Neither the arbitral tribunal’s order demanding Ecuador act to stop enforcement of the $18 Billion judgment against Chevron, nor Ecuador’s continued brazen refusal to follow the order is really much a surprise. The Chevron-Ecuador Death Cage Match continues unabated and has gotten so out of control that almost nothing shocks me about this case anymore.  A former Ecuadorian judge swearing in US federal court that he was paid thousands of dollars by US plaintiffs attorneys to ghostwrite the underlying case against Chevron is just another weird detail in an already sordid story.

The theory of the interim award is interesting.  Ecuador has a duty to preserve the status quo while the arbitral tribunal reviews the merits of Chevron’s claims against Ecuador.  But the plaintiffs in the Lago Agrio case are not parties to the arbitration and are free to continue to pursue enforcement.  I suppose the argument is Ecuador is facilitating the overseas enforcement actions by not suspending  the domestic Ecuadorian litigation. That does seem a problem, although what exactly could Ecuador do? Pass new legislation ordering its courts to stop the domestic litigation?

I may be missing something, I am not sure this award does Chevron much good.  It simply puts a little more leverage on Ecuador to do something to stop the enforcement actions against Chevron, or face responsibility for costs incurred by Chevron from the enforcement actions.  Fair enough, but if Ecuador feels the tribunal will ultimately rule for them anyway on the merits, then this award doesn’t really add a whole lot of pressure, nor does it give Chevron much additional leverage in foreign courts like Argentina or Canada where enforcement actions are proceeding.  The US litigation attempting to show fraud is more likely to bear fruit than this award in stopping those actions.

In other words, it is rational for Ecuador to drag its feet on obeying the arbitral tribunal’s various interim awards.  The only basis for condemning Ecuador is simple: it is flagrantly and openly violating its solemn treaty obligations.  But should it be condemned on those grounds alone?  Neither rational choice nor realist scholars would do so.  But what about the rest of you?

I have posted on SSRN my latest article, “Ancillary Discovery to Prove Denial of Justice” just published in the Virginia Journal of International Law. It analyzes Section 1782 discovery proceedings in the context of BIT arbitration and argues that there is now uniform agreement among federal courts that investment arbitration panels are “international tribunals” within the meaning of Section 1782.

But the article has salience outside that context, and could be applied to many foreign or international proceedings. One plaintiff involved in a French proceeding, for example, served a discovery subpoena on a French party while he was visiting a museum on vacation in the United States, thereby incorporating American discovery into the French proceeding. A German defendant in a German proceeding issued a Section 1782 discovery subpoena on the American plaintiff, and thereby incorporated non-reciprocal American-style discovery into the German proceeding.

The article presents several conclusions regarding the growing use of ancillary discovery in international adjudication, particularly in the context of investment arbitration claims against respondent states.

First, ancillary discovery under Section 1782 reflects a congressional intent to allow interested parties to avail themselves of liberal discovery under the Federal Rules of Civil Procedure, resulting in the indirect incorporation of American-style discovery into foreign or international proceedings. If this trend continues, American discovery will become an important ancillary mechanism to gather evidence, in addition to and perhaps in lieu of the traditional evidence gathering procedures utilized by foreign or international tribunals. For example, I outline in the article how all the important fraud information Chevron received against Ecuador came from Section 1782 proceedings, not evidence gathering pursuant to foreign or international proceedings.

Second, liberal discovery pursuant to Section 1782 promotes evidentiary forum shopping, encouraging parties to pursue ancillary discovery in the United States rather than rely on the discovery procedures available in foreign or international proceedings. If parties can rely on the liberal discovery standard of FRCP Rule 26, requiring only that the requested information is “reasonably calculated to lead to the discovery of admissible evidence,” then why opt for narrow discovery approaches of foreign or international tribunals?

Third, the use of Section 1782 in aid of international tribunals reflects sensitivity to the comity of courts, not the comity of nations, such that federal courts determining whether to order ancillary discovery should consider the international tribunal’s receptivity to such assistance, but not the attitude of the foreign sovereign responding to allegations of international law violations. International tribunals thus far have been extremely passive in their role in this regard, whereas respondent state’s have protested vigorously, but to no avail.

Fourth, in the specific context of investment arbitration, providing foreign investors with a remedy for denial of justice, together with a robust means to prove such a violation, alters the host State’s incentives and requires it to play a two-level game that reconciles international obligations with domestic political preferences. Robust evidence gathering at the international level increases the likelihood that respondent states will be liable for international law violations.

Finally, the article outlines the possible abuse of ancillary discovery under Section 1782. Chevron’s recent subpoena of Kevin Jon Heller’s email logs is an example. Email providers such as Google, Yahoo, and Microsoft are becoming obvious targets for discovery by parties seeking access to email account information of individuals involved in domestic, foreign, or international proceedings. Section 1782 is particularly vulnerable to abuse where one party is situated (or transiently found) in the United States, while all the relevant information of the other party is located abroad.

Apropos of Kevin’s recent posts, Professor George Bisharat of UC Hastings Law School takes to the NYT op-ed pages to call for Palestine to join the ICC and seek investigation of Israel’s actions in the West Bank and Gaza.

The Palestinians’ first attempt to join the I.C.C. was thwarted last April when the court’s chief prosecutor at the time, Luis Moreno-Ocampo, declined the request on the grounds that Palestine was not a state. That ambiguity has since diminished with the United Nations’ conferral of nonmember state status on Palestine in November. Israel’s frantic opposition to the elevation of Palestine’s status at the United Nations was motivated precisely by the fear that it would soon lead to I.C.C. jurisdiction over Palestinian claims of war crimes.

Israeli leaders are unnerved for good reason. The I.C.C. could prosecute major international crimes committed on Palestinian soil anytime after the court’s founding on July 1, 2002.

As our readers know, the retroactivity issue is not quite so easy, although there is certainly ample evidence this could happen. But I have two main reactions:

1) Are we so sure that the UN General Assembly vote to upgrade Palestine to observer state status settled the statehood question for the purposes of the ICC? After all, Palestine had already been recognized by more than 100 countries prior to the recent GA vote, but the ICC rejected jurisdiction in that situation.  What has really changed?  I agree that the GA vote matters, but does it matter enough?

2)  Professor Bisharat also suggests that “Ending Israel’s impunity for its clear violations of legal norms would both promote peace in the Middle East and help uphold the integrity of international law.”  I am doubtful about both of these claims.  Even if Israel is guilty of the violations Bisharat alleges, how does chasing them with ineffectual ICC arrest warrants help the peace process? And how would the integrity of international law be upheld by ICC investigations that will surely be rejected by Israel (and Hamas when they realize what they are facing).

If this is the Palestinian strategy to resolve their dispute with Israel, than the prospects for the settlement of this dispute are even more remote than I had previously believed.

For those of you wondering how seriously the Chinese media is taking the Philippines’ arbitration claim against China over the South China Sea (there must be at least two of you out there), here is an illustrative cartoon from a Chinese newspaper, “JingChu Times”, in Central China (although originally from another publication).

Although one doesn’t need to read Chinese to get the jist, here is my attempt to translate anyway.

The Foot is labeled: “Chinese Territory”

The Fish biting the Foot’s toe is labeled: “The Philippines”.  The Fish is holding a sign with the words: “Mine!”.

Yes, this Annex VII UNCLOS arbitration claim is really sending shock waves throughout China.

[I know that what this blog needs is yet another post on the China-Philippines UNCLOS Arbitration! We aim to please!]

Steve Groves of Heritage asks in the comments to my prior post: What happens if China simply refuses to show up at the arbitration? Can an arbitral tribunal even be formed to rule on jurisdiction?

This is something that I’ve wondered too, and then I realized Annex VII of UNCLOS appears to settle this issue as well.  The key provision is Article 3 of Annex VII. Under Art. 3(b), the initiating party appoints an arbitrator, which the Philippines has already done.  Then,

(c) The other party to the dispute shall, within 30 days of receipt of the notification referred to in article l of this Annex, appoint one member to be chosen preferably from the list, who may be its national. If the appointment is not made within that period, the party instituting the proceedings may, within two weeks of the expiration of that period, request that the appointment be made in accordance with subparagraph (e).

(Emphasis added.).  Turning to Subparagraph (e):

(e) Unless the parties agree that any appointment under subparagraphs (c) and (d) be made by a person or a third State chosen by the parties, the President of the International Tribunal for the Law of the Sea shall make the necessary appointments. …

(Emphasis added). Essentially, this means the President of ITLOS can fill out the rest of the arbitral tribunal if China tries to boycott, by appointing the remaining four members.  As Craig Allen of the University of Washington pointed out to me in an email, the current President of ITLOS is Shunji Yanai, a well-respected diplomat and jurist.  That is to say, a well-respected Japanese diplomat and jurist.  I’ve met President Yanai briefly, and he is a very smart and well-accomplished guy.  But Japan is just not on China’s BFF list right now.  China’s Weibo Internet commenters might well just blow up if this happens.

Professor Allen suggests that the President of ITLOS might, before appointing arbitrators, consider the jurisdictional objection and refuse to appoint a tribunal. I think this is a plausible, but not the most natural reading of Annex VII, Art. 3.  Professor Allen also raises a good point: China’s best friend here might well be the United States, which has a strong interest in seeing an expansive reading of the Article 298 exemptions.

In any event, the few Annex VII arbitral tribunals that have been constituted have generally not hesitated to rule on their own jurisdiction.  See Barbados v. Trinidad, or Guyana v. Suriname. (For a full list, see here).  Even worse from China’s perspective, these Annex VII arbitral tribunals issued their jurisdictional decision at the same time as they issued the award on the merits.  They don’t have to do so, and they can bifurcate the proceedings to address jurisdiction first.  But they don’t have to.

Would one of the journalists forced to sit through Chinese Ministry of Foreign Affairs press briefings please ask the spokesman to address the arbitral tribunal question?  Or at least, ask them again? Will China play the arbitral tribunal game and appoint someone by February 21?  Or will they let President Yanai appoint the tribunal for them?   The 30-day clock is running.

This article from the Global Times, a hawkish state-controlled newspaper in China, probably reflects a little bit of the official Chinese view on the Philippines UNCLOS claim. It also contains this troubling bit of analysis, from a Chinese scholar:

The international court would not take the case without agreements from all parties involved, Dong Manyuan, a researcher at the China Institute of International Studies, told the Global Times.

Uh, yes, that’s true in a general sense.  But China has already agreed to allow an Article 287 arbitral tribunal to take this case and at least to determine jurisdiction. Article 288(4) would seem to be the last word on this point.

4. In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.

Sorry, Global Times! China is stuck with this case, at least as a legal matter, and at least through the jurisdictional phase. I hope the Chinese government is getting better legal advice than this. China could boycott the arbitration, but they would be in a clear violation of Article 287 and Article 288 of UNCLOS.  Will it dare to do so?

China’s initial reaction to the Philippines’ decision yesterday to file an arbitration claim has been to stick to its guns.  From the BBC:

On Wednesday, Chinese foreign ministry spokesman Hong Lei told journalists that China has “indisputable sovereignty over the South China Sea islands and adjacent waters, which has abundant historical and legal grounds”.

“The key and root of the dispute over the South China Sea between China and the Philippines is territorial disputes caused by the Philippines’ illegal occupation of some of the Chinese islets and atolls of the Spratly Islands,” he said.

He said China had been “consistently working towards resolving the disputes through dialogue and negotiations to defend Sino-Philippine relations and regional peace and stability”.

Some observers, quoted here by the VOA, have suggested that China will simply not participate in the UNCLOS arbitration.  I think this makes sense from a strategic perspective, but it is hard to understand how that would work from a legal perspective.

As a legal matter, China has an obligation to participate in the UNCLOS arbitration by selecting an arbitrator, and then a schedule for the proceedings.  It will then file a challenge to the UNCLOS arbitration tribunal’s jurisdiction (an argument I believe it has a good chance to win).  If China simply doesn’t show up, then it would be in clear violation of its UNCLOS obligations.

China has an interesting choice here. It could participate in the arbitration, and if it loses on jurisdiction, simply withdraw and declare that it won’t abide by the tribunal’s decision.  Or it could litigate to the merits, and then if it loses, simply refuse to comply with the arbitral tribunal’s award.

None of these potential arbitral results are really all that attractive, from China’s perspective. But defaulting on the arbitration is not all that attractive either.  What China does here will tell us a lot about China’s commitment to its strategic goal of controlling the South China Sea, as well as its level of commitment to UNCLOS and international dispute resolution.

In a potentially huge development, the Government of the Philippines announced earlier today that it has filed for arbitration with China under the UN Convention for the Law of the Sea. The Philippines’ claim places China’s controversial sovereignty claim over the South China Sea (see right) squarely before an international arbitral tribunal convened under Article 287 of UNCLOS.  According to the Philippines Foreign Minister, here are the main claims:

1. The Philippines asserts that China’s so-called nine-dash line claim that encompasses virtually the entire South China Sea/West Philippine Sea is contrary to UNCLOS and thus unlawful.
2. Within the maritime area encompassed by the 9-dash line, China has also laid claim to, occupied and built structures on certain submerged banks, reefs and low tide elevations that do not qualify as islands under UNCLOS, but are parts of the Philippine continental shelf, or the international seabed.
3. In addition, China has occupied certain small, uninhabitable coral projections that are barely above water at high tide, and which are “rocks” under Article 121 (3) of UNCLOS.China has interfered with the lawful exercise by the Philippines of its rights within its legitimate maritime zones, as well as to the aforementioned features and their surrounding waters.
4. The Philippines is conscious of China’s Declaration of August 25, 2006 under Article 298 of UNCLOS (regarding optional exceptions to the compulsory proceedings), and has avoided raising subjects or making claims that China has, by virtue of that Declaration, excluded from arbitral jurisdiction.

Some early thoughts.  As I argued here, I still think the Philippines has a massive jurisdictional problem because of China’s Article 298 declaration excludes the following certain subjects from this kind of arbitration.

(a)(i) disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles….

China is claiming (at least it has often seemed to be claiming) that it has complete sovereignty over the South China Sea (per the map above). I take the Philippines is arguing that China’s South China Sea claim is not really a “sea boundary  delimitation” within the meaning of Article 15.  Nor is the Chinese SCS claim about “historic bays” and “titles”.  I don’t think that the Philippines has a hopeless case, but I do think they will face a huge challenge to get any arbitral tribunal to assert jurisdiction here, especially since one judge will be appointed by China.

On the plus side, if the Philippines manages to get past the jurisdictional hurdle, it seems to me that they have a very good chance of prevailing since China’s claim is hard to square with the rest of UNCLOS.  Moreover, they force China to go on the defensive here without actually threatening China in any military or economic way.

Strategically, I think I understand why the Philippines has filed this claim. They have very little leverage with China: economically, politically, or militarily.  In this forum, the worst case scenario is the Philippines will lose on jurisdiction. This shouldn’t affect the merits of their claims, though.  For China, the worst case scenario is that it loses on the merits and would have to face the decision of whether to comply with the tribunal.  If they lose, I can see China simply withdrawing from UNCLOS.

In any event, I think it is safe to say this it a game changer in the long-running South China Sea dispute.  It is also, without question, the most important case that has ever been filed under the dispute resolution procedures of UNCLOS.  It will be a crucial test of the UNCLOS institutions, as well as of UNCLOS members.  I am skeptical that China will allow itself to be drawn into serious international adjudication (see my argument here), but it will be fascinating to see how China reacts.

I am delighted to announce that Thomas Graham, the U.S. Member of the World Trade Organization’s Appellate Body, will be giving the Shapiro Lecture at Hofstra entitled ”It Sure Looks Different from the Inside: Deciding International Disputes at the WTO.”   Graham has been an observer and a participant in the international trade law system since the 1970s as a USTR attorney, private lawyer, Deputy US Trade Representative, and now as a WTO Appellate Body Member.

For those of you international trade law groupies or international dispute resolution folks trapped living in the NY area this winter, please consider visiting us at Hofstra on February 6.  If you can’t, we will be webcasting it live as well.

[Başak Çalı is Senior Lecturer (Associate Professor) in Human Rights at the University College London]

This post is the first in a series of three.

The relationship between the highest domestic courts and the European Court of Human Rights has been subject to much debate in the past ten years in Europe. Some of this debate focuses on the backlash against the dynamic interpretation of the European Convention of Human Rights by the European Court of Human Rights. The interpretive principles such as the living instrument doctrine, and positive obligations are often thought to upset a wide variety of values including the original consent of states, democratic governance, and integrity and predictability of domestic legal systems. Some readers on the other side of the Atlantic view these debates as a good reason for remaining outside of international adjudication of human rights. Overly strong international human rights courts involved in exercises of ‘virtue ethics’ are not regarded as a good development for integrity of constitutional systems and democratic politics. Much of these debates assume that international human rights bodies, including the European Court of Human Rights, act as a Court of fourth instance, exercise their own opinions on the interpretation of facts on the ground or that they micro-manage domestic legal orders.

I would like to suggest a different framework here. Much criticism of the European Court of Human Rights and the international human rights law in general relies on the assumption that international bodies are engaged in strong judicial review. I suggest that this is a descriptive error. Much of what the European Court of Human Rights does is best understood as weak international judicial review or, at least, the development of standards of weak international judicial review in the making. Weak judicial review involves leaving an interpretive discretion to domestic courts that take into account the broader interpretive principles of the Court and admitting that where there is more than one reasonable interpretation, the Strasbourg Court will defer to the interpretation favoured by domestic high courts. This makes many of the concerns regarding micro-management of domestic systems by the Strasbourg Court ill-founded.  The most recent example of this is the Von Hannover case of 2012. In this case the Strasbourg Court is embracing this careful approach to its relationship with Constitutional and Supreme Courts, and going through special pains to signal that it wants to work with strong Supreme Courts rather than compete with them. Admittedly, for weak international judicial review to be in place the domestic court 1) has to be a strong rule of law court, and 2) must take international human rights protections seriously.  The development of the standard of weak international judicial review in the human rights field has parallels with the doctrine of  ‘responsible representative governments’ in the WTO Hormones case and points to an important emerging theme for future debate: should international courts treat different domestic courts differently as a matter of doctrine?  Do we need an explicit doctrine of ‘responsible domestic courts’ for international judicial review?

In the forthcoming post, I will review two cases from opposite ends of the Council of Europe terrain: the Von Hannover v. Germany No. 2 case of 2012 and the Fatullayev v. Azerbaijan case of 2010 to show that the European Court of Human Rights is signalling restraint when faced with a responsible domestic court and is willing to signal activism when faced with the opposite.

[Jelia Sane is studying for the English Bar at City University, London. She holds an LLM in Public International Law from University College London and has previously interned at the ICC, the Centre for Justice and International Law, and the Extraordinary Chambers in the Courts of Cambodia.]

The unanimous acquittal and subsequent release of Mathieu Ngudjolo Chui by Trial Chamber II of the International Criminal Court (ICC) on 18 December 2012 was a shock and disappointment to those following the work of the Court and development of international criminal justice. The Open Society Justice Initiative (OSJI) said the judgment sends a “worrying signal about the quality of ICC prosecutions,” and Human Rights Watch emphasized that the acquittal leaves the victims of the Bogoro massacre without justice. While it is disappointing that the Office of the Prosecutor (OTP) failed to present a solid case, the acquittal of Ngudjolo demonstrates that the judges of the ICC are independent, impartial, and will not convict the accused on the basis of weak evidence, showcasing their willingness and ability to uphold the law.

The Ngudjolo judgement is only the second judgment issued by the ICC (the Court’s first judgment, convicting Thomas Lubanga, was issued in March 2012). His case was expected to be an important milestone, as it was the first time that crimes against humanity and sexual violence offences had been charged at the ICC. The ruling represents a missed opportunity in this regard, as the judges based their acquittal on the assessment of Ngudjolo’s lack of authority, making no findings on the crimes themselves.

Background

The Prosecution alleged that Ngudjolo was the former leader of the Front des Nationalistes et Integristes (FNI), an armed rebel group in the Ituri region of the Democratic Republic of Congo (DRC) largely made up of combatants from the Lendu ethnic group. Relying on Article 25(3)(a) Rome Statute, the Prosecution argued that he was criminally responsible for the commission, jointly with Germain Katanga, the leader of another armed militia (the Force de Résistance Patriotique en Ituri, FRPI), of an FNI/FRPI attack against Bogoro village on 24 February 2003, during which 200 civilians were killed. They also alleged that he was directly responsible for the crime of using child soldiers, and that he and Katanga had a common plan to “wipe out” Bogoro. Ngudjolo was accused of three counts of crimes against humanity (murder, sexual slavery, and rape) and seven counts of war crimes (willful killing, directing an attack against civilians, pillage, the destruction of property, the use of child soldiers, rape, and sexual slavery).

Findings

Trial Chamber II held that it had not been proven beyond reasonable doubt that Ngudjolo was the commander of the Lendu combatants from Bedu-Ezekere at the time of the 2003 attack in Bogoro and, consequently, that he could not be proven to be responsible for the crimes charged. Given this finding, the judges declined to examine whether he had taken part in a common plan together with Germain Katanga to conduct the attack. The judges did emphasise however that this did not mean “that crimes were not committed in Bogoro on 24 February 2003 nor does it question what the people of this community have suffered on that day.”

In addition, the Chamber found that, at the material time, the use of child soldiers was a widespread phenomenon in the Ituri region, and that child soldiers were present during the Bogoro attack. However, it ruled that there was insufficient evidence to prove beyond reasonable doubt that the accused had used child soldiers before, during, or after the 2003 attack, or that there was any link between the presence of child soldiers in Bogoro and the accused.

The Trial Chamber’s Approach

The ICC’s first acquittal will undoubtedly be much discussed and debated. The OTP has indicated its intention to appeal the judgment which means that more developments will follow in the coming weeks and months. Nonetheless, a cursory reading of the judgment gives rise to the following two observations on the Chamber’s approach in reaching its decision.

[Craig H. Allen is the Judson Falknor Professor of Law at the University of Washington in Seattle.]

On December 15, 2012, one phase of the dispute between the Argentine Republic and the Republic of Ghana over the “seizure” of the Argentine frigate ARA Libertad while in a Ghanaian port came to an end, when the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, Germany ordered Ghana to “forthwith and unconditionally release the frigate ARA Libertad” and to “ensure that the frigate ARA Libertad, its Commander and crew are able to leave the port of Tema and the maritime areas under the jurisdiction of Ghana, and … that the frigate ARA Libertad is resupplied to that end.” (See Order of 15 December 2012).

The order came just one month after Argentina filed its application for provisional measures with the ITLOS. The tribunal’s decision—which should receive a warm welcome in the Pentagon—sends a clear message on the principle of sovereign immunity of warships and the readiness of ITLOS to enforce that immunity even when the warship is in the port or internal waters of another state—at least if the involved states are party to the 1982 LOS Convention.

The dispute between the two states has its roots in Argentina’s 2001 default on roughly $100 billion in sovereign debt, reportedly the largest sovereign default in history. NML Capital Investments, which owns some $1billion in Argentina’s sovereign debt, obtained judgment in a New York federal district court for $284 million in 2006. The U.K. Supreme Court later upheld NML’s right to execute its judgment against Argentina’s assets in the U.K. (NML Capital Ltd  v Republic of Argentina, [2010] EWCA Civ. 41, aff’d, [2011] UKSC 33), a decision extensively relied on by agents for Ghana during oral argument at the ITLOS.