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Guyana v. Suriname

Guyana v. Suriname. PCA CASES UNDER UNCLOS. Malaysia v. Singapore Land reclamation by Singapore – ended September 1, 2005 Barbados v. Trinidad & Tobago Maritime delimitation – ended April 11, 2006 Guyana v. Suriname Maritime delimitation – ended September 17, 2007

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Guyana v. Suriname

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  1. Guyana v. Suriname

  2. PCA CASES UNDER UNCLOS Malaysia v. Singapore Land reclamation by Singapore – ended September 1, 2005 Barbados v. Trinidad & Tobago Maritime delimitation – ended April 11, 2006 Guyana v. Suriname Maritime delimitation – ended September 17, 2007 Ireland v. United Kingdom (“Mox Plant Case”) Ended June 6, 2008 Bangladesh v. India Pending Mauritius v. United Kingdom Pending

  3. UNCLOS ARTICLE 287 “[...] a State shall be free to choose [...] one or more of the following means for the settlement of disputes [...]: (a) the International Tribunal for the Law of the Sea [...]; (b) the International Court of Justice; (c) and arbitral tribunal constituted in accordance with Annex VII”

  4. GUYANA-SURINAME

  5. GUYANA-SURINAME AWARD MAP 1

  6. GUYANA-SURINAME AWARD MAP 2 6

  7. GUYANA-SURINAME AWARD MAP 3 7

  8. Place of Arbitration

  9. ART. 12 EUROPEAN CONVENTION ON STATE IMMUNITY Where a Contracting State has agreed in writing to submit to arbitration […] that State may not claim immunity from the jurisdiction of a court of another Contracting State on the territory or according to the law of which the arbitration has taken or will take place in respect of any proceedings relating to: - the validity or interpretation of the arbitration agreement; - the arbitration procedure; - the setting aside of the award; unless the arbitration agreement otherwise provides. Paragraph 1 shall not apply to an arbitration agreement between States.

  10. ARBITRATION RULES OF THE UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW 1976 Article 1.2 These rules shall govern the arbitration except that where any of these Rules is in conflict with a provision of the law applicable to the arbitration from which the parties cannot derogate, that provision shall prevail. Article 32.7 If the arbitration law of the country where the award is made requires that the award be filed or registered by the arbitral tribunal, the tribunal shall comply with this requirement within the period of time required by law.

  11. State Immunity “Although modern international law does not require the courts of one State to refrain from deciding a case merely because a foreign state is an unwilling defendant, there remains today a hard core of situations where a foreign State is entitled to immunity.” -Hazel Fox QC

  12. Appointment of Arbitrators

  13. Article 24, 1899 Convention Each party appoints two Arbitrators, and these together choose an Umpire. If the votes are equal, the choice of the Umpire is entrusted to a third Power, selected by the parties by common accord. If an agreement is not arrived at on this subject, each party selects a different Power, and the choice of the Umpire is made in concert by the Powers thus selected.

  14. Challenges

  15. 1. Arbitration Standard: Article 12 (1) UNCITRAL Arbitration Rules 2010 Any arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator’s impartiality or independence.

  16. 1. Arbitration Standard: Article 10 (1) PCA Optional Rules for Arbitrating Disputes Between Two States Any arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator’s impartiality or independence.

  17. International Courts’ Standard: International Court of Justice Article 24 1. […]. 2. If the President considers that for some special reason one of the members of the Court should not sit in a particular case, he shall give him notice accordingly. 3. If in any such case the member of the Court and the President disagree, the matter shall be settled by the decision of the Court. Article 16 No member of the Court may exercise any political or administrative function, or engage in any other occupation of a professional nature. Article 17 No member of the Court may act as agent, counsel, or advocate in any case. No member may participate in the decision of any case in which he has previously taken part as agent, counsel, or advocate for one of the parties, or as a member of a national or international court, or of a commission of enquiry, or in any other capacity.

  18. Challenge to Judge ElarabyCase Concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) ICJ: Previous diplomatic and governmental functions do not fall within the scope of Article 17 (2) ICJ Statute

  19. Applicable Law

  20. Article 38Statute of the International Court of Justice The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

  21. Article 33Permanent Court of Arbitration Optional Rules for Arbitrating Disputes between two States 1. The arbitral tribunal shall apply the law chosen by the parties, or in the absence of an agreement, shall decide such disputes in accordance with international law by applying: (a) International conventions, whether general or particular, establishing rules expressly recognized by the contesting States; (b) International custom, as evidence of a general practice accepted as law; (c) The general principles of law recognized by civilized nations; (d) Judicial and arbitral decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the arbitral tribunal to decide a case ex aequo et bono, if the parties agree thereto.

  22. “Arbitral awards may not serve as a source of law but in accordance with Article 38 (d) of the Statutes may serve as subsidiary means for the determination of rules of law”. Gilbert Guillaume, “Can Arbitral Awards Constitute a Source of International Law under Article 38 of the ICJ Statute?” in Precedent in International Arbitration, IAI Series on International Arbitration No. 5, at 105 (Y. Banifatemi ed., Juris Publishing, 2008)

  23. “And so we find that even judgments of the ICJ do not, as such, create binding jurisprudence, but only a “subsidiary means” to determining the norms of international law. International arbitral awards, it would seem, are of an equal – and equally limited – dignity, as the functional if not terminological equivalent of “judicial decisions.” And in many cases, depending on the composition of the tribunal, they are also exceptionally well-considered pronouncements of “the most highly qualified publicists” (assisted, one might add, by detailed and skilled legal argument).” Jan Paulsson, “International Arbitration and the Generation of Legal Norms”, Transnat’l Disp. MGMT 3(5), 2006.

  24. UNITED STATES OF AMERICA v. THE NETHERLANDS THE ISLAND OF PALMAS CASE (OR MIANGAS)

  25. Croatia – Slovenia Arbitration Agreement4 November 2009 Article 4: Applicable Law The Arbitral Tribunal shall apply (a) the rules and principles of international law for the determinations referred to in Article 3 (1) (a); (b) international law equity and the principle of good neighbourly relations in order to achieve a fair and just result by taking into account all relevant circumstances for the determinations referred to in Article 3 (1) (b) and (c).

  26. Enforcement of Award

  27. Binding nature of arbitral award In the Treaty or compromis In the Treaty: Annex VII arbitration under UNCLOS Article 11, UNLCOS: “The award shall be final and without appeal, unless the parties to the dispute have agreed in advance to an appellate procedure. It shall be complied with by the parties to the dispute.” In a compromis: Arbitration between Croatia and Slovenia Article 7(2), Arbitration Agreement: “The award of the Arbitral Tribunal shall be binding on the Parties and shall constitute a definitive settlement of a dispute”

  28. Annulment of Award

  29. Forum? ICSID National Courts 3. International Court of Justice

  30. 1. Article 52 (1) ICSID Either party may request annulment of the award […] on one or more of the following grounds: (a) that the Tribunal was not properly constituted (b) that the Tribunal has manifestly exceeded its powers; (c) that there was corruption on the part of a member of the Tribunal; (d) that there has been a serious departure from a fundamental rule of procedure; or (e) that the award has failed to state the reasons on which it is based.

  31. 3. International Court of Justice Case Concerning the Arbitral Award Made by the King of Spain on 23 December 1906 [Honduras v. Nicaragua] (1960) Validity of award by King of Spain concerning determination of border between Honduras and Nicaragua Alleged excess of mandate for not complying with the Gámez-Bonilla Treaty ICJ decision: No appeal, no substantive review No excess, decision based on historical and legal considerations and legitimate interpretation of Treaty

  32. b) Case Concerning the Arbitral Award of 31 July 1989 [Guinea-Bissau v. Senegal] (1991) Alleged non-compliance by the tribunal with provisions of the arbitration agreement ICJ: only if “manifest breach of the competence conferred [...] by the Arbitration Agreement, either by deciding in excess of, or by failing to exercise, [...] jurisdiction“ No review of possible interpretations of provisions of arbitration agreement and consideration of most preferable interpretation

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