August Reinisch

Developing Human Rights and Humanitarian Law Accountability of the Security Council for the Imposition of Economic Sanctions

excellence not only for its own sake, but for the sake of illumination, in the belief that in knowledge and unders tanding lies the path to a bet ter world. He will be r emembered as the nicest of persons, whose wisdom a n d gentleness touched all who were privileged to know and work with him. I remember Jacobson for his quiet determinat ion and uncanny ability to make complex situations easier to manage. As he embarked on what tu rned out to be his last journey in August ( returning home from a workshop cosponsored by the ASIL and the Academic Council on the United Nations System), we stood for a moment in the glorious sunshine outside the depar ture terminal of Windhoek Airport in Namibia. He reflected on what an interesting place this new African country must be and what a pity it was that he did not have more time to explore it. Many others will have personal remembrances of Haroldjacobson. We mourn his loss, but we are inspired by his life and work to foster collaboration, to cont inue exploration, and to pursue a passion for the discipline, honesty, and knowledge that contr ibute to the advancement of humankind . As we face the questions presented by the attacks of September 11, 2001, on New York and Washington, we will need his kind of gentle wisdom.

Transparency versus Confidentiality in International Investment Arbitration – The Biwater Gauff Compromise

Recent years have seen a trend towards increasing transparency in international investment arbitration. This trend has been reflected in arbitral practice and in the amendments to the ICSID Arbitration Rules in 2006, which now expressly allow for participation of non-disputing parties as amicus curiae. Still more problematic, however, is the publication of arbitral documents, which has recently been controversial in Biwater Gauff v. Tanzania. This paper will discuss the core provisions on the publication of documents of the UNCITRAL Arbitration Rules, the ICSID Arbitration Rules and NAFTA Chapter 11. It will analyze the reasoning and the findings of the Biwater Tribunal in this regard as well as the pertinent practice of previous investment tribunals. Important policy issues underlying the decision of the Biwater Tribunal will also be analyzed.

In the Shadow of Waite and Kennedy – The Jurisdictional Immunity of International Organizations, the Individual's Right of Access to the Courts and Administrative Tribunals as Alternative Means of Dispute Settlement

I. The jurisdictional immunity of international organizations ...................................................................................2 II. The right of access to court ...................................................................................................................................6 A. Immunity instruments .......................................................................................................................................9 B. The obligation to provide for adequate alternative dispute-settlement mechanisms ......................................10 C. Adequate alternative dispute-settlement mechanisms as a precondition for immunity – Subsidiary jurisdiction of national courts ..............................................................................................................................12 1. Fundamental rights review of acts of international organizations ............................................................. 13 2. Immunity of international organizations case law ...................................................................................... 15 3. State immunity case law ..............................................................................................................................20 4. Other conflict solution approaches ..............................................................................................................27 III. Implications of the alternative remedies requirement ...................................................................................... 30 A. Effectiveness as a criteria for adequate alternative means ............................................................................ 31 B. Assessment of the protection provided by a forum as an alternative means ................................................. 37 1. Independence of administrative tribunal judges .........................................................................................39 2. Fundamental principles of procedure ......................................................................................................... 41 a) Access to the ILOAT for potential claimants ..........................................................................................42 b) The lack of oral proceedings ..................................................................................................................44 c) The actual jurisprudence of the ILOAT .................................................................................................. 44 IV. Conclusion ........................................................................................................................................................ 45

International organizations before national courts

Part I Part II. V. Policy issues - pro and contra having national courts decide disputes involving international organizations A. Rationales for judicial abstention.

International investment law

Chapter 1: General Introduction to International Investment Law Chapter 2: The Law Relating to Aliens, the International Minimum Standard and State Responsibility Chapter 3: State Contracts and the Relevance of Investment Contract Arbitration Chapter 4: International Investment Agreements - History, Approaches, Schools The Evolution of the Regime of International Investment Agreements: History,Economics and Politics Chapter 5: Two Worlds, but Not Apart: International Investment Law and General International Law Chapter 6: The Scope of Application of International Investment Agreements Chapter 7: The Liberalisation of the International Movement of Capital and of International Investments Chapter 8: Standards of Protection Chapter 9: Restitution, Damages and Compensation Chapter 10: Obligations of Investors Chapter 11: Dispute Resolution Chapter 12: Political Risk Insurance and Financing of Foreign Direct Investment Chapter 13: Contemporary Issues and Outlook Chapter 14: The Future of International Investment Law

“Putting the Pieces Together … an EU Model BIT?”

Although the eu Commission as negotiation leader in the field of external trade matters which, after Lisbon, also include investment will not issue a Model Investment Treaty, a number of its statements together with reactions by the Council and the Parliament allow the observer to draw conclusions as to the likely content of such future agreements. In addition, those trade agreements with investment chapters which are already close to finalization, like the Canada-eu Comprehensive Economic and Trade Agreement (ceta), provide telling insights concerning the main features of an eu agreement on investment protection.This article provides a general overview of the expected content of eu treaties in the field of investment, comprising scope of protection, substantive standards, and dispute settlement. It concludes that future eu investment agreements are likely to contain the traditional short eu bit standards to which a number of specifications inspired by North-American practice will be added.

The privileges and immunities of international organizations in domestic courts

Transnational judicial conversations on the personality, privileges and immunities of international organizations : an Introduction / August Reinisch -- Argentina / Raul E Venuesa -- Austria / Gregor Novak and August Reinisch -- Belgium / Cedric Ryngaert -- Canada / Phillip M Saunders -- France / Genevieve Bastid Burdeau -- Germany / Bardo Fassbender -- Greece / Maria Gavouneli --India / Mahendra Pal Singh --Italy / Riccardo Pavoni -- Japan / Toshiya Ueki -- The Netherlands / Rosanne van Alebeek and Andre Nollkaemper -- The Philippines / Herminio Harry L Roque, Jr -- The Russian Federation / Sergei Yu Marochkin -- Switzerland / Thore Neumann and Anne Peters -- United Kingdom / Dan Sarooshi and Antonios Tzanakopoulos -- United States / Charles H. Brower, II -- The personality, privileges, and immunities of international organizations before national courts : room for dialogue / August Reinisch and Ralph R A Janik.

Necessity in Investment Arbitration

A number of investment cases in the aftermath of the Argentine economic crisis 2001/2002 have addressed important issues of state of necessity. The tribunals affirmed that the codification of this defence in the 2001 ILC Articles on State Responsibility largely reflects customary international law and they rejected the argument that the highly complex nature of necessity characterized it as a non-justiciable political question. ICSID and other tribunals have also concurred on some crucial aspects of the necessity defence, like the potential qualification of economic emergencies as necessity situations or the fact that necessity can be invoked only in extreme cases. Nevertheless, the application of these principles to the actual situation in Argentina led to divergent and partly conflicting outcomes. After assessing the relationship between derogation clauses contained in many investment treaties and state of necessity this contribution focuses on specific aspects which entitle a State to invoke necessity as a ground for not fulfilling its obligations. It pleads for a proportionality approach in determining whether the actual measures adopted should be regarded as the only means to safeguard State interests. Similarly, it supports a nuanced assessment concerning the contribution element by requiring that it be substantial.

Revisiting Res Judicata and Lis Pendens in Investor-State Arbitration

Questions concerning res judicata and lis pendens in investment arbitration proceedings remain a subject of academic discussions, particularly with regard to the application of the “triple identity test”. The necessity of a more coherent approach to the matter is a pressing issue amidst the criticisms of the investor-state arbitration system as a whole. Finding viable solutions to prevent multiple/parallel proceedings and contradicting decisions is crucial in further strengthening the rule of law in investment arbitration.

To What Extent Can and Should National Courts Fill the Accountability Gap

International organizations are generally recognised as requiring privileges and immunities, in particular immunity from the jurisdiction of domestic courts, in order to remain independent and unimpeded in the fulfilment of their functions and duties. However, this approach often neglects the effect of a grant of immunity to international organizations, in that potential claimants may be deprived of their ability to raise claims against international organizations before the ‘natural forum’ of domestic courts. Recently, both legal doctrine and practice have devoted particular attention to the potential accountability gap created by sweeping jurisdictional immunities of international organizations. This has even led to calls for filling the gap by denying immunity. This paper will outline the development of the increased awareness of accountability gaps and assess the reactions so far. Finally, it will turn to an evaluation of the suitability of national courts as institutions for securing the accountability of international organizations.