Dispute Settlement Report - Pil

Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013
LAW 226 - Public International Law

COLLEGE OF LAW
What is a dispute?
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a dispute exists when one State claims that another State should behave in a certain manner and that claim is rejected by the latter. (KELSEN)
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A dispute is a contest of some specificity, the resolution of which has some practical effect on the relations between the parties. (MALONE)
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Dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons.
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An international dispute, in others words, is an actual disagreement between states regarding the conduct to be taken by one of them for the protection or vindication of the interests of the other.
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JURISPRUDENCE
The Maurommatis Palestine Concessions, Greece vs. Great Britain, August 30, 1924, PCIJ, Ser. B., No. 3, 1924
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Would a suit brought by a State in behalf of one of its nationals against another State constitute an international legal dispute between the two States?
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This question was answered in the affirmative by the Permanent Court of International Justice in the Mavrommatis Palestine Concessions Case
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In the said case, Greece is asserting its own rights by claiming from the Government of Great Britain an indemnity on the ground that M. Mavrommatis, one of its subjects,
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has been treated by the Palestine or British authorities in a manner incompatible with certain international obligations which they were bound to observe.
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In the case of Mavrommatis concessions, it is true that the dispute was at first between a private person and a State i.e., between M. Mavrommatis and Great Britain.
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Subsequently, the Greek Government took up the case. The dispute then entered upon a new phase; it entered the domain of International Law, and became a dispute between two States. LAW 226 - Public International Law
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COLLEGE OF LAW
The Permanent
Court of International Justice ruled that,

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Once a State has taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the latter the State is sole claimant.
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The fact that Great Britain and Greece are the opposing Parties to the dispute arising out of the Mavrommatis concessions is sufficient to make it a dispute between two States.
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Nota bene:
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Where the disagreement has not yet ripened into a fullblown conflict or the issues have not yet been sufficiently formulated and defined, there is what is known as a situation. LAW 226 - Public International Law
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COLLEGE OF LAW
therefore, situation is, the initial stage of a dispute.
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A dispute is LEGAL if it involves justiciable rights based on law or fact susceptible of adjudication by a judicial or arbitral tribunal.
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An example is a conflict on the interpretation of a treaty or the ascertainment of the boundaries of adjacent states.
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A dispute is POLITICAL if it cannot be decided by legal processes on the basis of the substantive rules of international law. Why?
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Because the differences of the parties spring from animosities in their mutual attitudes rather than from an antagonism of legal rights.
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On the claim of the Philippines on the Spratleys. 1. Is there a dispute or only a situation? 2. Is it legal or political?
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How can a dispute be settled?

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Disputes are required to be settled, conformably to one of the basic principles of the United Nations, by peaceful means in such manner that international peace and security, and justice, are not endangered. LAW 226 - Public International Law
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COLLEGE OF LAW
What is the role of the United Nations in the settlement of international disputes?
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COLLEGE OF LAW
United Nations Charter Article 1 (1) Article 2 (3) Article 33 (1) answered the question!
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Article 1 (1)
To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace,
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Article 1 (1)
and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
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Article 2 (3)
All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
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Article 33 (1)
The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by
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Article 33 (1)
negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. (will be discussed later)
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May a member of the United Nations bring a dispute to the attention of the General Assembly?
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U.N. Charter, Art. 35 [1] Any member of the United Nations may bring any dispute, or any situation of the nature referred to in Article 34, to the attention of Security Council or of General Assembly .
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U.N. Charter, Art. 34
The Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.
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COLLEGE OF LAW
But, what happened to The invasion of Iraq by the combined forces of the United States, Britain and Australia ?
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The invasion provoked world-wide protest led by France, Russia and China, all members of the Big Five. They contended that the attack was done without authorization from the Security Council which wanted to give the UN inspection team more time to look for the weapons of mass destruction that US President George W. Bush insisted the Iraqi government was concealing.
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Unable to get UN permission, the United States nevertheless began bombarding Iraq, invoking an earlier inconclusive resolution of the Security Council adopted after the terrorist attacks in his country on September 11, 2002. The consensus in legal quarters dismissed such resolution and held that the United States needed another resolution categorically calling for armed sanction against Iraq.
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The Iraqi crisis has raised questions about the effectiveness of the Security Council in maintaining international peace and security and the practical value of the rule requiring the unanimity of the Big Five in deciding non-procedural questions.
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The threatened veto by France of the US proposal for the immediate invasion of Iraq caused the United States to go it alone and may have demonstrated the impotence of the United Nations in enforcing the purposes and principles defined in its Charter.
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May a state which is not member of the United Nations bring a dispute to the attention of the Security Council or of the General Assembly?
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A non-member state may bring to the attention of the Security Council or the General Assembly any dispute provided that: 1. It is a party to the dispute; and 2. It accepts in advance, for the purposes of the dispute, the obligations of pacific settlement provided in the Charter. LAW 226 - Public International Law
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What are the powers of the General Assembly with respect to the dispute that are brought to its attention?
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The General Assembly with respect to the disputes that it hears are limited to establishing fact-finding missions and making recommendations,
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but although the actions of the General Assembly may have significant political influences, state are under no legal obligation to cooperate with the fact-finding missions or to follow recommendations.
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What are the powers of the Security Council with respect to the disputes that are brought to its attention?
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Under Art. 34, the Security Council may investigate any dispute in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security and if so,
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under Art. 37, its shall decide whether to take appropriate action or to recommend such terms of settlement as it may consider appropriate.
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NON JUDICIAL METHODS
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A. NEGOTIATION, (generally the first step) the discussion undertaken by the parties themselves of their respective claims and counterclaims with a view to their just and orderly adjustment.
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Where the talks prosper and agreement is reached, it is usually formalized in a treaty or, more directly, effected through the rectification of the injury cause to the claimant state.
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B. INQUIRY - is an investigation of the points in question, on the theory that their elucidation will contribute to the solution of the differences between the parties.
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The U.N. is empowered to call the parties concerned to explain their position on a dispute and may attempt to narrow their differences, reconcile their opposing views and if necessary recommend a just and fair solution.
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COLLEGE OF LAW
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In the Dogger Bank Case, Russian vessels fired in a fog on the English fishing fleet off Dogger Bank during the Russo-Japanese War and caused the death of two fishermen, injuries to others and considerable destruction of property. LAW 226 - Public International Law
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COLLEGE OF LAW
Russia maintained that the firing was due to the approach of Japanese torpedo boats, and a commission of inquiry was created to verify this claim. The finding was that there were no torpedo boats present at the time of the incident and, as a result, Russia agreed to pay 65,000 to Great Britain.
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COLLEGE OF LAW
The US and Chile in 1992-93 set up an Enquiry Commission to determine the amount of damages to be paid to the US by Chile for allegedly killing two persons in Washington by Chilean intelligence officers and the dispute was settled
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C. GOOD OFFICES - is method by which a third party attempts to bring the disputing states together in order to enable them to discuss the issues in contention and arrive at an agreement.
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COLLEGE OF LAW
This is usually employed when the parties are no longer on speaking terms, that is, when they have severed diplomatic relations or have actually commenced hostilities.
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This is referred to as quiet diplomacy since the process often involves entrusting the dispute to personalities with special qualification on whom both parties agree. This might involve, for example, heads of State or the Secretary-General of the United Nations, or their designees
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The Russo-Japanese War, for example, was terminated through the good offices of President Theodore Roosevelt of the United States who succeeded in bringing the parties together to the conference table for the conclusion of a negotiated peace.
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D. MEDIATION like good offices, mediation is an adjunct of negotiation, but with the mediator as an active participant, authorized, and even expected, to advance his own proposals and to interpret, as well as to transmit, each partys proposals to each other.
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The third party does not merely provide the opportunity for the antagonists to negotiate but also actively participates in their discussions in order to reconcile their conflicting claims and appease their feelings of resentment.
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In 1978, U.S. President Jimmy Carter mediated between Egypt and Israel and achieved the Camp David Agreement in March 1979. Under the Agreement Egypt recognized diplomatically Israel and in return Israel withdrew its troops from Sinai Peninsula, occupied by Israel in the 1967 war
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E. CONCILIATION a method that combines the characteristics of both enquiry and mediation. While mediation is ordinarily carried out by one person, conciliation is usually conducted by an organization
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COLLEGE OF LAW
(ASEAN or NATO) or by a group of States
(Malaysia, Bangladesh and Pakistan were given the task by OIC to broker peace between Iran and Iraq war during the 80s)
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QUASI-JUDICIAL METHODS/ ARBITRATION

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ARBITRATION - is the solution of a dispute by an impartial third party, usually a tribunal created by the parties themselves under a charter known as the compromise,
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which will provide for, among others, the composition of the body and the manner of the selection of its members, its rules of proceedings and sometimes even the law to be applied by it,
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and the issues of fact or law to be resolved. Unlike in conciliation, the proceedings are essentially judicial and the awards is, by previous agreement, binding on the parties to the dispute.
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This method is similar to judicial settlement not only in the nature of the proceedings and the binding character of the decisions but also in the fact that the disputes submitted for adjudication are legal rather than political.
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They differ in the following points:

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1.
The judicial tribunal is, generally speaking, a preexisting and permanent body whereas the arbitral tribunal in an ad hoc body created and filled by the parties to the dispute themselves.
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2.
Jurisdiction in judicial settlement is usually compulsory whereas submission to arbitration is voluntary.
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3.
The law applied by the tribunal in judicial settlement is independent of the will of the parties but may be limited by them in arbitration proceedings.
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judicial settlement Panpacific University North Philippines

COLLEGE OF LAW
arbitration created and filled by the parties to the dispute themselves Voluntary submission
TRIBUNAL
pre-existing and permanent body
JURISDICTION
compulsory LAW APPLICABLE
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independent of the will of may be limited by the the parties parties LAW 226 - Public International Law
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COLLEGE OF LAW
ADVANTAGES of arbitration as a method of settlement of disputes

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1.
It is more conclusive than the other forms of non-judicial dispute settlement because the decisions of the arbitral panels are binding upon the parties;
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2.
The disputing parties retain greater control in the arbitration process because they appoint the arbitrators;
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3.
4.
The parties may designate the procedures and the laws to be applied; Arbitration is less formal and less contentious than adjudication; and
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5.
Both the arbitration proceedings and decisions can be kept confidential, a great advantage in dispute regarding sensitive matters.
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DISADVANTAGES of arbitration as a method of settlement of disputes

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1.
If the parties do not specify procedures, arbitration may be very cumbersome and timeconsuming process;
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2.
Arbitration panels do not have authority of courts to conduct discovery or subpoena witnesses; and
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3.
The parties themselves pay for the entire cost of the arbitration.
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Valid defenses to the enforcement of an arbitral award

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As a rule, arbitral awards are binding on the parties. However, Article V of the United Nations Conventions of the Recognition and Enforcement of Foreign Arbitral Awards (The New York Convention), adopted in June 10, 1958, provides the following defenses to the enforcement of an arbitral award:
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a)
The parties to the agreement were, under the law applicable to them, under some incapacity;
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b)
The agreement is not valid under the law agreed upon by parties, or, failing any indication thereon, under the law of the country where the award was made;
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c)
The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present this case;
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d)
The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matter beyond the scope of the submission to arbitration;
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e)
The composition of the arbitral authority or the arbitral procedure, was not in accordance with the agreement of the parties;
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f)
The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which that award was made;
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g)
The subject matter of the difference is not capable of settlement by arbitration under the law of that country in which the award was made;
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h)
The enforcement of the award would be contrary to the public policy of that country.
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Let us walk you through a case where the Philippines was involved.
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Case:
Fraport v. Philippines
Year the case was initiated:
2003
Year the award was rendered:
2007
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COLLEGE OF LAW
Country involved:
Philippines
Home country of the investor:
Germany
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Parties to the dispute:
Fraport AG Frankfurt Airport Services Worldwide v. Republic of the Philippines (ICSID Case No. ARB/03/25)
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Type of investment:
Construction of NAIA terminal 3

Nature of dispute / claim:
Claim arising out of annulment of Contract

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Legal instrument:
Agreement between the Federal Republic of Germany and the Republic of the Philippines for the Promotion and the Reciprocal Protection of Investments
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Rules / Venues:
International Center for Settlement of Investment Dispute (ICSID)

Amount sought by investor:
approx US$ 450 million

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Amount awarded / status of dispute:
Tribunal lacks jurisdiction

Arbitrators:
L. Yves Fortier (Chair); Canadian Bernardo M. Cremades; Spanish W. Michael Reisman, U.S.
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Decisions rendered: Award issued on 16 August 2007
Status: Awarded in favor of the state (Philippines)

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On 17 September 2003, the Claimant filed its request for arbitration with the International Centre for Settlement of Investment Disputes against the Respondent for the resolution of divergencies having arisen amongst the parties to this arbitration.
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The Request was submitted in accordance with the ICSID arbitration provisions contained in the Treaty, in particular paragraph 2 of Article 9 of the BIT entitled "Settlement of Disputes between a Contracting State and an Investor of another Contracting State":
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"If such divergencies cannot be settled according to the provisions of paragraph (1) of this Article within six months from the date of request for settlement, the investor concerned may submit the dispute to:
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[] (b) the International Centre for the Settlement of Investment Disputes through conciliation or arbitration."
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For the reasons set forth herein and pursuant to Rules 41(5) and 47(1)(i) and (j) of the Arbitration Rules and Article 61(2) of the Convention, a majority of the Arbitral Tribunal decides:
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1.
To accept the objection to the jurisdiction of the International Centre for Settlement of Investment Disputes raised by the Republic of the Philippines;
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2.
To declare that the Centre does not have jurisdiction to hear this dispute and that this Arbitral Tribunal is not competent to resolve it;
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3.
To dismiss the claim of Fraport AG Frankfurt Airport Services Worldwide; and
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4.
To order that each party shall bear in full its own legal costs and that the payment of the fees and expenses of the members of the Arbitral Tribunal and of the administrative fees for the use of the Centre shall be paid in equal share by each party.
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An investor that contravenes the law of the Host State of the investment must expect to suffer the consequences prescribed by law.
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The principle of legality in investment arbitration, like the principles of pacta sunt servanda and good faith, applies equally to both Parties.
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Indeed, the very purpose of investment arbitration is to determine the legality of the conduct of the Host State and the investor under the applicable law.
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JUDICIAL METHODS/ THE INTERNATIONAL COURTS
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Judicial settlement is a decision by a Court. In the U.N. system, the International Court of Justice is an integral part of the U.N. and the Court, with seat at The Hague (the Netherlands), decides inter-states disputes.
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States refer to the Court for decision.
MUST AGREE to
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JURISDICTION of the International Court of Justice

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The jurisdiction of the Court comprises all case which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. (ICJ Statute, Art.36[1])
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LIMITATIONS on the jurisdiction of the International Court of Justice (ICJ).

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1.
2.
Only states may be parties in contentious cases before the Court (ICJ Statute, Art. 34); and The consent of the states is needed for the court to acquire jurisdiction (Id., Art. 36)
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Art. 36
The court is competent to entertain a dispute only if the states concerned have accepted its jurisdiction in one or more of the following ways:
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1.
By the conclusion between them of a special agreement (compromise) to submit the dispute to the Court
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2.
By virtue of a jurisdiction clause, i.e., typically, when they are parties to a treaty containing a provision whereby in the event of a disagreement over its interpretation or application, one of them may refer the dispute to the Court;
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3.
Through the reciprocal effect of declarations made by them under the Statute whereby each has accepted the jurisdiction of the Court as compulsory in the event of a dispute with another State having made a similar declaration.
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Other International Court of Justice

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1.
European Court of Justice (ECJ), the Supreme Court of the European Union
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Functions : a) to examine the legality of Community acts and to ensure that Community law is interpreted and applied uniformly. b) resolves disputes between Community institutions or between those institutions and the Member States (or even between Member States themselves).
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2.
BENELUX Court of Justice
Belgium, Netherlands and Luxembourg
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Function: 1. promote the uniform interpretation of common legal rules for which it has become competent (e.g., concerning trademarks, penalties, motor vehicle insurance, movement of persons, and protection of birds).
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3.
EFTA Court of Justice

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the Court of the EFTA States parties to the European Area Agreement (EEA), disputes between the contracting Parties, between the EFTA Surveillance Authority and contracting Parties,
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and between the EFTA Surveillance Authority and the addressee of a decision of the authority or a person directly and individually concerned by such a decision.
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4.
EUROPEAN COURT OF HUMAN RIGHTS

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also known as the Strasbourg Court was established in November 1998 pursuant to the entry into force of Protocol No. 11 to the European Convention for the Protection of Human Rights (1950) establishing a single court sitting fulltime and replacing the European Commission of Human Rights (1954) and the European Court of Human Rights (1959). It has its seat in Strasbourg, France.
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The Courts primary function is to ensure compliance by the High Contracting Parties with their commitments arising from the European Convention for the Protection of Human Rights.
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The Court hears and decides complaints of human rights violations allegedly committed by States Parties, and brought to the Court either by other States Parties or by individuals subject to the jurisdiction of a State Party.
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Thank You!!!
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Panpacific University North Philippines

LAW 226 - Public International Law

Panpacific University North Philippines

LAW 226 - Public International Law

Panpacific University North Philippines

LAW 226 - Public International Law

Panpacific University North Philippines

Panpacific University North Philippines

Panpacific University North Philippines

LAW 226 - Public International Law

Panpacific University North Philippines

LAW 226 - Public International Law

Panpacific University North Philippines

LAW 226 - Public International Law

Panpacific University North Philippines

LAW 226 - Public International Law

Panpacific University North Philippines

LAW 226 - Public International Law

Panpacific University North Philippines

Panpacific University North Philippines

LAW 226 - Public International Law

Panpacific University North Philippines

Panpacific University North Philippines

Court of International Justice ruled that,

Panpacific University North Philippines

Panpacific University North Philippines

LAW 226 - Public International Law

Panpacific University North Philippines

Panpacific University North Philippines

therefore, situation is, the initial stage of a dispute.

LAW 226 - Public International Law

Panpacific University North Philippines

Panpacific University North Philippines

LAW 226 - Public International Law

Panpacific University North Philippines

LAW 226 - Public International Law

Panpacific University North Philippines

LAW 226 - Public International Law

Panpacific University North Philippines

Panpacific University North Philippines

How can a dispute be settled?

LAW 226 - Public International Law

Panpacific University North Philippines

Panpacific University North Philippines

LAW 226 - Public International Law

Panpacific University North Philippines

LAW 226 - Public International Law

Panpacific University North Philippines

LAW 226 - Public International Law

Panpacific University North Philippines

LAW 226 - Public International Law

Panpacific University North Philippines

LAW 226 - Public International Law

Panpacific University North Philippines

LAW 226 - Public International Law

Panpacific University North Philippines

LAW 226 - Public International Law

Panpacific University North Philippines

LAW 226 - Public International Law

Panpacific University North Philippines

LAW 226 - Public International Law

Panpacific University North Philippines