Chester Brown

‘Reasonableness’ in the Law of the Sea: The Prompt Release of the Volga

The jurisdiction of the International Tribunal for the Law of the Sea to hear applications for the prompt release of vessels and crew was recently invoked by the Russian Federation against Australia in the Volga case. In determining whether the bonding arrangements set by Australia were ‘reasonable’ under Article 73(2) of UNCLOS, the Tribunal clarified several issues regarding prompt release applications, and most significantly, held that non-financial conditions and ‘good behaviour bonds’ were not permissible. In rendering its decision, the Tribunal adhered to the ‘guiding criterion’ of balancing the interests of the flag state and coastal state in determining the reasonableness of the bond. It is submitted that this test is inappropriate, and that this decision will create difficulties for coastal states seeking to control illegal fishing.

The Power of ICSID Tribunals to Dismiss Proceedings Summarily: An Analysis of Rule 41(5) of the ICSID Arbitration Rules

Rule 41(5) of the ICSID Arbitration Rules essentially provides that an ICSID tribunal may dismiss a proceeding summarily if the respondent files an objection within 30 days of the consti- tution of the tribunal that the claim is “manifestly without legal merit”. In the five years since the introduction of the Rule in April 2006, four ICSID tribunals have considered the provision, with two decisions being handed down in December 2010. In this article, the authors describe the cases decided by these tribunals, and examine the way in which they have interpreted and applied Rule 41(5). The authors’ analysis highlights the large measure of consistency in the way that ICSID tribunals are handling objections under this provision, and sets out a useful and timely guide to counsel and arbitrators on the use of this procedure.

ACCESS TO INTERNATIONAL JUSTICE IN THE LEGALITY OF USE OF FORCE CASES

MUCH international litigation has been spawned by the Balkan crisis, and the latest instalment comes in the form of eight judgments rendered by the International Court of Justice (‘‘ICJ’’) on 15 December 2004 in the Legality of Use of Force cases. In these judgments, the ICJ upheld the preliminary objections of the respondent States and ruled that it had no jurisdiction to entertain Serbia and Montenegro’s claims. The Federal Republic of Yugoslavia (‘‘FRY’’), as it was then known, instituted separate proceedings on 29 April 1999 against each of Belgium, Canada, France, Germany, Italy, the Netherlands, Portugal, Spain, the United Kingdom and the United States. In its application, it argued that in the course of the NATO intervention in Kosovo in the Spring of 1999, the respondents had violated, inter alia, the prohibition on the threat or use of force, the obligation of non-intervention, and the obligation to protect the civilian population and civilian objects in wartime (see, e.g., Serbia and Montenegro v. Belgium, para. 1). On 2 June 1999, the ICJ rejected the FRY’s requests for the indication of provisional measures, and also decided to remove two of the applications from the list, finding that it ‘‘manifestly lacked jurisdiction’’ in those cases (Legality of Use of Force (Yugoslavia v. Spain) [1999] I.C.J. Rep. 761, 773–4; Legality of Use of Force (Yugoslavia v. United States) [1999] I.C.J. Rep. 916, 925–6). The eight other cases, however, remained on foot. At the time it commenced proceedings, the FRY—claiming to be the successor State to the Socialist Federal Republic of

Interpretation and Application of the New York Convention in Australia

Although the New York Convention’s application has been reasonably successful and positive, the Australian jurisdiction offers an example of how the interpretation and the application of the Convention can be disrupted by even minor modifications in the transcription of the Convention into domestic legislation. This chapter is also remarkable for its thorough and extended discussion of cases discussing complex questions of interpretation, as well as for several examples of enforcement decisions where partial enforcement is privileged over a complete refusal of recognition and enforcement in order, to pursue the pro-enforcement spirit of the Convention.

Regional Economic Integration in Southeast Asia

The nations of Southeast Asia are characterised by their diversity. The diversity is not only reflected in the populations, languages, cultures and politics of the region, but also in the economics. For example, the Gross Domestic Product (“GDP”) per capita of one of the richest nations in the region, Singapore, is approximately 100 times that of one of the poorest nations, Myanmar. There is also a significant development gap between the Member States of the Association of Southeast Asian Nations (“ASEAN”). This is clearly reflected in the fact that two members of the 10-member group—namely, Singapore and Malaysia—account for more than half of all intra-ASEAN trade. These are examples of regional characteristics that have influenced the policies adopted to promote economic liberalisation and integration in Southeast Asia. Certain external factors have also had an influence. Economic liberalisation has been precipitated in the ASEAN region by the general trend towards regional trade liberalisation, particularly through the establishment of free trade areas; the 1997 Asian financial crisis; the economic rise of China and India in the past decade; and the 2008 global economic crisis.

International Tribunal for the Law of the Sea

In a letter dated 13 December 2009 addressed to the President of the Tribunal, the Minister of Foreign Affairs of the People’s Republic of Bangladesh referred to the declaration issued by the Union of Myanmar on 4 November 2009 by which the Union of Myanmar “accepts the jurisdiction of the International Tribunal for the Law of the Sea for the settlement of dispute between the Union of Myanmar and the People’s Republic of Bangladesh relating to the delimitation of maritime boundary between the two countries in the Bay of Bengal” and transmitted to the Tribunal a declaration by Bangladesh dated 12 December 2009 by which Bangladesh “accepts the jurisdiction of the International Tribunal for the Law of the Sea for the settlement of the dispute between the People’s Republic of Bangladesh and the Union of Myanmar relating to the delimitation of their maritime boundary in the Bay of Bengal”.