A recent judgment delivered by the Supreme Court of India on October 5, 2017 represents a significant milestone insofar as the judicial treatment of contractual liability of the State vis-à-vis private individuals/companies in the sphere of commercial contracts in India is concerned. The stated Supreme Court decision reaffirms the principle that even in the contractual sphere, no activity of the state, whether by itself or through any of its forms or agencies, can be arbitrary, unfair or unreasonable. Once the State or its instrumentality is party to a contract, it has an obligation in law to act fairly, justly and reasonably and the state, like any private party, is bound by the express terms of the agreement entered into by it.
On 1st July 2017, the International Criminal Court completed 15 years. While there are 24 cases that have been brought before the Court, it has only managed to convict 4 individuals in all these years, but it is hoped that it carries to deliver universal justice in an unprecedented manner.
[This article was published at EFILA Blog (here) on 2nd May, 2017]
While allowing investors the right to directly bring a claim against the States has said to be the single most progressive development in International Law in the 20th century, they also have gained recognition as ‘subjects’ of international law. It is this recognition which puts a corollary duty on the investor to regard human rights while carrying out activities in the host state. Over the past couple of decades, there has been a growth in, both, international human rights jurisprudence and investment arbitration claims by investors against States. With both procedural and substantive matters of importance coming to the fore, it has led to the convergence of both the areas and raised a valid concern of the importance of erga omnes obligations of human rights in investment arbitration. A human rights concern is a two-way street, with States being concerned about human rights violations by the investor in their territory and the investor being careful that his/her human rights are not unjustly violated by the State.
The United States of America fired 59 Tomahawk missiles at an air base in the Syrian town of Khan Sheikhoun on 6th April. This was 2 days after chemical weapons were used in the same Syrian town, which killed over 80 people, including at least 20 women and 30 children. However, the question arises whether USA’s act can in any manner be held a) a legitimate response, b) a valid act in itself.Read More »
Dr. Wolfgang Alschner, Assistant Professor at the University of Ottawa, is an empirical legal scholar specialized in international economic law and the computational analysis of law. He holds a PhD in International Law from the Graduate Institute of International and Development Studies in Geneva, a Master of Law from Stanford Law School, a Master in International Affairs from the Graduate Institute as well as an LLB from the University of London and a BA in International Relations from the University of Dresden, Germany. Prior to joining academia, he worked for UNCTAD’s Section on International Investment Agreements. He co-founded the investment treaty analytics portal www. mappinginvestmenttreaties.com and has published in leading peer-reviewed journals. Read More »
(This article was originally published in ITN Quarterly, December 2016, International Institute for Sustainable Development here.)
India has bilateral investment treaties (BITs) or bilateral investment promotion agreements (BIPAs) in force with 72 countries. The initial duration of these agreements with 25 countries has not yet expired. The Government of India (Government) has recently begun negotiations with these countries proposing a Joint Interpretative Statement (Statement) containing clarifications similar to the text of India’s new Model BIT. We highlight below nine of the clarifications included in the Statement.Read More »
[This article is a critical analysis of the Fifth Report of the Special Rapporteur, Ms Concepción Escobar Hernández, on Immunity of State Officials from Criminal Jurisdiction, discussed during the 68th session of the International Law Commission. It was written as a part of an internship at the International Law Commission, Geneva during its 68th session in 2016]
The Report A/CN.4/701 can be accessed here. Since it is a lengthy report, a summary of the Report in the form of a conclusion drawn by the Special Rapporteur that there must be exceptions and limitations to the immunity of State Officials can be read onwards page 92 of the Report. This article is not a comprehensive critique of the Special Rapporteur’s report but a mere critique of the methods employed by the Rapporteur and the line of reasoning the Rapporteur tries to establish to make a case for exceptions to immunity of State officials in certain cases. Since diplomatic protection of State Officials is a customary norm, there is a prevailing trend of immunity in its favour, both in terms of Rationae Materie and Rationae Personae. The following analysis must be read in light of this established fact.Read More »