The Technostars Shall Rise

Imagining the next generation of arbitrators…

By Garv Malhotra*

     I. Introduction

The development of arbitration as a formal system of dispute resolution has transfigured it into a highly evolved version of its primitive self a century back. Alongside the process, the players have also matured into influential stakeholders with defined roles and scope of flexibility. So how have the profiles of arbitrators changed over time?Read More »

Interview: Dr. Wolfgang Alschner, Assistant Professor, University of Ottawa

wolfgang_alschner_medium_fotorDr. 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.
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India’s Joint Interpretive Statement for BITs: An Attempt to Slay the Ghosts of the Past

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By Sarthak Malhotra

(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.[1] The initial duration of these agreements with 25 countries has not yet expired.[2] The Government of India (Government) has recently begun negotiations with these countries proposing a Joint Interpretative Statement (Statement)[3] containing clarifications similar to the text of India’s new Model BIT.[4] We highlight below nine of the clarifications included in the Statement.Read More »

A critical analysis of the Fifth Report of the Special Rapporteur on Immunity of State Officials from Criminal Jurisdiction

By Sujoy Sur

[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 »

Transparency in International Commercial Arbitration: The Road Ahead

By Sarthak Malhotra 

In 1995, a former Secretary General of the ICC International Court of Arbitration, Stephen R. Bond, in an article, noted that the users of international commercial arbitration “almost invariably” mentioned the fact that the arbitral proceedings and the resulting award do not enter into the public domain as a feature which attracted parties to it.[1] Whether confidentiality is an essential feature of international arbitration cannot be stated with certainty, considering how the New York Convention and the UNCITRAL Model Law on International Commercial Arbitration do not expressly recognize it.Read More »

Analysing the Legality of India’s ‘Surgical Strike’ under International Law

by Sujoy Sur

What happened?

India took military action at eight terrorist launch-pads across the LOC in Pakistan Occupied Kashmir (POK). India chose to tag the attack as a ‘surgical strike’, thus, implying the remedial nature of its action. It is to be noted that India in its official announcement did not deem it to be an act in retaliation to the Uri attacks but a military measure against the increasing incursions by non-state actors in the territory of India.

Image Courtesy: Indian Express

To look at the act from a layman’s point of view in light of prevalent international notions of territorial sovereignty, war, and military action, it seems to be a deliberate attempt of entering the territory of another state and carrying out targeted killings. Now that Pakistan has not owned up to it, that is, it has blatantly denied that any such measure was taken by the Indian army, it has reduced the measure to a general ceasefire violation, which is not uncommon in the region. Also, it means that the repercussions bilaterally will not be unforeseeable or grave. But, since top Indian officials have endorsed the act it comes under the purview of state practice under international law from India’s end. This calls for a pertinent question, whether India’s surgical strike was legal under international law?Read More »

International Law Commission and the International Legislative Process

By Aniruddha Rajput*

Unlike the process of law making in domestic legal regimes, the process of law making in international law is decentralized and horizontal. There is no legislature in the international legal system. The General Assembly of the United Nations serves as a forum for deliberations by the entire membership of the United Nations and some of the activities there do contribute towards creation of a law. Yet its roles, functions and powers are not entirely comparable with a legislature at the domestic law level. Absence of a centralized legislature or a vertical system does not imply that there is no process of law making. The process of law making – unconventional as compared to domestic system is set out in Article 38 (1) of the Statute of the International Court of Justice. The sources of law specified therein: custom, treaty, general principles and subsidiary sources (judicial decisions and writings of publicists) specify the sources but do not discuss the legislative process in international law.

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