International Law In Brief
Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
February 6, 2004
- ICTR: The Prosecutor v. Jean de Dieu Kamuhanda Case No. ICTR-95-54A-T (January 22, 2004)
- NAFTA Arbitral Tribunal: Methanex Corporation v. United States (Tribunal Adopts the Free Trade Commission's Non-Disputing Party Participation Procedures) (December 30, 2003)
- ICSID: Autopista Concesionada de Venezuela, C.A. v. Bolivarian Republic of Venezuela Case No. ARB/00/5 (September 23, 2003)
The Governments of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and the United States recently concluded the Central American Free Trade Agreement (CAFTA). The draft text is subject to legal review for accuracy, clarity and consistency.
The agreement eliminates several trade barriers, among them, the United States' existing quantitative restrictions it maintains under the WTO Agreement on Textiles and Clothing from Costa Rica, El Salvador and Guatemala. In terms of services, the agreement provides, inter alia, that Central America will allow U.S.-based firms to supply cross-border insurance and financial services. The agreement allows for new access to government procurement contracts, granting U.S. suppliers non-discriminatory rights to bid on contracts from Central American government agencies.
CAFTA's investment chapter limits the scope of investments covered by providing that "the provisions of this Chapter do not bind any Party in relation to any act or fact that took place or any situation that ceased to exist before the date of entry into force of this Agreement."(Article 10.1(3)). Using the same language of the Chile and Singapore FTA Agreements, it attempts to limit and clarify the minimum standard of treatment of investment, by emphasizing the customary international law minimum standard and noting that ?full protection and security? do not require treatment in addition to or beyond that which is required by that standard, nor do they create additional substantive rights.
In terms of the Most Favored Nation provision, the draft text goes beyond the texts of the Chile and Sinagpore FTAs by attempting to limit the potential scope of the interpretation of the ICSID Maffezini case (40 ILM 1129 (2001)) (Decision on Jurisdiction). The draft text specifically makes reference to this case in the following footnotes:
1 The Parties agree that the following footnote is to be included in the negotiating history as a reflection of the Parties? shared understanding of the Most-Favored-Nation Treatment Article and the Maffezini case. This footnote would be deleted in the final text of the Agreement. The Parties note the recent decision of the arbitral tribunal in Maffezini (Arg.) v. Kingdom of Spain, which found an unusually broad most-favored-nation clause in an Argentina-Spain agreement to encompass international dispute resolution procedures. See Decision on Jurisdiction ¶¶ 38-64 (Jan. 25, 2000), reprinted in 16 ICSID Rev. ? F.I.L.J. 212 (2002). By contrast, the Most-Favored-Nation Treatment Article of this Agreement is expressly limited in its scope to matters ?with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments.? The Parties share the understanding and intent that this clause does not encompass international dispute resolution mechanisms such as those contained in Section C of this Chapter, and therefore could not reasonably lead to a conclusion similar to that of the Maffezini case.
2 The Parties agree that the following footnote is to be included in the negotiating history as a reflection of the Parties? shared understanding regarding the interpretation of the most-favored-nation and national treatment obligations. This footnote would be deleted in the final text of the Agreement.
Click here for the document.
The Treaty Between the United States of America and Japan on Mutual Legal Assistance in Criminal Matters ("the Treaty") sets forth a non-exhaustive list of the major types of mutual assistance for criminal matters, such as taking testimony, examining persons and transferring persons into custody for testimony. The Treaty extends to assistance provided not only in connection with the investigation, prosecution and prevention of criminal offenses, but also in certain related proceedings, such as administrative investigation related to securities fraud.
Article 3 of the Treaty sets forth the circumstances under which a requested State may deny assistance in criminal matters under the Treaty. According to this article, a request may be denied if it is related to a political offense, if the execution of a request would impair security or other essential interests, if a request does not conform to the requirements of the Treaty, or if the conduct would not constitute a criminal offense under the laws of the requested Party and the execution of the request requires a court warrant or other compulsory measures under the laws of the requested Party. Before denying assistance under Article 3(1) the requested Party is under an obligation to consult with the requesting Party in regard to the conditions of assistance that may be given. If the requested Party denies assistance, it must provide reasons for the denial. Under Article 5(5), if the requested Party determines that execution of a request for assistance in a criminal matter would interfere with an ongoing criminal investigation, it may postpone execution of the request or make the execution of the request subject to conditions deemed necessary following consultations with the requesting Party.
Document provided to the ILM Office.
The Trial Chamber II of the International Criminal Tribunal for Rwanda sentenced Mr. Kamuhanda to imprisonment for the remainder of his life. Mr. Kamuhanda was found guilty on 2 counts: genocide (count 2) and extermination as a crime against humanity (count 5).
Mr. Kamuhanda was born on March 3, 1953 in Gikomero commune, Kigali-Rural préfecture, Rwanda. He held the office of Ministry of Higher Education and Scientific Research in the Interim Government from late May until mid-July 1994. Mr. Kamuhanda was arrested on November 26, 1999 in France and was transferred from France to the seat of the Tribunal in Arusha on March 7, 2000.
The indictment charged Mr. Kamuhanda with 9 counts comprising genocide, crimes against humanity and serious violations of Article 3 Common to the Geneva Conventions and Additional Protocol II. The crimes were committed between January 1, 1994 and December 31, 1994 in Rwanda where the Tutsi, the Hutu and the Twa were identified as racial or ethnic groups. The indictment alleges that Mr. Kamuhanda organized, ordered and participated in the massacres perpetrated against the Tutsi population and moderate Hutu. The indictment further asserted that the accused personally led attacks of soldiers against Tutsi refugees in Kigali-Rural préfecture in April 1994. According to the indictment, he personally distributed firearms, grenades, and machetes to civilian militia in Kigali-Rural for the purpose of ?killing all the Tutsi and fighting the RPF (Rwandese Patriotic Front)?.
The defense argued, inter alia, that Mr. Kamuhanda was not connected in any way to the massacres at Gikomero Parish. However Mr. Kamuhanda admitted that there were systematic attacks directed throughout Rwanda against the civilian population with the objective of extermination of the Tutsi. The defense also argued that the prosecution witnesses bore false testimony against Mr. Kamuhanda. The defense attacked the credibility of most prosecution witnesses. The defense further asserted that it was physically impossible for Mr. Kamuhanda to participate in the acts or to be at the places alleged in the indictment during the period from April 6, 1994 until April 13, 1994, because the travel routes were not passable due to the fighting.
The Chamber found that Mr. Kamuhanda was a respected man, influential, and considered to be intellectual. The Chamber found that he instigated and led an attack to kill people who had taken shelter in a place universally recognized to be a sanctuary, the Compound of the Gikomero Parish Church. As a result of this attack many people were massacred. The Chamber found that the high position Mr. Kamuhanda held as a civil servant could be considered as an aggravating factor. The Chamber also found that Mr. Kamuhanda distributed weapons to members of the Interhamve, the youth-wing of National Revolutionary Movement for Development (?MRND?) in the attacks in Gikomero and that he himself participated in the crimes against the Tutsi population at Gikomero on April 12, 1994.
The Chamber found that Mr. Kamuhanda was in a position of authority over the attackers, for purposes of his responsibility under Article 6(1) of the Statute for ordering the attack at the Gikomero Parish Compound. Further, the Chamber noted that the concept of a group enjoys no generally or internationally accepted definition, rather each group must be assessed in the light of a particular political, social, historical and cultural context. Accordingly, ?for purposes of applying the Genocide Convention, membership of a group is, in essence, a subjective rather than an objective concept where the victim is perceived by the perpetrator of genocide as belonging to a group slated for destruction.?
Having considered all the evidence and arguments, the Chamber found Mr. Kamuhanda guilty on 2 counts. Further the Chamber dismissed two of the counts: complicity in genocide (count 3), and murder as a crime against humanity (count 4). Mr. Kamuhanda was found not guilty on the following four counts: rape as a crime against humanity (count 6), other inhumane acts as a crime against humanity (count 7), outrage on personal dignity as serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II (count 9), and killing and violence as serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II. The Chamber entered a Judgment of Acquittal in respect of count 1 of the Indictment: conspiracy to commit genocide. Judge Maqutu appends his separate and concurring opinion on the verdict and sentence.
Click here for the document.
North American Free Trade Agreement (NAFTA) Arbitral Tribunal: Methanex Corporation v. United States (Tribunal Adopts the Free Trade Commission's Non-Disputing Party Participation Procedures) (December 30, 2003)
The Tribunal adopted the procedures set out in part B of the NAFTA Free Trade Commission's statement concerning submissions from non-disputing parties. In line with the understanding of the disputing parties, the Tribunal will communicate with the existing amici and also arrange for a notice to be published promptly to the same effect.
The Free Trade Commission?s Statement provides that "No provision of the North American Free Trade Agreement (?NAFTA?) limits a Tribunal?s discretion to accept written submissions from a person or entity that is not a disputing party (a ?non-disputing party?)" and further ?that nothing in this statement [?] prejudices the rights of NAFTA Parties under Article 1128 of the NAFTA."
Part B of the Commission's Statement provides that any non-disputing party that is a person of one of the NAFTA parties, or has a "significant presence" in the territory of a NAFTA Party may seek leave from the Tribunal to file a submission regarding the NAFTA dispute. The applicant must provide information, inter alia, as to its legal status if it is a company, NGO, etc., and its affiliation with any disputing party. It must identify any government, person or organization that has provided the applicant with financial assistance in preparing the submission, and it must specify the interest it has in the arbitration. In regard to the Tribunal's decision as to whether to grant leave to file a non-disputing party submission, the Free Trade Commission stated that NAFTA Chapter Eleven Tribunals are to consider the extent to which: (a) the non-disputing party submission would assist the Tribunal in the determination of a factual or legal issue related to the arbitration by bringing a perspective, particular knowledge or insight that is different from that of the disputing parties; (b) the non-disputing party submission would address matters within the scope of the dispute; (c) the non-disputing party has a significant interest in the arbitration; and (d) there is a public interest in the subject-matter of the arbitration.
Click here for the Press Release from the Tribunal.
Click here for the NAFTA Free Trade Commission Statement of October 7, 2003.
The ICSID arbitral Tribunal (?the Tribunal?) held that the Bolivarian Republic of Venezuela (?Venezuela?) breached Clauses 22, 23, 31, 32 and 64 of a concession agreement. The Tribunal also held that Autopista Concesionada de Venezuela, C.A. (?Aucoven?) was entitled to terminate the concession agreement on the ground of Venezuela?s breaches.
The arbitration was brought under the ICSID arbitration clause contained in a concession agreement with Venezuela for the construction and maintenance of two major highways linking Caracas to La Guaira.
The claimant is a company incorporated under the laws of Venezuela and owned by ICATECH Corporation, a United States company. On January 24, 1996 ICA and Baninsa consortium incorporated the Autopista Concesionada de Venezuela, Acoven C.A., a Venezuelan corporation, to serve as concessionaire. On December 23, 1996 the claimant entered into the concession agreement with Venezuela.
Venezuela objected to the Tribunal?s jurisdiction. Venezuela pointed out that Aucoven was in fact controlled by ICA Holding, a company incorporated under the laws of Mexico, and therefore Aucoven could not initiate an ICSID arbitration proceeding, since Mexico was not a Contracting State of the ICSID Convention. Venezuela claimed that the transfer of 75% of Aucoven?s shares from ICA Holging to ICATECH did not diminish ICA Holding?s control over Aucoven?s operations in Venezuela. Venezuela further argued that Mexican officials sent written communications and held meetings with Venezuelan officials. According to Venezuela, this kind of diplomatic protection is a breach of Article 27 of the ICSID Convention. Venezuela asserts that Mexican diplomatic efforts confirm ICA Holding?s direct interest in Aucoven. Venezuela further stated that even if the parties had agreed to treat Aucoven as a United States national for jurisdictional purposes, the pervasive control by Mexican nationals over, and involvement in the affairs of Aucoven should lead the Tribunal to decline jurisdiction. On September 27, 2001 the Tribunal upheld jurisdiction on the basis that the criteria chosen by the parties to define foreign control were reasonable. The Tribunal held that ?an Arbitral Tribunal may not adopt a more restrictive definition of foreign control, unless the parties have exercised their discretion in a way inconsistent with the purpose of the Convention.?
According to the concession agreement, Aucoven was obligated to design, construct, operate, exploit, conserve, and maintain the highway system. The claimant was further obligated to build other works related to the highway system and to operate and maintain the highway system for a period of 30 years. Venezuela?s obligations under the concession agreement were mainly related to the financing of the investments required under the concession agreement.
Aucoven claimed that Venezuela failed to perform its obligations under the concession agreement by, inter alia, failing to raise the tolls, to issue the guarantee, to pay the minimum guaranteed income, and to pay Aucoven for additional and excess works. Aucoven further alleged that Venezuela?s failure to perform its obligations could not be excused by force majeure, and that it was entitled to unilaterally terminate the concession agreement.
Venezuela claimed, inter alia, that Aucovan?s unilateral termination was not valid or effective under the concession agreement and under Venezuelan law. Venezuela claimed that Aucoven did not suffer any loss of future profits and further that Aucoven?s lost profits claim failed due to the fact that there were independent legal obstacles excluding Venezuela?s liability.
The Tribunal noted that the contractual force majeure defined in Clause 41(2) expressly refers to the circumstances that impede the concessionaire to perform. Further the Tribunal noted that consequences of force majeure are not governed by contract, but must be assessed according to the applicable law. In the Tribunal?s opinion there was no reason to depart from the impossibility standard applicable under Venezuelan administrative law. Concerning the failure to issue the guarantee and the risk of illegality, the Tribunal stated that Venezuela assumed the risk of illegality of the issuance of any guarantees. The Tribunal concluded that Venezuela breached its obligation to issue the guarantee according to Clause 22 of the Concession Agreement.
Having considered all the evidence and arguments, the Tribunal found that Venezuela had to pay to Aucoven compensation for damages. Further the Tribunal held that each party shall bear the expenses incurred by it in connection with the arbitration.
Members of the Arbitral Tribunal were: Prof. Gabrielle Kaufmann-Kohler (President), Prof. Karl-Heinz Böckstiegel, Dr. Bernardo Cremades
Click here for the final award.
Click here for the decision on jurisdiction.
The new Spanish Arbitration Act ("the Act") was officially published in the Boletín Oficial del Estado on December 23, 2003. The Act will come into force on March 26, 2004, and applies to any arbitration where the designated place of arbitration is Spain. The Act is designed to provide a uniform legal scheme for domestic and international arbitration, and although based on the UNCITRAL Model Law on International Commercial Arbitration, presents significant changes to this Model Law.
Unlike the UNCITRAL Model Law which provides that "This Law shall not affect any other law of this State by virtue of which certain disputes may not be submitted to arbitration or may be submitted to arbitration only according to provisions other than those of this Law (Article I(5))" The Spanish Arbitration Act aims to prevent a State from invoking its domestic law in order to require that the dispute be resolved in its domestic administrative courts: "Where the arbitration is international and one of the parties is a State or a company, organisation or enterprise controlled by a State, that party shall not be able to invoke the prerogatives of its own law in order to avoid obligations arising from the arbitration agreement."(Article 2(2))
In addition the Spanish Arbitration Act provides for electronic or online arbitration, and accepts as valid electronic arbitration agreements, (Art. 9.3) electronic communications and modifications (Art. 5.a); and, even more importantly, electronic awards and their notification to the parties by electronic means (Art. 37.3).
Document (translated into English) provided to the ILM Office.
President Luiz Inacio Lula da Silva has called for Brazil, India and South Africa to agree on a trilateral trade pact as part of a new bloc among developing countries to compete with developed economies. A Brazilian team of trade experts led by the country's foreign minister will visit India in March to work out a preliminary plan to explore such an agreement with South Africa.
The Prosecutor of the ICC has determined that there is a sufficient basis to start planning for the first investigation of the ICC into the activities of the Lord's Resistance Rebel group in Uganda for war crimes and crimes against humanity.
World Intellectual Property Organization (?WIPO?): Patent Cooperation Treaty (?PCT?) Reform (January 1, 2004) As of January 1, 2004 the reforms to the Patent Cooperation Treaty simplifying the complex procedure of obtaining patent protection in several countries entered into force. The reform process of the PCT, adopted in 1970 in Washington D.C., amended in 1979 and modified in 1984 and 2001, launched under the auspices of WIPO in mid-2001, sought to improve the efficiency of the PCT and to facilitate the ability of inventors and applicants to obtain patents worldwide in more than 120 countries by submitting a single ?international? application. The reforms include a simplified designation procedure and fee structure, new enhanced search and examination system, reduced duplication of work in processing of PCT applications and centralized availability to third parties of international preliminary examination reports through a request to WIPO.
International Law In Brief (ILIB) - Copyright 2004