Andreas von Staden

Towards Greater Doctrinal Clarity in Investor-State Arbitration: The CMS, Sempra, and Enron Annulment Decisions

Several arbitral awards rendered against Argentina under bilateral investment treaties and related to the countrys devastating economic crisis in 2001-2002 restrictively interpreted Argentinas ability to rely on either the exception clause in the US-Argentina investment treaty or the necessity defence under customary international law. In three cases (CMS, Sempra, and Enron), the tribunals, by simply equating the requirements under the treaty exception with those of the customary necessity defence, all but ignored established canons of treaty interpretation and engaged in doctrinally muddled analyses of the relationship between treaty law and customary law. All three awards have since been subject to annulment decisions by ICSID ad hoc committees. While the decisions disagree on what constitutes an appropriate reason for annulment under the manifest excess of powers ground, they offer doctrinally much improved approaches to the interpretation and application of both treaty exceptions and the necessity defence. Identifying the proper dividing line between permissible annulment review and impermissible appellate review in such contexts has been, and will remain, contentious, but the Sempra and Enron committees offer reasonable assessments of when an error of law becomes so grave as to result in actual failure to apply the proper law.

Subsidiarity, exhaustion of domestic remedies, and the margin of appreciation in the human rights jurisprudence of African sub-regional courts

As an organising principle within multi-level governance systems, subsidiarity stipulates that decisions should be taken at the lower of any two levels of politico-legal organisation, unless compelling reasons argue in favour of moving decision-making to the higher level. In the judicial field, the principle has found expression, procedurally, in the exhaustion of domestic remedies rule and, substantively, in the margin of appreciation and similar deference-granting doctrines. These judicial manifestations of the subsidiarity principle should particularly likely to appear in the context of courts exercising jurisdiction over individual human rights complaints. This article investigates the extent to which three sub-regional courts in Africa that shortly after their creation began to foray into the human rights domain – the ECOWAS Community Court of Justice, the East African Court of Justice, and the Tribunal of the Southern African Development Community – have recognised subsidiarity as a guiding principle for the exercise of their human rights jurisdiction. Contrary to expectations, neither the exhaustion of domestic remedies rule nor margin-of-appreciation-type doctrines have so far played any meaningful role in the human rights jurisprudence of the three sub-regional courts.As an organising principle within multi-level governance systems, subsidiarity stipulates that decisions should be taken at the lower of any two levels of politico-legal organisation, unless compelling reasons argue in favour of moving decision-making to the higher level. In the judicial field, the principle has found expression, procedurally, in the exhaustion of domestic remedies rule and, substantively, in the margin of appreciation and similar deference-granting doctrines. These judicial manifestations of the subsidiarity principle should particularly likely to appear in the context of courts exercising jurisdiction over individual human rights complaints. This article investigates the extent to which three sub-regional courts in Africa that shortly after their creation began to foray into the human rights domain – the ECOWAS Community Court of Justice, the East African Court of Justice, and the Tribunal of the Southern African Development Community – have recognised subsidiarity as a guiding principl...