International Law In Brief
January 1-5, 2001
Developments in international law, prepared by the
Attorney-Editors of International Legal Materials
The American Society of International Law
- Treaties, Agreements and Related Documents
- Judicial and Other Decisions
- ICSID: American Manufacturing & Trading, Inc. v. Democratic Republic of Congo (first revision proceeding registered by ICSID)
- ICSID: Lanco International Inc. v. Argentina (Preliminary Decision on Jurisdiction of the Arbitral Tribunal) (grantee shareholder's right to bring claim under bilateral treaty)
- WTO Appellate Body: United States -- Definitive Safeguard Measures on Imports of Wheat Gluten from the European Communities (scope of competent authorities' review under Agreement on Safeguards)
- Briefly Noted
U.N. General Assembly: U.N. Convention against Transnational Organized Crime; Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children; and Protocol against the Smuggling of Migrants by Land, Sea and Air (November 15, 2000)
On November 15, 2000 The U.N. General Assembly adopted the U.N. Convention against Transnational Organized Crime ("Convention") and two supplementary protocols in order to promote cooperation in more effectively preventing and combatting transnational organized crime. Art. 1.
The Convention defines an organized criminal group as a "structured group of three or more persons" existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with the Convention ("Convention offences"). Art. 2. Under the Convention, a "serious crime" consists of conduct constituting an offence punishable by either a maximum deprivation of liberty of at least four years, or a more serious penalty. Id.
The Convention applies to the prevention, investigation and prosecution of transnational offences by organized crime groups, including: 1) participation in an organized criminal group; 2) laundering of criminal proceeds; 3) corruption; 4) obstruction of justice; and 5) "serious crime" as defined under the Convention. Art. 3. An offence is transnational under the Convention if committed: 1) in more than one state; 2) in one state but with a substantial part of its preparation, planning, direction or control taking place in another state; 3) in one state but involving an organized criminal group that engages in criminal activities in more than one state; or 4) in one state, but having "substantial effects" in another state. Id.
The Convention requires each State Party to adopt measures as necessary to establish jurisdiction over the offences listed under the Convention. Art. 15(1). The Convention does not, however, permit a State to exercise jurisdiction in another state and there perform functions reserved exclusively for the authorities of that state under its domestic law. Art. 4.
States Parties that do not make extradition conditional upon the existence of a treaty shall recognize Convention offenses as extraditable offenses between themselves. Art. 16(6). All States Parties shall: 1) endeavor to expedite extradition procedures; and 2) simplify evidentiary requirements relating thereto in regard to inter alia Convention offenses. Art. 16(8). States Parties shall also afford the "widest measure" of mutual legal assistance in investigations, prosecutions and judicial proceedings relating to Convention offences. Art. 18(1). States Parties shall not decline to render mutual legal assistance on the basis of bank secrecy, but may do so when, inter alia, there is an absence of dual criminality. Art. 18(8)-(9), (21).
State Parties shall consider the possibility of transferring Convention offence proceedings to one another in the interests of the proper administration of justice, and particularly for the concentration of prosecutions when several jurisdictions are involved. Art. 21. States Parties shall also establish appropriate procedures for providing victims of Convention offences with access to compensation and restitution. Art. 25(2). States Parties shall, moreover, endeavor to promote the reintegration into society of persons convicted of Convention offenses. Art. 31(3).
Under the Convention Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, States Parties shall criminalize inter alia: 1) an attempt to commit trafficking in persons; 2) participation as an accomplice in trafficking in persons; and 3) organization or direction of other persons to commit trafficking in persons. Trafficking Protocol, Arts. 1, 3-5.
The Convention Protocol against the Smuggling of Migrants by Land, Sea and Air prohibits inter alia criminal liability for migrants when they are the object of smuggling. Smuggling Protocol, Arts. 5-6. BM
Editor's Note: The text of the Convention and Protocols was obtained from the U.N. Office for Drug Control and Crime Prevention's website (http://www.odccp.org/palermo), which was not accessible at the time of this ILIB issue's publishing. The texts of the Convention and the Protocols are annexed to the Draft Resolution contained in the November 2, 2000 Report by the Ad Hoc Committee (U.N. Doc. A/55/383) to the U.N. General Assembly.
On February 21, 1997 a Tribunal ("Tribunal") of the International Centre for Settlement of Investment Disputes ("ICSID") rendered its award in a dispute between American Manufacturing & Trading, Inc. ("AMT") and the Democratic Republic of Congo ("Congo"). Paras. 1-2. On October 6, 1998 Congo submitted an application for revision of the award ("Application"), accompanied by a request for a stay of the award's enforcement ("Request"). Para. 3.
The Application was registered by ICSID on January 29, 1999 and the award's enforcement was provisionally stayed pending a ruling on the Request. Id. The Tribunal on March 10, 1999 decided under ICSID Arbitration Rule 54 to maintain the provisional stay until the Tribunal made a final ruling on the Request. Para. 7. Following submissions by the Parties, the Tribunal in its Order No. 1 of June 1, 1999 decided to continue the provisional stay on condition that an "irrevocable and unconditional bank guaranty from a reputable European Bank" be furnished by Congo. Para. 9. Congo did not furnish such a guaranty. Id.
On February 9, 2000 ICSID received AMT's request to discontinue the proceeding. Para. 12. On March 13, 2000 the Tribunal informed Congo of its decision under ICSID Arbitration Rule 44 that Congo was required by April 13, 2000 to state whether it opposed the requested discontinuance. Para. 13. On May 2, 2000 the Secretary of the Tribunal informed both Parties that the Congo had not stated its opposition, and under ICSID Arbitration Rule 44 was deemed to have acquiesced in the discontinuance. Para. 16.
The Arbitral Tribunal noted that no objection had been received by the date of the instant Order, and took note of the proceeding's discontinuance. PH
Editor's Note: This case was the first and only request for revision registered by ICSID to date. The document was provided in hard copy to the ILM Office.
Argentina's government granted to the Argentine subsidiary of U.S. company Lanco International, Inc. ("Claimant") a Concession Agreement for the development and operation of a port terminal in Buenos Aires. Sects. 1, 4-5. The Claimant later filed a request for arbitration before an ICSID Arbitral Tribunal ("Tribunal"), alleging breaches by Argentina of Articles I, II and IV of the 1991 U.S.-Argentina Treaty Concerning the Reciprocal Encouragement and Protection of Investment ("Treaty"). Sect. 1.
Argentina contested the Tribunal's jurisdiction, claiming that: 1) the Claimant had no standing in the case because it was "merely" a grantee's shareholder and consequently not a party to the Concession Agreement; and 2) because the subsidiary grantee was of Argentine nationality, the case was not covered by the Treaty, but rather the Concession Agreement, under which disputes were to be referred to the Federal Contentious-Administrative Tribunals in Buenos Aires. Sect. 7.
The Tribunal noted that there was nothing in the Treaty that required an investor in the capital stock to have either control over the administration of a company, or a majority share, in order to qualify as an investor for the purposes of the Treaty. Sect. 10. The Tribunal further noted inter alia that the Claimant was liable for all contractual obligations "to the extent of its equity share." Sects. 12, 14. The Tribunal therefore concluded that the Claimant was a party to the Agreement "in its own name and right." Sect. 12.
The Tribunal noted that the U.S. and Argentina had in Treaty Article VII(4) made a "generic offer" to submit to international arbitration "as selected by the investor." Sect. 32. The Tribunal noted that the Treaty was the first instance in which Argentina had accepted recourse to international arbitration "without intricate conditions and definitely discarding the exclusivity of territorial jurisdiction." Sect. 32. The Tribunal further noted that the Treaty did not provide for the exhaustion of domestic remedies as a prior condition required for Argentina's consent to ICSID arbitration. Sect. 39.
The Tribunal concluded that the investor's consent, combined with Argentina's consent as expressed in Treaty Article VII(4), created the consent needed to provide ICSID with jurisdiction under ICSID Convention Article 25(1). Sect. 33. The Tribunal noted that a party's consent to ICSID arbitration, once given, could not be withdrawn unilaterally. Sects. 40-41.
The Tribunal decided as a preliminary matter that it had jurisdiction to examine the merits of the dispute. Sect. 49. BM
Editor's Note: This decision was provided in hard copy by Powell, Goldstein, Frazer & Murphy LLP. For the text of the U.S.-Argentina Treaty, see 31 ILM 128 (1992).
The United States and European Communities ("Parties") appealed certain issues of law and legal interpretations contained in the World Trade Organization ("WTO") Panel report on the Parties' dispute concerning a U.S. definitive safeguard measure on imports of wheat gluten. Paras. 1, 7.
The WTO Appellate Body ("Appellate Body") noted that the issues raised in the appeal included whether the Panel had erred in finding that: 1) competent authorities are required to evaluate only "relevant factors" listed in the Agreement on Safeguards ("Agreement"), as well as other factors "clearly raised" by the interested parties in a domestic investigation (emphasis in original); 2) increased imports alone, in and of themselves, or per se must be capable of causing "serious injury"; and 3) the U.S. had violated its Agreement obligations by inter alia failing to provide adequate opportunities for consultations on the measure prior to implementation. Para. 44.
While upholding the Panel's finding of a violation, (Para. 59), the Appellate Body decided that competent authorities may not limit their evaluation of "all relevant factors" to those raised by the interested parties as being relevant. Para. 55. The Appellate Body also disagreed with the Panel's finding that the competent authorities are required to examine only "other factors" that interested parties had "clearly raised" (emphasis in original). Para. 56.
The Appellate Body concluded that the competent authorities "must, in every case, carry out a full investigation," including taking investigative steps beyond those listed in the Agreement, to enable them to conduct a proper evaluation of all relevant factors. Para. 55. The Appellate Body rejected, however, the EC contention that the competent authorities have an "open-ended and unlimited duty to investigate all available facts that might possibly be relevant." Para. 56.
The Appellate Body reversed the Panel's finding that increased imports alone, in and of themselves, or per se must be capable of causing serious injury. Para. 79. The Appellate Body found inter alia that the need to distinguish between the effects caused by increased imports and other factors "does not necessarily imply . . . that increased imports on their own must be capable of causing serious injury." Para. 70. (emphasis in original) The Appellate Body considered that, under the Agreement, "other factors" must be taken into account in the competent authorities' serious injury determination. Para. 71.
The Appellate Body upheld the Panel's finding that the U.S. had failed to provide a "sufficiently precise" description of the proposed safeguard measure to provide an "adequate opportunity for prior consultations." Paras. 142-43. The Appellate Body considered inter alia that Agreement Article 12.3 requires a proposing Member to provide exporting Members with "sufficient information and time" to allow for possible consultations and a "meaningful exchange on the issues identified." Para. 136. The Appellate Body took the view that an exporting Member would not have an "adequate opportunity" to negotiate overall equivalent concessions unless it had previously received "sufficiently detailed information" on the proposed measure and remedy. Paras. 137, 146. PH
Archived in Word and PDF format at http://www.wto.org/english/tratop_e/dispu_e/distab_e.htm See October 14-27, 2000 ILIB for abstract of the Panel report in question.
The International Court of Justice ("ICJ") has amended its rules concerning incidental proceedings related to preliminary objections and counter-claims. Amendments to Articles 79 and 80 that will come into force on February 1, 2001 are aimed at: 1) shortening the duration of such proceedings; 2) clarifying the rules in force; and 3) adapting them to "more closely" reflect the practice developed by the Court. More information is available at the ICJ website, located at http://www.icj-cij.org
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International Law In Brief - Copyright 2002 - The American Society of International Law
Editors: Peter C. Hansen, Esq., Branislav A. Maric