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CONTENTS
PRAXIS
RES JUDICATA
THE CASE OF CERTAIN IRANIAN ASSETS (IRAN V. USA): MISSED OPPORTUNITY FOR THE ICJ AND PROCEDURAL TRICKS OF THE PARTIES
This article analyzes the circumstances of the case of Certain Iranian Assets (Islamic Republic of Iran v. United States of America) that has been decided by the International Court of Justice in 2023. The author examines the arguments of the parties and the conclusions reached by the Court in the judgment on jurisdiction in 2019 and in the judgment on the merits of the dispute in 2023. It is noted that the main issue in this case was the legality, in terms of customary international law, of the actions of the U.S. authorities to seize the assets of Bank Markazi to pay compensation awarded by the U.S. courts to victims of terrorist acts. Nevertheless, the International Court of Justice, at the stage of recognizing its jurisdiction, has bypassed the issue of the immunities of central banks’ assets, as defined by customary international law rules, using a narrow textual interpretation of the Treaty of Amity between the United States and Iran. The refusal of the Court to consider these issues has caused undisguised regret among some scholars and represents a missed opportunity to clarify this controversial issue. Iran’s attempt to present Bank Markazi as a “company” engaged in commercial activities, and thus subject to the guarantees, outlined in the Treaty of Amity, also did not find understanding among the judges of the International Court of Justice. The Court’s conclusion that the activities of central banks cannot be divided into commercial and sovereign due to the specificity of their functions and activities is more consistent with the assumption of absolute immunity of such assets. It is noted that the creativity of both sides of the dispute has forced the Court to answer a wide range of controversial questions, such as those regarding the powers and activities of central banks, the “clean hands” doctrine, exhaustion of local remedies and abuse of procedural rights by the parties. At the same time, it is pointed out that in terms of possible compensation, the United States has won more than Iran, having managed to remove the issue of the assets of Bank Markazi in the amount of $1,9 billion from the Court’s jurisdiction, since the value of the assets of other Iranian companies barely exceeds $25 million.
THE JUSTICE SYSTEM OF THE NETHERLANDS: THE FAIREST IN THE WORLD?
This article deals with the decision of the Supreme Court of the Netherlands (the Court) in a case setting-aside arbitration awards (the Awards) rendered ad hoc by the international investment arbitration tribunal on the claim of former shareholders of OAO Oil Company Yukos (Yukos) (the Claimants) against Russia. According to Russia, the Hague Court of Appeal came to incorrect conclusions regarding the issues of provisional application of the Energy Charter Treaty of 1994 (ECT) and of qualification of the acquisition of Yukos shares as investments within the meaning of the ECT, as well as the Court of Appeal’s conclusions on the legality of these investments. Russia also presented arguments in support of procedural violations by the arbitration tribunal in all three of its proceedings: the active role of the tribunal’s assistant when rendering the Awards, its ignoring the requirement of consultation with the competent Russian tax authority, and its insufficient justification of individual issues. The Court presented its reasoned decision on many of the arguments stated by Russia. The Court also considered the issue of the admissibility of the Claimants’ statements of arguments presented for the first time after the arbitration proceedings. Separately, Russia claimed fraud by the Claimants during the arbitration proceedings. According to the respondent State, the Claimants did not disclose certain evidence and bribed a witness. These are infrequent in international investment arbitration practice, especially at the stage of setting-aside arbitral awards. In this regard, the authors have researched the validity of Russia’s arguments and the prospects for them at a new hearing of the case by the Amsterdam Court of Appeal on setting-aside the Awards. To assess these prospects, they review a similar case in the Netherlands court in which fraud was alleged after rendering of an arbitral award. The article reveals the particularities of the Netherlands’ legislation regarding two procedures for cancellation of arbitral awards – setting-aside (vernietiging) and revocation (herroeping). Russia asserted that the Dutch state courts had the right to annul the Awards on both legal grounds, a claim which the Court found permissible. However, the Court did not agree with Russia’s arguments on issues of international investment law.
SCRIPTORIUM
JUSTICIA
THE CONSENSUS EFFECT WITHIN THE FRAMEWORK OF THE EVOLUTIVE INTERPRETATION OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS
Consensus serves as an integral tool and “helper” of the ECtHR in evolutive interpretation, making it possible to identify agreement among the Member States of the Council of Europe on ambiguous issues. Consensus remains for the time being an uncontested tool that allows the Court to be most objective in evolutive interpretation and to preserve the legitimacy of its resulting judgments. The legitimacy of ECtHR judgments in the eyes of the public and the Member States of the Council of Europe largely depends on the perfection and clarity of this consensus-seeking methodology. This study analyzes the formal grounds for the application of consensus based on the Preamble of the Convention and the rules of interpretation set out in the Vienna Convention on the Law of Treaties. Most of the analysis is devoted to the case law of the ECtHR, allowing identification of some criteria for determining the European consensus. It is noted that sometimes the Court refers to international trends and international treaties not ratified by Member States to reach the consensus it needs. A comparative analysis also reveals synonyms of “consensus” which are used in evolutive decisions to mitigate irritation on the part of the respondent State in sensitive cases. The author also draws attention to the fact that the Court’s consensus does not necessarily have to be based on an analysis of the practice of all Member States of the Council of Europe or even a majority of Statges, since such an approach would not allow the evolutionary development of minority rights.
INCONSISTENCY IN THE PRACTICE OF INVESTMENT TRIBUNALS ON ISSUES OF PROOF: DOES THE REFORM HAVE ANYTHING TO OFFER?
Reform of the existing system of investment dispute settlement has been on the agenda of the United Nations Commission on International Trade Law (UNCITRAL) for several years now. One of the main problems negatively affecting the legitimacy of the current regime is the inconsistent practice of investment tribunals pertaining to the application of investment treaties. States have suggested different solutions, including institutional reforms such as creating a multilateral investment court or a permanent appellate body, as well as the development and adoption of instruments of authoritative interpretation. However, these options have been discussed exclusively in relation to the practice of investment tribunals regarding the interpretation and application of provisions of investment treaties, while what remains unaddressed is the practice regarding issues that seldom find any embodiment in the text of investment treaties, specifically, issues of burden of proof and standard of proof. In this article, the author discusses the problem of inconsistent practice of investment tribunals regarding burden of proof and standard of proof that had previously been widely covered in academic literature. The author demonstrates that, on various issues pertaining to the allocation of burden of proof or determining the standard of proof applicable to certain factual statements, investment tribunals frequently come to diametrically opposed conclusions which are not predetermined by the applicable law or the circumstances of the particular case. As a result, this practice has a negative influence on the existing system of settlement of investment disputes. The author seeks to evaluate the extent to which the reform options are capable of tackling the problem described, as well as whether proposals of additional directions of reform, namely the adoption of “soft law” instruments on the issues of burden and standards of proof as guiding principles, are capable of doing this.
JUS HOMINUM
CHILDREN AND DOMESTIC VIOLENCE: NOT ONLY VICTIMS, NOT ONLY CRIMINAL PROCEEDINGS
The prevalence of domestic violence, including “educational” violence, in the countries of Central and Eastern Europe and the Commonwealth of Independent States is extremely high. Although there is no official statistical information on the prevalence of domestic violence against children in Russia, some statistics indicate that the number of child victims is in the thousands. In Russia there has already been formed a model of family relations based on violence and of bringing up children through the use of violence. The use of violence by parents against their children is justified by the Russian Orthodox Church, governmental authorities (whose discourse has rapidly changed from protecting children to protecting “traditional family values”), and the Russian people. This inevitably affects not only the prevalence of violence but also the possibility of protecting and guaranteeing the rights of children who become victims or witnesses of violence. In the eyes of Russian society, a child is not the subject of rights but the object of care and protection. This conceptual context of “passivity” of the child underlies Russian legislation’s guarantees for the protection of child victims and witnesses of violence. International standards of treatment of underage victims and witnesses, however, consider a child to be the subject of rights and provide for the State’s obligation to ensure that he/she can effectively participate in the process. At the same time, States must ensure the right of the child to special protection and care, including the prevention of re-victimization. For these purposes, it is permissible to deviate from the obligation to provide an accused with the opportunity of personal interrogation of witnesses for the prosecution. The application of the rules establishing child protection measures should not be automatic, but based on a determination of the best interests of the child in each case of the application of a particular protective measure. Russian legislation as applied in practice demonstrates that the rights of the child are not adequately protected. While its provisions apply to children under 16, they are unclear, inexhaustible, and contradictory and leave a significant number of children unprotected. Imperfection of the legislation, however, is not the only reason for the prevalence of violations of the rights of the child by both investigative and judicial authorities. A second reason is the lack of understanding by decision makers of the specific aspects of protecting a child as a vulnerable subject in the context of domestic violence. Existing Russian jurisprudence in the field of civil litigation completes this picture and proves that domestic violence is not seen as a condemned behavior that requires intervention by the authorities.
JUS CRIMINALE
VISUALIZATION IN THE INTERNATIONAL CRIMINAL JUSTICE: FROM SREBRENICA ON
The article analyzes the concept of “international criminal justice as theater”, one which has recently become widespread in Western doctrine. The author presents arguments in its favor and dwells on the heuristic potential hidden in it. He concludes that the excessive spectacle inherent in modern international litigation is detrimental to the quality of the administration of justice and often discredits it. In addition, according to these cases’ judges themselves, the emerging trend of visualization of evidence distracts them from clarifying details of real importance for correct resolution of the case, thereby preventing the establishment, albeit formally, of the truth. This article introduces an ideal or typical construction of an image which is interpreted as the court’s and the proceedings’ participants’ representation of themselves and other actors. It is stated that although images are not and cannot be a determining factor in international criminal justice, they often influence the atmosphere in the courtroom and form the general tone adopted by the media when describing ongoing trials. Particular attention is paid to electronic evidence, primarily to that which is freely available on the Internet. The practice of international criminal justice bodies shows that evidence presented by the Office of the Prosecutor of a particular tribunal increasingly includes materials captured on mobile phone cameras by victims of the conflict themselves or by eyewitnesses. This, in turn, leads to the unique situation where there is so much relevant content from different sources that neither the prosecution nor the defense is able to analyze it in its entirety. It also has other downsides – first, information that exists in electronic form can be easily falsified, and, second, as a result of “information noise”, society often loses the ability to empathize.
JUS GENTIUM PRIVATUM
THE PRINCIPLE OF JURA NOVIT CURIA IN INTERNATIONAL COMMERCIAL ARBITRATION: A COMPARATIVE LAW PERSPECTIVE
The article deals with the question of the permissibility and limits of applying the principle of jura novit curia (“the court knows the law”) in international commercial arbitration to ascertain the content of the applicable substantive law. The relevance of this question is based on the existence of an array of approaches to this problem and on the scarcity of specific regulation at the international and national levels. The validity and enforceability of an arbitral award depend on how properly an arbitral tribunal exercises its discretionary powers. Analyzing different legal systems’ approaches may contribute to detection of the risks during an arbitration’s dispute process, award, or enforcement stages, on the one hand, and to the protection of the rights and legitimate interests of the disputing parties, on the other hand. By applying a comparative method, the authors examine the law and practice of several countries in the common and civil law traditions. With respect to the latter, the following conclusions are drawn. First, in the case law of Sweden and Switzerland arbitrators enjoy wide discretionary powers to ascertain the applicable law subject to the parties’ right to be heard and to discovery, while in France the principle of jura novit curia is applied in a highly restrictive manner. Second, there are no specific statutory provisions on this question. This statutory gap can be filled by procedural norms for ascertainment of the content of applicable foreign law in a State’s courts, as these norms have de facto impact on the arbitration practice. Common law countries have adopted special provisions that empower arbitrators to choose the approach unless it has been otherwise agreed by the parties. In some jurisdictions the limits on jura novit curia are notably broad. The law and practice of England and Wales and Singapore do not put constraints on it unless the award causes substantial injustice. Hong Kong courts hold that there are almost no restrictions if the parties have chosen an arbitrator who is qualified in the applicable law. The United States has adopted the civil law approach.
ACADEMIA
SCHOLAE
EXECUTION OF JUDGMENTS OF INTERNATIONAL HUMAN RIGHTS COURTS AFTER DENUNCIATION OF INTERNATIONAL TREATIES: IN SEARCH OF COMPROMISE
This article is devoted to the problems of execution of a State’s obligations under an international treaty after entry into force of that State’s denunciation of the treaty. The author considers the limits of an international court’s jurisdiction ratione temporis as well as possible options for the execution of international court judgments after the denunciation decision’s entry into force. The Inter-American Court of Human Rights proposed classifying by duration all the violations described in complaints filed against a former party to an international treaty. This approach was accepted by the European Court of Human Rights and used in its recent decision against the Russian Federation. Considering the problem of enforcement of the rulings of regional human rights courts, the author comes to the conclusion that the European system for protection of human rights and freedoms does not offer specific mechanisms for resolving the problem of boycott and non-enforcement of courts’ judgments by a respondent State. At the same time, a mechanism of collective guarantees is used by the Inter-American Court of Human Rights as the main instrument for enforcement as to former States Parties. The article examines the possibilities of overcoming the crisis in the dialogue between national and international courts by using this mechanism of collective guarantees. The author considers the Advisory Opinion of the Inter-American Court of Human Rights OC-26/20 on the human rights obligations of a State that has denounced the American Convention on Human Rights. This Advisory Opinion gives participants in the Convention the power to investigate the context and the formal conditions under which the denunciation decision was made at the national level as well as whether this decision followed constitutional procedures which received mixed assessments in the opinions of judges of the Inter-American Court of Human Rights, among others. The author also discusses options for preventing denunciation at an early stage, through procedures provided for by the Vienna Convention on the Law of Treaties.