students of Law, BA. LL.B (Hons.) at Jindal Global Law School.
Introduction In a world where seaway is the most preferred route for international trade, it is important to ensure the safety of vessels on the high seas. Here, the concept of the nationality of ships and the consequent flag State jurisdiction acts as the main catalyst for the maintenance of order on international waters. Art. 91 of the United Nations Convention on the Law of the Sea (UNCLOS) and Art. 5 of the Convention on the High Seas states the requirement for States, as per their national legislations, to elaborate the conditions necessary for the grant of its nationality to ships, and for the right to fly its flag. However, this provision also contemplates a limitation, i.e., the requirement of a genuine link between a State and the ship which flies its flag. However, the term ‘genuine link’ is not defined in either of the Conventions. This lack of definition leads to ambiguous interpretations which, in turn, complicates the enforceability of the flag State regime on the high seas. Furthermore, with the advent of open registries and the Flag of Convenience (FoC) - the positioning of the requirement of genuine link gets further convoluted in the context of international maritime law. Therefore, from a policy perspective, there is a need to reimagine the meaning and role of the concept of ‘genuine link’ in the flag State jurisdiction regime to tackle these newfound issues, which the current regime falls short to address. This piece tasks itself with the same objective. Current understanding of the term – Genuine Link Out of the limited number of cases in International Courts and Tribunals, that have discussed the issue of genuine link, the M/V Saiga case is of considerable importance. Here, the International Tribunal for the Law of the Sea (ITLOS) held that the purpose of ‘genuine link’ is only ‘to secure more effective implementation of the duties of the flag State, and not to establish criteria by reference to which the validity of the registration of ships of a flag State may be challenged by other States’. In other words, the Tribunal observed that the existence of a genuine link was not relevant to the question of the nationality of a ship but only for the exercise of the effective flag State jurisdiction. The grant of nationality was a question within the ‘exclusive jurisdiction’ of a State and not a question to be decided in international courts. However, this interpretation is difficult to accept, given that the requirement of a genuine link is mentioned in Article 91 of UNCLOS which deals with the nationality of ships, and not under Article 94 dealing with the exercise of effective flag State control over the ship. This position was continued in several later judgements by the European Court of Justices and thus, is open to the same criticism and comments. Genuine Link as a Pre-condition Given that genuine link does not have established meaning in international law, using general rules of interpretation under Article 31 of the Vienna Convention on the Law of Treaties (VCLT) to interpret the meaning of the term becomes redundant, at best uncertain. In light of this uncertainty, it becomes pertinent to employ the supplementary sources of interpretation stated under Article 32 VCLT - the preparatory work of the treaty (travaux preparatoires) and the circumstances of its conclusion- to ascertain genuine link as a pre-condition. However, the travaux preparatoires of UNCLOS shed very little light on the meaning of the term ‘genuine link’ as it had no draft articles or body of experts to decide upon the provisions. Therefore, one can instead make use of the travaux preparatoires of the Geneva High Seas Convention 1958, where the phrase ‘genuine link’ was in fact first codified and subsequently repeated in Article 91 UNCLOS. Here, during the ILC discussions, the requirement for a minimum set of conditions to ensure the effective exercise of jurisdiction over the ship was emphasised. The Commission suggested that the nationality of the crew members or the ownership of the ship by the State should be a criterion to ensure some link between the ship and the State at the time of registration. However, many States objected to this fixed and specific set of conditions for the registration of ships given the variance in State practices and apprehensions pertaining to open market economy principles. Considering this, the Netherlands, instead, proposed the use of the phrase ‘genuine link’ between the State and the ship as a general formula for deciding on the ship’s nationality which received wide acceptance. This proposal came in light of the Nottebohn case, where the International Court of Justice (ICJ) held that the recognition of the nationality of an individual by other States is contingent upon a ‘genuine connection’- a legal bond having in a social fact of attachment between the individual and the State whose nationality it is claiming. Therefore, the drafters intended to use a ‘genuine link’ as a precondition to the registration process of a ship. However, the phrase in the Article regarding the same (‘genuine link for purposes of recognition of the national character of the ship by other States’) was deleted in the final draft due to the vague nature of the term ‘genuine link’ and hence, it never got codified. At the same time, various State parties to the Convention agreed to further develop and elaborate the concept of ‘genuine link’ on a subsequent occasion. This occasion came in 1986, with the drafting of the United Nations Convention on Conditions for the Registration of Ships, whose provisions try to strengthen the ‘genuine link’ requirement by adding criteria of the nationality of manning staff and ownership of the ship. The Convention has still not come into force, showing the reluctance of various nations to create a system where there is a proper link between the ship and the flag State. The FoC Menace FoC refers to a practice whereby vessels carry the flag of a sovereign state that is different from the State of origin of the owners. The reason for adopting this common practice is mostly to evade regulations and escape administrative fees. States like - Panama, Liberia, and the Marshall Islands are said to have the most ships registered under their name which allows the owners to easily avoid liabilities. Ghana’s 2002 Fisheries Act aimed at securing the fishing benefits solely for its nationals, whereby it banned foreign ownership in the trawl sector. Only Ghanaian nationals were allowed to operate and consequently, this ‘nationality criteria’; underpinned by the said Act was able to somewhere meet the ‘genuine link’ requirement as postulated in Art. 91 UNCLOS. However, the said legislation failed to prohibit ‘fronts’ and ‘shells’ operating in Ghana. An investigation by China Dialogue has found that nearly seventeen trawlers belonging to local companies, acting as ‘fronts’ for the Chinese State enterprise, Dalian Mengxin Ocean Fisheries are registered under the Ghanaian flag. This organisation has committed multiple illegal fishing offences, however, the Ghanian sanctions are only applicable to the registered owners, i.e., the local companies, and not the beneficial owners, i.e., the Mengxin enterprise. Resultantly, despite repeated violations, Mengxin was able to renew its licenses and usurp the benefits that were secured for the Ghanaian nationals due to the practice of FoC. If the ‘genuine link’ requirement is seen only as a duty for the effective control and jurisdiction of the vessel and not a pre-condition while granting a ship its flag, the menace of flag hopping will never be curbed. Various instances such as that of violations by the Wisdom Seafarer have highlighted the problem of flag hopping. This vessel was originally flying the flag of Honduras and when the State began legal proceedings against the vessel, the Fearer changed its flag to Bolivia, Moldova, etc., due to which enforcement proceedings were delayed. All these issues have arisen merely because of the lack of a condition stipulating a ‘genuine link’ while exercising FoC, Since there exists no ‘genuine link’ between the shipping vessel and the State that grants its flag as mentioned in Art. 91 UNCLOS, such States are conveniently able to shrug off any legal responsibility. Recently, the British Royal Marines impounded a vessel, Grace 1, for carrying Iranian crude oil to Syria, thus violating the sanctions imposed by the European Union. This vessel was registered under the flag of Panama. What followed the impoundment was the delisting of the ship by Panama. Resultantly, no State was now accountable for the actions of Grace 1 on the high seas, thus, defeating the objective stated in Paragraph 4 of the UNCLOS Preamble, i.e., to maintain law and order on the high seas. Since Grace 1 and many other vessels that were delisted by Panama post the UK-Iran feud was registered under the FoC, there existed no ‘genuine link’ between the vessel and the Flag state, thereby, creating a defence mechanism for such a nation to easily evade liability. Conclusion The current understanding of ‘genuine link’ is the triumph of formality over substance. Interpreting ‘genuine link’ as a mere formality of ensuring the effective exercise of control post the registration process and not as a pre-condition to it, defeats the patent purpose with which the concept was incorporated. Given the widespread and ravaging practice of FoC and open registries, the more sensible approach would be to sync the concept in line with the holding of the Nottebohn case as has been done by the Registration Convention. Using genuine link as a precondition to the registration of a ship with a State and providing a standard criterion for the same, would provide stability on international waters by creating greater accountability for both the States and the vessels flying the flag of such State. 1/11/2023 Finally Placing Accountability: Hybrid Court Being Set Up in South Sudan - Part IIRead NowThis article is authored by Ahan Gadkari, a Final Year Student of Law at Jindal Global Law School.
The Agreement Establishing the Hybrid Court The 2018 agreement, which includes the hybrid court initiative just described in the previous part of this piece, lays out the territory of ending hostilities in South Sudan and putting into effect a set of procedures meant to ensure lasting peace and unity in the nation. Therefore, it aims to show the way to finally establish a lasting peace, which is predicated on “the restoration of dignity to South Sudanese citizens,” “the fight against impunity for the commission of international crimes,” and the reconstruction of the truth regarding past violations and the structural causes of episodes of political violence. After laying out the structure and authority of the transitional government in detail, the document declares a permanent ceasefire and includes several commitments regarding the release of prisoners of war, the cessation of violent acts, South Sudan’s compliance with international standards for the protection of human rights, and the protection of civilians. Chapter V of the 2018 agreement refers to the need of using instruments of reconciliation and transitional justice and particularly calls for the establishment of a hybrid court for these ends. Entitled “Transitional Justice, Accountability, Reconciliation, and Healing,” begins by stating that the transitional government of South Sudan commits to supporting the adoption of the legislation necessary to establish three institutional mechanisms of transitional justice: Truth and reconciliation (Commission for Truth, Reconciliation, and Healing, CTRH); an independent judicial apparatus, which takes the name Hybrid Court for South Sudan (HCSS); and a Truth and reconciliation commission (CRA). The mechanism created by the three organisations would work toward helping the truth come out, sparking reconciliation efforts, and compensating and reimbursing victims. Domestic legislation, which is expected to be approved considering the government’s pledge, will be responsible for outlining the mission and authority of the three separate entities. To evaluate previous abuses of international law and human rights in a reconciliatory context, each of the three bodies would obviously be entrusted with different powers. The commitment to prosecute those responsible for international crimes by judicial means is not left as a political choice within the country, but instead fully responds to the commitments undertaken by South Sudan at the international level and the three institutions can best fulfil the task of establishing peace and restoring dignity and justice to the victims when they work together. The African Union found that the measures outlined in Chapter V of the 2018 agreement were suitable for the African and South Sudanese context. What is Next? Now more than ever, actions need to match words. Human Rights Watch, an NGO that has been monitoring the situation in South Sudan since the war broke out, has publicly reaffirmed “how critical accountability is to repairing the country’s social fabric and to the healing of victims. All parties to the conflict have committed war crimes and possibly crimes against humanity. Reckoning with South Sudan’s history through fair, credible trials, along with truth telling and reparations, will serve justice to victims and chart the away for future generations.” South Sudan’s national authorities’ dedication and readiness to set up and support a hybrid strategy to addressing international crimes is crucial to its success. The South Sudanese civil society group had previously urged the African Union Commission to independently go through with the establishment of the Court, but this prospect had left them sceptical. Given the enormous challenges that may still lie ahead on the path leading to the operation of this Court, other subjects have invited the African Union to reserve the possibility - as plan B - to proceed in this way separated from South Sudan, should the government still delay in issuing the legislation required by the agreement to establish the Court in cooperation with the African Union, thus basing the initiative solely on the provision, contained in Chapter V of the 2018 agreement, that the Court shall be established by the African Union. However, if South Sudan were to act as an impediment to the Court’s functioning, the cooperation and arrest of those responsible would become much more difficult. Since South Sudan is not a State Party to the Rome Statute, the intervention of the International Criminal Court would necessitate either a declaration by the government of South Sudan of voluntary acceptance of the jurisdiction of the Court (a scenario, at the present time, little plausible) or, alternatively, the referrals by the UN Security Council to the Court. Like the war crimes chambers in Bosnia and Herzegovina, some analysts have envisioned a gradual shift from a hybrid court to a permanent institution, based on the legal system, which becomes the natural judge for international crimes. The victims of the war, who have had severe traumas due to the continued reign of terror, would also benefit from the establishment of a hybrid court as a fort signal. The pervasive belief that South Sudan’s transitional justice is “retributive and foreign” was underlined in recent schooling. South Sudanese communities’ input towards the development of transitional justice initiatives that live up to their hopes is, therefore, crucial. The 2018 agreement includes two separate orders of protection for victims: the first ensures that victims, like witnesses, are afforded protection in accordance with applicable international law and practise; the second recognises that victims may be the recipients of reparations, compensation, and other remedies within the purview of the hybrid court. One of the most challenging future strategic concerns to specify is the total number of defendants who must be tried in Court. There is a wide range of precedent in international justice; although the exceptional chambers in Senegal have only dealt with Hisséne Habré, the special Court in Sierra Leone has tried as many as 23 people. The ruling must consider real-world factors including available resources and the passage of time, both of which have historically been major roadblocks for international courts. Conclusion The government’s public pledge to create a hybrid court suggests significant changes are coming to investigating and prosecuting international crimes. First, the African Union and its member states have a verified scepticism of the International Criminal Court, additionally South Sudan has chosen not to join the Rome Statute, instead advocating for “African solutions to African issues.” Second, this endeavour is a part of what is being called the “second generation of hybrid courts”; following the 2015 establishment of the Special Court for the Central African Republic, the Kosovo Specialist Chambers opened in The Hague that same year, and similar solutions have been proposed for Sri Lanka, Myanmar, and Ukraine. When this happens, we will have to look back at how prior mixed criminal courts have operated to see what strategies have been most successful in the past and implement them. 1/11/2023 Finally Placing Accountability: Hybrid Court Being Set Up in South Sudan - Part IRead NowThis article is authored by Ahan Gadkari, a Final Year Student of Law at Jindal Global Law School.
Introduction After seven years of violence and multiple failed attempts to prosecute those responsible for injustice, on January 29, 2021, the government of South Sudan approved the establishment, in cooperation with the African Union, of a hybrid court with competent jurisdiction for international crimes committed on the territory of the countries in context of the conflict that erupted in December 2013. Considering how difficult it has been to believe that South Sudan’s government has any desire to investigate or prosecute previous occurrences, the news offers unexpected hope. Additionally, this situation raises several theoretical and practical problems about introducing a new mixed court, such as whether a new generation of hybrid courts is imminent. What precedents should serve as a basis for establishing this new Court? South Sudan has a tumultuous history, and its future is even less assured. This piece is divided into two parts. The first part focuses on the war in South Sudan and the lengthy effort to bring those responsible to justice for their international crimes. In the second part, we will examine the Court’s founding agreement and speculate on its potential future. The Conflict in South Sudan In December 2013, violence broke out in South Sudan. In the following eight years, approximately 400,000 people were slain. In addition, about four million South Sudanese nationals were driven fout of their homes, seeking safety in neighboring countries or areas less devastated by the hostilities. By 2020, it is expected that 100,000 people will have been forced to leave their homes because of the fighting. Attacks against civilians, often motivated by assumptions about their ethnicity or allegiance, were common in the early months of the conflict and often ended in horrific violence. Mass deaths, arbitrary imprisonment, and interrogation, torture, damage, and theft of privately owned and humanitarian facilities, including numerous hospitals, have all been blamed on government and opposition troops. Without regard for and in direct violation of international humanitarian law (South Sudan ratified the Geneva Conventions of 1949 and the Additional Protocols of 1977 on January 25 2013), both sides have attacked civilian refugees, religious sites, schools, and humanitarian bases, including those of the United Nations, committing violations of domestic law (in particular, with the commission of crimes of this kind, some provisions of the transitional constitution of South Sudan are also violated, which protect the right to life and outlaw torment), and of course international law (in particular, Art. 3 common to the four conventions imposes minimum standards for the adequate treatment of non-combatants.) More than a million people have been driven to hunger because of the crisis, and the situation has not been resolved yet. Even the UN Commission on Human Rights in South Sudan, a body established in March 2016 by the Human Rights Council to ascertain the facts and collect evidence relating to possible violations, noted in their report how the destruction \of food resources and the hunger starvation of civilians could be seen as an intentional way of conducting the conflict, by both sides. Further, Dapo Akande has also questioned how such a conflict resulting in starvation can be considered an international crime. Moreover, the UN Commission has condemned and documented the widespread sexual violence, including rape, genital mutilation, and forced marriage. The political differences between Dinka President Salva Kiir Mayardit and Nuer Vice President Emeritus Riek Machar, both supported by their followers, has expanded the conflict and pitted the two major ethnic groups of the nation against each other, displacing the other minorities in the process. After months of escalating tensions, the casus belli emerged on December 15, 2013, when Nuer troops and other Dinka government forces clashed in Juba, the nation’s capital. In reaction to the slaughter of Nuer men in Juba by Dinka government security forces, hundreds of armed Nuer people had assembled hours before the battle, mostly to avenge the killings. In the following months, more fighting broke out in the Greater Upper Nile area in the northeast of the nation. The group supporting Machar immediately formed, calling itself the Sudan People’s Liberation Movement-In Opposition (SPLM-OP). Since the initial peace accord was signed in 2015, the violence has been frequently reignited by newly formed rebel political groupings. In 2018, the parties committed to forming a transitional government of national unity based in Juba to implement the rest of the agreement, which seeks peace, reconciliation, and stability in the country through the Revitalised Agreement on the Resolution of the Conflict in the Republic of South Sudan (2018 Agreement). Despite occasional confrontations in the west and south of the nation with other organisations who did not sign the pact, the signing of this pact put an end to combat amongst the factions that signed it. Even while the scale of the fighting has diminished over time, non-governmental organisations have decried an uptick in localised skirmishes in 2020 that included political and military figures from factions that had previously signed the pledge. In February 2020, South Sudanese authorities began the formal process of constructing a unity government, which was formally appointed in June and has remained in power since. The Protracted Quest for Prosecuting International Crimes However, the concept of a special court to try those responsible for international crimes has a longer history. Proponents of civil society have been calling for the establishment of a hybrid jurisdiction in South Sudan since at least 2014. However, not all government officials have been on board with the plan. In fact, a UN panel of experts has frequently accused the South Sudanese president of trying to stymie the establishment of an independent judiciary. Scholars believe that the most recent African state lacks a firmly ingrained legal culture and the fight against impunity. This is because, ever since its independence in 2011, the country has been a terrain of armed rebellions and conflicts on an ethnic basis, with no judicial mechanism ever being activated to investigate those responsible for the same. The South Sudanese court system is not yet sufficiently autonomous to independently prosecute crimes of this size. As a result, measures focused only on the domestic front have often been seen as a last-ditch option at best. With the signing of the 2015 Pre-Treaty Peace Agreement, the South Sudanese government has been quietly taking efforts to deepen cooperation with the African Union to create an international crimes tribunal. A draft agreement for a future court and a memorandum of agreement on its functioning were released by South Sudan and the African Union in 2017. Both papers were submitted in August 2017 and approved by the Cabinet in December 2017; however, there has been no additional development or release of material since then. The government, on the other hand, has taken a stance against the establishment of the Court in 2019. However, in the same year, the African Union Commission took steps toward creating the Court, convening a panel of specialists to form it and evaluate the legislative instruments on which it would be based. The South Sudan Civil Society Forum, a coalition of over 200 Non-Governmental Organisations (NGOs), has asked the African Union to strongly encourage the newly constituted government of South Sudan to find a permanent solution for the establishment of a hybrid court by the end of July 2020. True, the African Union established a Commission of Inquiry in December 2013 to look into the possibility of international crimes. The 2018 Agreement gave new life to these plans by providing the parties’ 2015 promises, which provided an in-depth description of the future hybrid court’s expected features. As stated in Chapter V of the Agreement, the Court will work with the Court of the African Union. South Sudanese jurists and the finest judges, investigators, and prosecutors from around south will work together in this hybrid composition of “high moral character, impartiality and integrity, and [...] expertise in criminal law and international law” in the Court. When established on State territory, a hybrid court will be more easily accessible to the general establishment and will have far-reaching consequences in improving the quality of South Sudan’s judicial system. To examine any breaches of international or local law from December 15, 2013, to the conclusion of the Transitional period, the African Union Commission, in cooperation with the Government of South Sudan, is anticipated to create the Court in 2019. As such, it is up to the African Union to establish rules for the establishment of this Court, including its location, infrastructure, funding methods, execution mechanisms, relevant jurisprudence, number and composition of judges, and privileges and immunities enjoyed by court workers. In addition, the Court needs to function as a judicial instrument that embodies a uniquely African prerogative. On the other hand, the agreement specifically limits the Court’s jurisdiction ratione materiae to genocide, war crimes, and crimes against humanity, while leaving some wiggle room for the inclusion of “other serious crimes relevant in international law and domestic law” (primarily, in all probability, sexual violence and the so-called gender-based crimes which are identified, by the penal code of South Sudan, with a definition that does not match international forecasts). When concerns of concurrent jurisdiction arise, the hybrid court will take precedence over any South Sudanese domestic court. The composition of the Court is also outlined in the agreement: most judges in each chamber should be from African states other than South Sudan; similarly, the bodies responsible for defense and continuation will be comprised of non-South Sudanese African citizens who may, in any case, be assisted by South Sudanese personnel or personnel from other African states as far as may be necessary to effectively and equitably carry out their duties. More specifically, suspects retain the inherent right to retain counsel of their own choosing, either in addition to or in substitute for the attorney formally assigned by the Court. In each situation, the chairperson of the African Union Commission shall be responsible for nominating and selecting the staff members to fill the open positions. Reports of the African Union Commission of Inquiry and other documents or materials, in the custody of the African Union or other institutions, may be used by the Court in its inquiry. This article is authored by Unnati Sinha, a Third Year Student of Law at Narsee Monjee Institute of Management Studies.
Introduction On January 31, 2020, the United Kingdom (UK) left the European Union (EU). EU-UK Withdrawal Agreement ended on December 31, 2020 and the existing EU treaties, freedom of movement within the EU and key EU legal norms do not apply to the UK anymore. EU laws were only enforceable under UK domestic law under the European Union (Withdrawal) Act 2018 until modified or repealed by the regulations established under that Act, and the EU and UK negotiating teams had agreed to a comprehensive post-Brexit Trade Cooperation Agreement (TCA), which came into force on 1 January 2021. The legislation regulating intellectual property (IP) was largely harmonized during EU membership, and certain IP rights were granted pan-EU protection. Despite the exclusion of patents, the UK-EU Withdrawal Agreement (WA) subsequently turned pre-existing EU intellectual property rights into equivalent UK rights, with the new UK rights taking effect at the end of the transition period. The UK-EU TCA does cover this segment of the law, with the main emphasis on upholding present protection and enforcement standards for IP rights while also laying the groundwork for further cooperation in this domain. However, as anticipated, the TCA does not confer any rights of representation before the EU Court of Justice of the European Union (CJEU) or the EU Intellectual Property Office (IPO) (other than in existing actions). In light of the end of the Brexit transition period and the exit of the UK from the EU, this piece discusses the history of the EU-UK relationship and its consequences with regard to the protection and enforcement of IP rights in the UK and the EU. Past legal relationship between the EU and the UK It was necessary to pass a sort of legislative act in order to incorporate an EU directive into a state's national law (whether by statutory amendment or delegated legislation, such as a statutory instrument). On the other hand, there was no similar procedure required for an EU legislation to take effect in the UK right away. Thus, UK regulations halted immediately after the discussions ended and the UK exited the EU. The national law that carried out the instructions remained in force until legislation modified it. It seems likely that UK laws significantly implementing directives would not change since it would take a long time for the UK to examine the hundreds of directives it had integrated into its law over the last 44 years. However, Brexit's effects on EU law were far more immediate and severe. Under Article 50 of the Treaty on the European Union, the UK's relationship with the EU is governed by the WA. The WA gave the UK a time-frame when EU law wouldn't apply. The halt was meant to provide time for formulation of an agreement on the linkage between the UK and the EU starting on December 31, 2020. The WA called it the "transition period" and in the UK law, it was called the "implementation period" ( referred to this as an "onward agreement"). It is to be noted that Copyright was left untouched in the WA as it is guaranteed under international copyright agreements that copyrighted works would be protected between the UK and the EU. Previously, copyrights had been governed by the directive and registered Intellectual Property Rights (IPR) (patents, designs, and trademarks) were governed by both legislation and the directive. As there was also no shift in how EU law was applied in the UK throughout the standstill period even after the UK's withdrawal from the EU on January 31, 2020, there had been no alteration in the frameworks for protecting IP until December 31, 2020. The changes that occurred The UK had a lot more freedom to modify its IP system to better suit its own national policy goals after it was liberated from the restrictions and obligations of EU membership. However, this differed depending on the regime and the on the kind of IP in issue due to how much and how UK law had been “Europeanized” during the previous 44 years. Trademarks and Designs EU trademarks and registered community designs are no longer recognized in the UK as of the conclusion of the transition period. Holders of trademark and design rights who registered them prior to December 31, 2020, immediately received a new "equivalent right" at no further cost from the UK (unless the applicant opted-out of this process). Similar to rights acquired under UK law, the new UK rights are regarded equally. The aforementioned clause does not extend to applications for registered community designs and EU trademarks that were outstanding at the European Patent Office on December 31. To gain security in the UK, owners of pending European Patent Office applications must submit an extra application to the UK Intellectual Property Office. Within nine months beginning on January 1, 2021, this may be accomplished via a new transitional method ( before September 2021). Furthermore, future submissions of new applications will be required in both jurisdictions. The UK Intellectual Property Office will also need a local address from applicants who seek to file there in order to serve legal papers and notifications. Not only this, a new, three-year "supplementary unregistered design right" has been established in the UK. This guarantees that identical design rights are in place following the transition period and is applicable to designs that are first revealed in the UK after that time. Geographical Indications (GIs) In accordance with Article 55 Withdrawal Agreement (WA), the UK has extended security to the inventory of geographical indications recognized by the EU that is at least as strong as that needed by applicable EU law. As long as the relevant GI is protected in the EU, this protection is unrestricted. To provide a new regulatory regime for new UK GI programmes beginning after the transition period, the UK government presented Agricultural Products, Food and Drink (Amendment etc.) (EU Exit) Regulations, 2020 to the Parliament. To preserve a new product name in Great Britain, the makers must now submit an application to a UK GI system. Hence, according to the new regime, before submitting to EU programs, British producers must first get protection in the UK. Exhaustion of IP rights After the owner of the IP (or with their permission) places items covered by IP on the market in the European Economic Area (EEA), they are essentially "exhausted" of their IP rights and cannot be stopped from being sold elsewhere in the EEA. Since the UK is not a member of the EEA anymore, products with IP protection that are offered for sale there will no longer deplete the rights of IP owners in the EEA, and if such items are parallel imports into the EEA from the UK, those rights will still be applicable against such goods. Companies may wish to consider obtaining an export licence from the UK to the EEA or establishing a cross-border presence in a country that is still a EEA member (rather than the UK). As matters are, the UK still acknowledges EEA exhaustion and permits ongoing "parallel importation" into the UK from the EEA. Conclusion Brexit was not a straightforward divorce, as predicted. Any UK law that was previously reliant on EU legislation must now be dismantled. The option for the UK's laws to deviate from European law is presented by divergence, and such independence may be supported in certain spheres. The UK's courts will not be subject to rulings from EU courts anymore, and owners of IP rights will need to navigate a sizable marketplace where IP rights are autonomous and local law is expected to eventually deviate from the EU law. This will hinder efforts to standardize IP laws across Europe. Even if the UK stays a member of a single market in the EEA, manufacturers will still be required to contend with a sizable market where courts may decide that what may be manufactured is not the same as anywhere else in Europe. Although this issue has been resolved and will merely impact a limited number of businesses, it (re)introduces a challenge that manufacturers must address if their supply-chain strategy calls for distributing the same products across Europe. This succinct summary of some of the most significant effects of Brexit on IP law outlines several modifications in the rights of UK and EU individuals and enterprises as well as non-EU citizens and firms who do business in the UK. Despite the modifications, it is reasonable to assume that not much will occur anytime soon. To protect many of the rights obtained before the Brexit date, transitional time-frames and procedures are required. Furthermore, it is probable that the EU IP acquis that has been incorporated into national law would necessitate a lengthy process to be repealed due to the volume of EU legislation that the UK Parliament will have to examine and modify in the next years, including laws in other areas outside IP. Only time will tell. This article is authored by Anoushka Anand, a Third Year Student of BA LLB (Hons.) at National Law University, Jodhpur.
Introduction The cornerstone of contemporary international refugee protection law is the 1951 United Nations Convention Relating to the Status of Refugees (Refugee Convention). It finds its foundation in Article 14 of the 1948 Universal Declaration of Human Rights, which declares that everyone has the right to seek and receive shelter from persecution abroad. The Refugee Convention also emphasises non-refoulement, which is the principle prohibiting sending refugees or asylum seekers back to a nation where their lives or freedom are in danger. However, the United Kingdom’s (UK) new law - the Nationality and Borders Act, 2022 severely undermines the right to seek asylum in several ways. This piece seeks to establish that despite being a party to the Refugee Convention, the UK plans to transfer asylum seekers to Rwanda. Furthermore, it voices grave concern that the nation's asylum partnership arrangement breaches international law and could hurt those seeking international protection in ways that are both potentially irreversible and dangerous. I. Conceptualising Refugees and Persecution Refugees by definition are victims of human rights violations. According to Article 1(a) (2) of the Refugee Convention, the term ‘refugee’ applies to “any persons who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”. Although ‘persecution’ is not defined in the Refugee Convention, Professor James Hathaway defined it in terms of ‘the sustained or systematic violation of basic human rights demonstrative of a failure of state protection’. ‘A well-founded fear of persecution’, according to him, exists when one reasonably anticipates that the failure to leave the country may result in a form of serious harm which the government cannot or will not prevent.[1] Moreover, persecution encompasses harassment from state actors as well as non-state actors. II. A Neo-Colonial Plan One of the most serious problems that has been plaguing the international community is of the displacement of refugees, resulting inthe unending attacks on their human rights. There is thus a strong link between the refugee crisis and human rights concerns. Human rights violations are not only a primary source of mass departure, but they also make voluntary repatriation impossible for as long as they exist. Minority rights violations and ethnic clashes are also common within the broader spectrum of refugee settlement problems. Thus, there is an urgent need to gather more effective ways to protect and assist these particularly vulnerable groups. Unfortunately, even today, there are governments which are far removed from humanity – with the government of the UK being a recent example. On April 27, 2022, the UK Parliament approved the controversial Nationality and Borders Bill to bring about sweeping reforms in its immigration and citizenship system. By a vote of 212 to 157, the "Anti-Refugee Bill," which would make it illegal to enter the UK without a visa and give the government the power to revoke someone's British citizenship secretly, was approved. It implies that those refugees who try to enter the nation in an unofficial manner risk facing imprisonment. Additionally, the Boris Johnson government unveiled its plan to send some asylum seekers from the UK to Rwanda on a one-way ticket along with the Prime Minister stating that the £120M scheme would "save countless lives" from human trafficking. The British Royal Navy would take over operational command of the English Channel from Border Force as part of the new strategy, with the objective that no boat makes it to the UK undetected. It also gives the UK authorities the power to punish people who enter the country illegally, including life terms for anybody piloting the boats. Thus, instead of operating a fair asylum system, the government’s response comes as an unethical plan which would probably put the safety and rights of the refugees at risk, especially with the record of Rwanda in breaking human rights. There was a widespread criticism of the same by the international community, including Humans Right Watch, which called out the government for choosing to act with cruelty and neglecting their obligations towards those fleeing war and persecution. III. Violation of Non – refoulement? One of the central protections that international law provides to refugees is the right against non- refoulement, which, in the most layman terms means the right not to be forcibly returned or expelled to a situation which would threaten one’s life or freedom. This principle finds expression in various international law instruments such as the Refugee Convention as well as the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The most forward and promising provision regarding refoulement is that it applies not only to recognized refugees, but also to those who have not had their status formally declared.The pertinent question that arises at this juncture is whether the UK’s plan to send its refugees to Rwanda is a breach of the principle of non – refoulement. Two features of the principle of become pertinent in this case. First, it has been established that prohibition of refoulement is applicable to any form of forcible removal, including deportation, expulsion, extradition as well as informal transfers. This is evident from the wording of Article 33(1) of the Refugee Convention, which refers to expulsion or return (refoulement) “in any manner whatsoever”. Second, the principle applies not only in respect of return to the country of origin or, in the case of a stateless person, the country of former habitual residence, but also to any other place where a person has reason to fear threats to his or her life or freedom. At this point, it is important to note that, as stated earlier, Rwanda has had a track record of human rights violations including extrajudicial killings, deaths in custody, unlawful or arbitrary detention, torture, and abusive prosecutions, particularly targeting critics and dissidents. Such violations were also seen with respect to refugees. In 2018, the police shot dead 11 refugees during a food riot in Rwanda. The aforementioned makes it evident that the safety of the refugees is far from guaranteed in Rwanda, and by transporting the refugees to Rwanda, the UK government would be breaching the principle of non-refoulement. While the government of UK has defended its stance by stating that an “offshoring policy” is allowed according to its international obligations, a view at other attempts of such policies by different governments indicates that they are not fruitful and are infact, counterintuitive for the refugees. For example, between 2014 and 2017, a similar Migration Agreement between Rwanda and Israel is claimed to have led in substantially all of the 4,000 persons estimated to have been brought there fleeing the nation very quickly. Similarly, Australia’s offshoring plan was a failure with at least 10 people having taken their lives while being held in the offshore processing centres. Thus, with no known successful offshore strategy elsewhere in the world, and many human rights violations as a result of such policies, the UK's approach is fraught with danger. IV. Conclusion - A Different Approach The problem of refugees is a complicated and stubborn one, which requires a harmonious approach by international agents, the governments as well as the citizens. It is evident from the discussion that it requires more dedication and humanity on the part of the decision makers to promote and protect the basic human rights of refugees and provide them with a safe asylum. It is paramount for refugee-receiving states to retain their commitment to refugee protection and promote tolerance for differences. In the backdrop of this, the UK’s plan for refugees suffers from a lack of empathy and does not account for the reality of the refugees’ situations. Since the UK has a legal obligation under the Refugee Convention to uphold the principle of non-refoulement, it needs to ensure that a range of practical and human rights-based protection mechanisms are in place for the refugees. Instead of “offshoring” the refugees, the UK should establish mechanisms for entry and stay for those migrants who are unable to return, in order to ensure the principle of non-refoulement. Additionally, administrative and legislative mechanisms should be set up to grant legal status to migrants who cannot return, in the form of temporary, long-term or permanent status. Taking care of refugees is a core component of the human rights paradigm and thus, it is of utmost importance to come up with radical solutions through global cooperation. This includes setting up strong refugee systems like allowing people to apply for asylum, treating their refugee claims fairly and resettling the most vulnerable of all – not just in the UK, but across the world. [1] James Hathaway, “Fear of Persecution and the Law of Human Rights”, Bulletin of Human Rights, 91/1, United Nations, (New York, 1992), p.99, quoted in Brian Gorlick, ‘Refugees and Human Rights’, Seminar (March 1998), P.23. 10/18/2022 Basfar v Wong: A Win for Victims of Modern Slavery or a Fracture in the Law of Diplomatic Immunity?Read NowThis article is authored by Shashwat Singh, a Fourth Year Student of Law at Nirma University.
Introduction The UK Supreme Court, in a recent judgment, found that diplomats responsible for subjecting their domestic workers to situations of modern slavery will no longer have immunity from the civil jurisdiction of the Courts in the UK. The case concerned a dispute between Ms. Wong, a worker of Filipino nationality, and Mr. Basfar, a Saudi diplomat, who had allegedly trafficked Ms. Wong to the UK and subjected her to inhumane and degrading conditions under his household. Pursuant to Article 31(1) of the Vienna Convention on Diplomatic Relations (“VCDR”), diplomats are granted immunity from both criminal and civil jurisdictions of the Courts of the receiving State to facilitate the normal exercise of their diplomatic functions. While immunity from criminal jurisdiction is unqualified, civil jurisdiction immunity can be waived under Article 31(1)(c) of the VCDR if it can be established that the diplomat was involved in a commercial activity outside his official functions. This was precisely the dispute that arose before the Court; can the exploitation of a domestic worker by a diplomat be characterized as a commercial activity for the purpose of Article 31(1)(c)? In answering this question in the affirmative, the Court took a liberal stance in interpreting the phrase “commercial activity”. It conveniently avoided the difficult question of human rights abuse of Ms. Wong. At the same time, it also placed the UK in a vulnerable position vis-à-vis other States as diplomatic immunity under international law is based on the principle of reciprocity. This Article analyses this judgment under three sub-heads. First, it explains the threshold of commercial activity exception as set out by the Court. Second, it highlights how the Court missed an opportunity of interpreting diplomatic law in light of the human rights obligations of the UK. Finally, it analyses how setting a lower threshold for the commercial activity exception conflicts with the reciprocity obligation under the VCDR before concluding. Commercial activity exception It has been widely established (See Mufti, Al-Malki) in the decisions of domestic Courts and the writings of jurists (See Eileen Denza’s Commentary on VCDR) that the exception criteria of “commercial activity” cannot be construed to include activities that are “incidental to the conduct of the daily life“ of the diplomat in the receiving State. Such activities include purchasing goods for personal consumption or purchasing educational or domestic services privately [para 34]. The Court accepted this view and Stated that a private contractual relationship between a diplomat and his servant is incidental to the conduct of daily life of a diplomat and his family, and therefore, fell within the rationale from immunity of the civil jurisdiction of the receiving State [para 37]. However, the Court found that the same is not true when a person is kept in a situation of domestic servitude, forced labour, and human trafficking (which was grouped under the head of ‘modern slavery’). Since modern slavery included a high degree of control over the physical labour of the worker and exploitation of such control for personal profit, it would fall within the commercial activity exception [para 51]. Leapfrogging the human rights argument It was contested by an intervening party (‘United Nations Special Rapporteur on Trafficking in Persons’) that Article 31(1)(c) of the VCDR should be read in a manner to achieve consistency with UK’s human rights obligations. However, the Court decided that such an analysis would be devoid of any purpose because the fact that an activity is unlawful does not mean that it is commercial in nature. This approach appears to be problematic for two reasons. First, the Court itself undertook a detailed analysis of how Ms. Wong’s dehumanization amounted to a situation of modern slavery within the framework of Palermo Protocol. In doing so, it also relied on UK’s other obligations under international law for example, Article 4(a) of the Council of Europe Anti-Trafficking Convention on Action against Trafficking in Human Beings which defines ‘human trafficking’. This highlights that a situation of domestic servitude in a diplomat’s residence has a direct bearing on the issue of human rights, even when the claim brought before the Court does not directly relate to that question. Second, the alleged facts of the case (yet to be established by the Employment Tribunal) are fairly simple. Ms. Wong managed to escape after two years of employment at Mr. Basfar’s household in the UK. Ascertainment of facts may not necessarily be possible in situations of prolonged confinement of a worker especially when the diplomat is transferred to different jurisdictions and the worker accompanies him. Contrarily, a recourse to human rights law would obligate States to protect victims of domestic servitude and slavery from further abuse by taking all possible judicial and administrative measures (Article 4 of the European Convention on Human Rights). It might be argued that human rights law and the law of diplomatic immunity cannot be reconciled because the law of immunities is procedural in nature (ICJ Jurisdictional Immunities Case). This does not, however, mean that the two frameworks cannot complement each other to strike a balance between the “aim served by immunity and a competing interest in limiting opportunity for immunity to be abused” [para 102]. The World Court, albeit, has never received the opportunity to set a compromissory line between the two divergent norms of diplomatic immunity and human rights. The Tehran Hostages Case and the Immunities and Criminal Proceedings Case are both limited as they only expound on the question of diplomatic privileges accorded to diplomats and offer no analysis on the human rights question. This does not mean that the dictum laid down in the Jurisdictional Immunities Case has no relevance. The preamble to the VCDR is explicit in stating that the purpose of [diplomatic] privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions of representing States. Clearly, the efficient performance of diplomatic function does not entail that a diplomat be granted the liberty to confine a worker in a situation of domestic servitude. On the other hand, human rights instruments offer sufficient safeguards to victims of modern slavery through their respective complaint mechanisms. This is especially important because States are unlikely to waive their diplomats’ immunity under Article 32 of the VCDR to allow the receiving State to initiate civil proceedings against diplomats on mere suspicion of their involvement in domestic abuse. Additionally, under Article 32(2), the waiver from the sending States needs to be ‘express’ and not merely an ‘implied’ waiver. This becomes abundantly clear from the draft Articles of the VCDR. States are unwilling to surrender their diplomats to the civil jurisdiction of receiving States until the threshold of Article 31(1)(c) is met. Further, all domestic workers may not be in a condition, and may even find it difficult, to file a claim for damages from the diplomat in his home country. Under such circumstances, granting protection under the human rights framework to workers who have escaped domestic servitude becomes all the more important. Reciprocity under the VCDR Lord Hamblen and Lady Rose in their dissenting opinion pointed out that unilaterally widening the scope of “commercial activity exception” could invite formal or informal retaliatory measures on UK’s diplomats overseas. And this fear appears to be well-founded given that one of the fundamental principles of VCDR is reciprocity. Every receiving State is also a sending State under international law, and therefore, States ascribe great weight to rules protecting the immunity of diplomats. Conclusion An objective analysis of Article 31(1)(c) of the VCDR suggests that Statearties to the VCDR have refrained from accepting a broad interpretation of the “commercial activity exception” and instead accorded greater importance to the norm of diplomatic immunity. In Tabion vs. Mufti, the US Court of Appeals held that domestic services cannot be included within the scope of commercial activity exception as such services are incident to daily life of the diplomat. Again in Reyes vs. Al-Malki, the UK Supreme Court held that merely because a diplomat derived economic benefit by hiring a domestic worker at a price below the market rate did not mean that the activity fell within the commercial activity exception. Similarly, the travaux preparatoires to the VCDR contains no discussion of the trafficking of domestic workers as a basis to broaden the scope of Article 31(1)(c). Therefore, only an evolutionary and flexible approach to interpret the phrase “commercial activity” can justify compromising with the norm of protection of diplomatic immunity. For the reasons already highlighted above, this is the first instance where a State’s Apex Court has held that diplomats cannot abuse their diplomatic immunity to control the physical labour of a worker in an extensive manner to place her in a situation of domestic servitude. This runs counter to the argument that diplomatic immunity should always be protected and can only be waived in matters expressly provided by the VCDR. As of now, it is awaited whether or not the facts alleged by Ms. Wong are established by the Employment Tribunal and how other States, especially Saudi Arabia, reacts to this judgment. This article is authored by Aryan Tulsyan, a third year student of B.A. L.L.B. at Jindal Global Law School.
Introduction Most International Investment Agreements (“IIAs”) contain a specific dispute settlement clause, providing access to avenues such as investment arbitration and domestic courts to the investors. A waiver in the context of Investor-State Dispute Settlement (ISDS) refers to the waiver of protection offered by an IIA. It means that the investor-claimant waives their right to approach an investment arbitral tribunal which has been established by the governing IIA, with regards to claims that may arise against the host state (defendants). There exists literature on the constitution of a waiver upon selection of domestic forums (see Hoffman, Spiermann) and on Calvo Clauses, present in Latin American Investor-State concession contracts, as per which the rights of a foreign investor are limited to availing the host state’s local legal remedies and a waiver of investment arbitration. However, this article does not analyze waivers in the context of Calvo Clauses or available local remedies. The article elucidates whether settlement agreements between a host state and a foreign investor would qualify as a waiver of the investors’ claim before an investment-arbitral tribunal. Situating waivers in ISDS? It is important to situate the principle of waivers within relevant international law sources. Article 38(i) of the ICJ Statute, provides for conventions, customs, and general principles of law as sources of international law. Article 45(a) of the Articles on the Responsibility of States for Internationally Wrongful Acts (“ARSIWA”) states that a State’s responsibility may not be invoked if the injured State has waived a claim. Although Article 45 of the ARSIWA does not address private entities, it mentions the waiver of the ‘State’ and can be used as a source to locate the principles of waivers in international investment law. Although IIAs are usually silent on the issue of waivers, commentaries have interpreted the dispute resolution clauses in IIAs to argue that a right cannot be waived before it can be exercised. Further, although a waiver cannot be presumed, it has been noted that waivers can also be implied (see Håkansson and Sturesson v. Sweden, Russian Indemnity Award). Christopher Schreuer has also argued that ‘if the right to take the host state to arbitration is a right of the investor and the investor alone’, waivers cannot be forbidden. Does the IIA necessarily need to contain a waiver clause? The arguments above can be used as a source to situate waivers as a principle of international law (Article 38(i) of the ICJ Statute). Now, it is important to understand how an arbitral tribunal can determine if they are bound by a waiver. While most IIAs do not have explicit provisions dealing with waivers, they have a broad dispute settlement clause, which would mean that the Tribunal would have the authority to decide on disputes based on the principles and rules of international law. (for example, Article 26(6) of the ECT, Article 30(1) of the US Model BIT). Thus, if the Tribunal is to apply the principles and rules of international law, they would not entertain a claim by an investor who has waived such rights, as waivers are a principle of international law. Therefore, the absence of an explicit waiver clause in the IIA becomes irrelevant if the IIA has a dispute resolution clause allowing it to use international law. Settlement Agreements as Waivers As per Aguas del Tunari v. Bolivia, an investor who agrees to a settlement agreement with the host state is said to commit to a waiver of such claims, which extends to the arbitral tribunal established by the IIA (para 118). This decision can be used to support the claim that settlement agreements would amount to a waiver of protection offered by an IIA. As per the ECHR dispute of Barbera v. Spain, waivers must be established unequivocally and must not run counter to any important public interest (para 82). Therefore, the settlement agreement which is to be constituted as a waiver must be unequivocal. An unequivocal settlement agreement could mean one which is based on consensus between the parties, concerning all material terms and arrangements. If a settlement agreement is to constitute a valid waiver, it must not have been obtained through coercion or duress. In Anaconda v. Iran, the Chilean Government nationalized mines operated by Anaconda Company, to which the latter agreed, on the fear of expropriation of investment. The Tribunal decided that even though Anaconda’s agreement to the rearrangement of the investment might amount to an implicit waiver of treaty protection, Anaconda will be allowed to submit claims before the arbitral tribunal as the settlement was concluded under duress, and the settlement would not amount to a waiver. Therefore, if the host state coerced the investor to enter into a settlement agreement, or in situations where the latter is under duress, the settlement agreement would not be a valid waiver. In Desert Line v. Yemen, the Tribunal found that the terms of the settlement agreement were extremely unfavourable for the investor, which had been “imposed onto the Claimant under physical and financial duress” and had been a result of “coercion” and “inadmissible pressure”. Thus, one way to determine if the settlement agreement is a result of coercion or duress is by perusing its terms. De Rendón v. Ventura employed the concept of laesio enormis which allows a party to rescind an agreement if there is an unfair consideration. Therefore, if the terms of the settlement agreement suggest that there is an unjustified and colossal difference between the quantum of the settlement and the original investments, it can be implied that the settlement was a result of duress or coercion, which would allow the investor to rescind the agreement and make claims before the arbitral tribunal as no valid waiver would be established. Contract Claims and Treaty Claims A way to determine the existence (or refutation) of a waiver could be by determining if the relevant claims concern the specific contract between the foreign investor and the host state (and its agencies), or if they concern the IIA in general. Usually, investment arbitration tribunals are concerned with the protection of foreign investors when the host state has breached the IIA and not the contract. This is based on the sixth commentary on Article 4 of ARSIWA, as per which the breach by a State of a contract does not as such entail a breach of international law. Here, the author argues that if there is a juridical distinction between the IIA and the contract, a waiver of a contract might not always mean to be a waiver of the protection of the IIA. As per Vivendi v. Argentina I, a breach of an IIA and that of a contract are ‘different questions’ (para 96), even if they arise from the same factual circumstances (para 576 of Sun Reserve v. Italy). Based on this, principally, investment arbitration tribunals do not have jurisdiction over purely contractual claims (para 557 of Deutsche Bank v. Sri Lanka), as there is a distinction between contractual and treaty claims. In Burlington v. Ecuador, although the investors waived the claims under the contract, the Tribunal held that “they have not waived the underlying rights (established by the IIA), and Burlington may thus rely on these underlying rights to pursue its Treaty claims in this arbitration” (para 365). Therefore, a contractual waiver would not preclude the investor to approach the arbitral tribunal, as the investor’s rights are protected by the IIA. To determine if a claim would classify as a contractual claim or treaty claim, one could consider multiple factors such as the cause of the claim, content of the right, parties to the claim, applicable law, and the host State’s responsibility. If a claim falls within treaty jurisdiction, contractual waivers will not preclude investors. In certain situations, the host State might act as a sovereign authority and not as a contracting party; here, if the investor waives its contractual claims, it would still be protected by the IIA, as there could be a breach in other substantive standards of protection found in the IIA. (para 77 of El Paso v. Argentina). Investment arbitral tribunals can have jurisdiction over disputes arising from a breach of contract even if the IIA is not breached, if the IIA’s dispute resolution clause is broadly worded, to include “all disputes concerning investments”. In such cases, the investment arbitral tribunal would have jurisdiction over contract claims (Teinver v. Argentina), and it can be argued that the waiver of the contractual claims would ultimately mean the waiver of the IIA protection. One such example is Article 8(1) of the Argentina - France BIT (1991), under which the Tribunal has jurisdiction over “any dispute relating to investments”. Provision for contractual jurisdiction through the IIA can also be established under the Claims Settlement Declaration. This was reiterated in Toto v. Lebanon, where the investor had signed a contractual waiver and claimed that this should not be treated as a treaty waiver, but the Tribunal held that when a claim concerns the same damage for the same act, an investor’s waiver through the contract precludes them from recovering under the IIA (para 85). Aim of the IIA If the nature of the settlement agreement between the host state and foreign investor is outside the aim of the IIA, it can be argued that the settlement agreement would not be a waiver of claims before an arbitral tribunal. For example, most IIAs like the ECT or the US Model BIT, have provided in their preambles that the IIA seeks to enforce investors’ rights by facilitating arbitration of disputes. The IIAs seek to hold the host states responsible for any breaches of obligations made by them. On the other hand, settlement agreements could be limited to the forbearance of repayment obligations, not accounting for the mistreatment meted out to the investors. For example, Company A might enter into a settlement agreement with Country X, through which A decides not to recover investments from X. However, if the IIA governing the investment made by A in X provides protections such as Most Favored Nation or National treatment, and X has violated these protections, then the settlement agreement between A and X would not be a waiver of claims before an arbitral tribunal. ‘A’ might not be able to seek the value of the investment, but A may claim that the host state treated them in a manner inconsistent with the IIA. In situations like these, where the aim of the IIA is broader than the scope of the settlement agreement, certain agreements would not constitute a waiver of claims before an arbitral tribunal. Conclusion There are multiple ways to resolve investor-state disputes, and sometimes, the parties can decide to enter into settlement agreements through negotiations. The standing of these settlement agreements concerning investment arbitration is not a widely addressed issue. This paper has attempted to analyze the situations in which the settlement would and would not be a waiver of the protection by an IIA. Arbitration rests on the tenet of party autonomy, which becomes important here as the decision to establish arbitration as the official dispute resolution mechanism is of the parties. As the settlement, and the arbitration, are decisions of the parties themselves, there rises a conflict, and this article has aimed to resolve this conflict. To conclude, once it has been established that a settlement agreement can be treated as a valid waiver, there needs to be a case-by-case analysis to determine if such a waiver would preclude an investor from approaching an arbitral tribunal. This article is authored by Simran Lunagariya, a final year student and Niveditha R, a fourth year student at Institute of Law, Nirma University, Gujarat.
Introduction Subsidies are intended to safeguard consumer interests by ensuring low prices. However, they have substantial fiscal costs that lead to higher taxes or debt; encourage inefficient allocation of the nation’s resources that may hinder development, and condone pollution by contributing to climate change. Most importantly, they are not focused on the poor. In particular, fossil fuel subsidies (“FFS”) immensely contribute to global greenhouse-gas emissions. These subsidies compromise global efforts to mitigate climate change; exacerbate pollution; drain the nation’s budget; cause market distortions, and increase the cost of public health. Moreover, they also have distorting impacts on trade by causing a displacement of the competitor’s imports, reduce the market share of the competitors, as well as impact the development of clean energy alternatives. Eliminating subsidies can thus advance sustainable and equitable progress. However, the World Trade Organization (“WTO”) rules pose a complication for members to challenge FFS. The purpose of this blog is to analyze the trade impacts of fossil fuel subsidies by way of a case study and to highlight the legal and evidentiary challenges posed by the Agreement on Subsidizing and Countervailing Measures (“ASCM”). The blog also attempts to shed light on the global efforts to reform FFS, in addition to suggesting recommendations for such reform. WTO Rules Like other subsidies, FFS are covered under the ambit of the ASCM along with the relevant provisions of the General Agreement on Tariffs and Trade, 1994 (“GATT”) and Agreement on Trade-Related Investment Measures (“TRIMs”). While GATT provisions apply to such subsidies that amount to a quantitative export restriction, the ASCM elaborates upon Articles VI and XVI of GATT that deal with anti-dumping & countervailing duties and subsidies. FFS have remained unchallenged under the WTO rules largely because of the legal and evidentiary difficulties posed by the ASCM. Under the WTO dispute settlement system, a subsidy is defined under Article 1 of the ASCM. A subsidy under Article 1 is a ‘financial contribution’ by a government or a public body within the territory of a member or is a form of income or price support as given under Article XVI of GATT 1994 that confers a benefit on the recipient. Such a financial contribution under the ASCM may take the form of the following:
This being said, the WTO rules are applicable only if the measures are either prohibited or actionable subsidies. Pursuant to Article 3 of the ASCM, prohibited subsidies are those that are contingent upon export performance. According to Articles 2.3, 5 and 6 of the ASCM, subsidies that are specific and create adverse effects are considered actionable subsidies. Furthermore, given the intensive nature of FFS, details pertaining to the subsidy has to be notified to other WTO members under Article 25 of the ASCM. It is also to be observed that subsidies may be granted at different stages namely, production, consumption and general services. Thus, on the face of it, the WTO legislation provides a clear demarcation regarding the elements of a subsidy. However, as stated previously, challenging a FFS under the ASCM is legally and politically intricate and the same can be understood through a case study. Adani’s Case The recent sparks about Adani’s Carmichael project in Australia are a classic example of how FFS impacts trade. Carmichael is a thermal coal mine under development in Central Queensland’s Galilee Basin that has been sanctioned by both the Queensland and Federal governments. The project has been very contentious, with disagreements regarding its purported economic advantages, financial feasibility and environmental impact. Given that the Carmichael project’s declared purpose is to export coal to India and other Asian nations, the subsidies will undoubtedly impact the worldwide coal market. The subsidy seems to prioritise exports, indicated by the fact that royalties are computed depending on the export price. Additionally, the Adani Royalties Deferral Agreement may be characterised as a direct transfer of cash in form of a loan since it requires Adani to repay and charges interest. The reduced interest rate offered to Adani (at the state bond rate), while seen against the commercial rates might also result in a loss of government income. Furthermore, the railroad provided by the government for transport of coal also falls under the ASCM category of the supply of goods or services. Also, as the Royalties Deferral Agreement only applies to Adani, it might be claimed that the subsidy is only accessible to particular firms and not to other sectors in the area. In other words, pursuant to Article 2.1 of the ASCM, this subsidy is likely to be labelled “specific.” Lastly, the subsidy causes adverse effects since the mine’s Australian exports to India are likely to replace other members’ exports, particularly Indonesia’s. Thus, without a doubt, the loan provided to Adani may be deemed to be a subsidy under Article 1 of the ASCM. However, challenging the said subsidy under WTO rules proves to be a mammoth task, and a few challenges posed by the ASCM are discussed in the following section. Challenges posed by the ASCM Challenging FFS under the ASCM poses a high evidentiary burden on the claimant. The first and foremost challenge revolves around the establishment of the grant or loan or any other form as a ‘Subsidy’ under the ASCM, wherein, the elements of financial contribution and benefits have to be proved. The second challenge, especially in cases of actionable subsidies, revolves around the demonstration of the ‘specificity’ of a particular subsidy. This is a challenge for subsidies that are granted at the consumption stage, as such subsidy caters to a large number of recipients. Lastly, the most difficult challenge is to illustrate the adverse effects caused by the alleged subsidy. Additionally, as stated previously, the trade effects of FFS are difficult to be captured in the ASCM. FFS have an immense effect on renewable energy products. These effects can negatively impact competitiveness and slow the innovation of alternatives to fossil fuels. Given that FFS and its alternatives are not ‘like products’ wherein they do not compete in the same market, the said trade effects are not taken into consideration. Even if we accept the doubtful premise that trade effects of FFS are covered under the ASCM, challenges would still remain as the subsidizing member rarely meets the requirements like notifying the measure, or other mandates that are expensive and time-consuming. It is pertinent to note that the ASCM does not focus on the environmental and societal impacts of the subsidies. Even from an economic perspective, it fails to account for the social and environmental elements that may cause market distortion. These challenges along with the strategic and political factors involved, make it difficult for FFS to be challenged. Recommendations The fight to end FFS started over a decade ago. Despite the global commitments to rationalize and phase out the use of FFS in COP26, G7 and the G20 summits, elimination of FFS seems to be a far-fetched aim. For FFS reform to be an attainable reality, certain elements must be included in the plan such as a comprehensive strategy with long-term goals; transparent communication with governments regarding the size and impact of subsidies; gradual price increases, and automatic pricing mechanisms. Added to this, WTO members should also be more transparent about FFS and meet the requirements like providing a notification, advocating peer reviews and SDG reporting. Further, they should challenge the FFS under the WTO rules; encourage an informal dialogue at the Ministerial Conferences, and conduct an in-depth analysis of trade effects including the environmental and societal impacts. Such analysis should primarily include an assessment of the legality of the subsidy and the likelihood of it being an export contingent subsidy. Ideally, emphasis should be laid on conducting practical research on the trade-offs between economic and sustainable development. Conclusion Given that the Adani Carmichael Coal Mine problem arose over a decade ago, it is astonishing that the subsidy is yet to be challenged under the ASCM. This emphasises the ASCM’s evidential and legal burden. Despite the project’s disastrous trade consequences, it is impossible to contest the subsidies under WTO standards as external environmental and social repercussions are not taken into consideration in the ASCM. Also, pursuant to Articles 2 and 5 of the ASCM, the aforementioned subsidy, in addition to being specific, should also have adverse effects on the interests of other members. The Australian and Indian governments’ subsidies, although large, are difficult to challenge since trade consequences are not real-time, as per this requirement. Although the real-time requirement can be solved as the ASCM addresses ‘threat to serious prejudice’ as an adverse effect, establishing the ‘likeness’ of renewable energy and fossil fuel goods remains an uncharted area. As a result, an in-depth investigation of the ASCM is necessary to solve the conundrum surrounding FFS reform. The authors assert that eliminating FFS would aid in addressing energy security issues connected with fluctuating fossil fuel sources. Since September 2021, the import of coal from the Carmichael Coal Mine has increased significantly. India and Australia have joined the Glasgow Treaty on Renewable Energy in order to achieve zero carbon emissions by 2025, yet, they are aggressively encouraging coal trade across their borders. Hence, a robust framework to avoid the horrors of FFS is required under the ASCM. 7/31/2022 Asymmetric Jurisdiction Clauses Vis-À-Vis Dispute Resolution in the UK: What in 2022 in the Aftermath of Brexit?Read NowThis article is authored by Arushi Bhagotra, Fourth Year Student of Law, National Law Institute University, Bhopal.
Background In an asymmetric jurisdiction, the parties submit to the jurisdiction of one or more designated courts, but some parties’ submissions are exclusive while others are not. Therefore, provisions of an asymmetric jurisdiction clause (“AJC”) might be interpreted as either granting a certain Court exclusive jurisdiction over a dispute or delegating that authority to that Court. Currently, the freedom to choose any Court to hear the dispute by the party with more extensive jurisdiction raises a few key questions, including whether such a Court will be stricto sensu ‘any Court’ or a Court of ‘competent jurisdiction’ and how the capability of a Court in a transnational dispute with multiple domestic procedural rules will be determined. The Brussels Regulation (Recast) and the 2005 Hague Convention are two of the main pieces of EU law that an AJC is based on. However, as a result of Brexit, the United Kingdom can no longer rely on the Brussels legislation after December 2020. Therefore, Parties are prevented from using the Hague Convention. In the event that the UK does not ratify the 2007 Lugano Convention, parties are attempting to establish jurisdiction and reciprocal recognition of judgments under the Hague Convention on Choice of Court Agreement. Asymmetric clauses are most likely recognised under the Lugano Convention as exclusive choice of court agreements because the United Kingdom (“UK”) has applied to accede to this Convention, which is broadly comparable to the Brussels Recast Regulation and to which the UK government has applied to accede. It is still uncertain whether or when the UK will really accede to it because all signatories must agree, and the European Union (“EU”) hasn’t done so yet. Asymmetric jurisdiction provisions are acceptable under the Brussels Recast Regulation as an exclusive jurisdiction clause, according to English courts' rulings in the instances of Etihad Airways PJSC and Commerzbank Aktiengesellschaft. However, given that the Brussels Recast Regulation no longer applies in the UK as a result of Brexit, this only has immediate impact for actions that begin on or before December 31, 2020. There are certain areas of doubt in the current system for exclusive jurisdiction clause enforcement in the UK and across the EU, but overall, it is reliable enough to be employed. This article looks at the current position of the UK in regard to AJCs, covering the issues surrounding enforceability and examines a feasible road ahead. The current position of the UK and the enforcement conundrum Uncertainty surrounds the Hague Convention's applicability to jurisdiction agreements made prior to January 1, 2021. The EU and its member states have suggested that they may not, but the UK has stated that it will implement such accords as if the Hague Convention applied. Uncertainty and concurrent legal actions may result from this. Additionally, temporary remedies like an injunction will not be subject to execution under the Hague Convention. The parties may decide to restate their agreement at this time to make sure it is covered by the Hague Convention in order to prevent this confusion. Contracting parties will no longer be able to depend on treaty-based enforcement of their English judgements throughout the EU, Switzerland, Iceland, and Norway as of January 1, 2021, without the Hague Convention, as these countries are not signatories to the Hague Convention. In general, it is likely that decisions made in business disputes other England will be upheld in member nations, and vice versa. Since the courts could recognise and enforce each other's judgements until fairly recently, there is no reason to believe that since Brexit the various courts' rulings are any less secure. However, recognition won't happen automatically. It could be necessary to start new legal action to enforce the verdict. Before determining whether to file procedures, it will likely take considerably longer and cost more money. It may also be essential to pay for local enforcement guidance. Potential claimants may be discouraged from pursuing their claims by the uncertainty. Possibility of Optional Arbitration Clauses Similar to asymmetric jurisdiction agreements, optional arbitration clauses are untested in many countries, therefore it is unclear what stance the courts there will likely adopt. The courts of some jurisdictions may decline to enforce an optional arbitration clause or any judgement or award made in reliance thereon, either on the basis of public policy considerations or on the ground that it is a conditional agreement and thus in some way violates Article II of the New York Convention, even though such clauses are permissible under English law, as in the case of NB Three Shipping. In ZAO Russian Telephone Company, a London arbitration clause with a unilateral option to litigate contained in an English law governed contract was found to be invalid by the Supreme Arbitrazh Court of Russia. Interestingly, in France, notwithstanding the Rothschild case, such optional arbitration clauses have been upheld in the case of Société Générale SA. The Way Forward In accordance with the Brussels Convention, the Lugano Convention, the common law, or some combination of them, English courts may stay their legal actions in favour of another nation decided upon by the parties. The ways in which that agreement is expressed and the permitted exceptions may differ slightly from the existing situation. Likewise, EU Member States will undoubtedly continue to accept exclusive jurisdiction clauses designating the English courts, whether the UK is a Brussels Convention state, a Lugano Convention state, or simply a non-Member State within the scope of the Brussels Regulation. Instead of a global convention, this may be accomplished through their own domestic conflict of law laws. If the UK just joins the other non-member states, it may result in more room for delay strategies. However, the UK will probably once more be allowed to deploy anti-suit injunctions if its negotiating position is outside the Brussels rules. By the Brussels Regulation, as mentioned above, this potent tool to force compliance with an exclusive jurisdiction provision was substantially taken out of the English courts' legal toolbox. The UK may ask for a special status as a non-Member State under the Brussels Regulation system if it wants a situation that is similar to the status quo. The Lugano Convention might be a close substitute if this is not politically possible, maybe because it would necessitate acknowledging the Court of Justice of the European Union's ongoing supremacy. However, the EU might not be open to letting the UK stick with the current system or anything similar. The UK might then elect on its own to ratify the Hague Choice of Courts Convention and rely on its past participation in the Brussels Convention. This results in a system that incorporates a reasonable amount of reciprocity, particularly for agreements involving exclusive jurisdiction. It is anticipated that the domestic legislation concerning the recognition of judgments in EU member states will be enforced if the UK is unable to establish a trustworthy reciprocal arrangement that recognises and implements AJCs. Without the Brussels Recast Convention or its equivalent, it is conceivable that many EU member states will uphold English judgments. This is not guaranteed, and international rulings that are implemented for consistency are probably just going to be superficial. Uncertainty over the post-Brexit strategy is also brought on by the uneven attitude taken by EU nations to date. In any case, this ambiguity highlights how crucial it is to make sure covenants to pay are added moving forwards to local law security papers. This precaution would not, however, totally eliminate the requirement to determine the terms of the principal credit arrangement under the applicable legislation, which is typically English law. Determining whether a proper default has actually happened and, if so, whether that default authorises the lenders to enforce their local law security are only two examples of such requirements. To be clear, it should be underlined that these concerns with cross-border security enforcement will only materialise if a legal challenge to financial documents is successful and results in the cross-border enforcement of security. Under financing documents, parties are allowed to settle problems amicably and regularly, with judicial action serving as a last resort. Another situation where the lack of the Recast Brussels Regulation or any successor agreement will have no bearing is when security is frequently implemented outside of court without the necessity for any kind of legal action or procedure. Although the use of unequal jurisdiction provisions reflects market practise, the latest Loan Market Association Guidelines and the new post-Brexit framework may make this conventional method more problematic than helpful. This problem could be solved by symmetric jurisdiction provisions because they are enforceable under the Hague Convention. The benefits of being able to employ the Hague Convention by choosing such symmetric provisions over depending on the various laws and legal systems in the 27 EU nations may outweigh the drawbacks of using symmetric jurisdiction clauses. |
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