International Law In Brief
Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
March 6, 2007.
©2007 American Society of International Law
(Educational copying is permitted with due acknowledgment)
TREATIES, AGREEMENTS AND RELATED DOCUMENTS
Africa: Second Summit of the International Conference on the Great Lakes Region: Pact on Security, Stability and Development in the Great Lakes Region (14 and 15 December 2006): Declaration, Pact, and Protocols.
Click here for document. (Declaration approximately 3 pages, Pact approximately 15 pages, protocols approximately 200 pages).
Presidents of the Great Lakes nations of Angola, Burundi, the Central African Republic, the Republic of the Congo, the Democratic Republic of the Congo, Kenya, Rwanda, Sudan, Tanzania, Uganda, and Namibia, met at a summit in Nairobi, Kenya, and concluded a pact on Security, Stability, and Development in the region, in December 2006. The pact is now open for ratification. Member States at the Summit simultaneously adopted a declaration bringing into force the operational aspects of the pact, including establishing a Conference Secretariat within 3 months after the signing of the pact. The Conference Secretariat will strive to the rapid ratification of the pact by Member States; create legal, financial, and administrative processes for implementing it; work with the African Development Bank to create and make operational the fund created in Chapter IV of the pact; identify priority areas and work regarding the implementation of the pact; hold meetings of the Conference entities; and obtain financial assistance from member states and other partners. The pact is accompanied by ten draft protocols on: 1) good-governance; 2) illegal exploitation of natural resources; 3) judicial cooperation; 4) non-aggression and mutual defense; 5) protection and assistance to internally displaced persons; 6) crime prevention; 7) human social property rights; 8) sexual violence against women and children; 9) the specific reconstruction and development zone, .and 10) the Prevention and Punishment of the Crime of Genocide, War Crimes, and Crimes Against Humanity and all forms of Discrimination.
Article 2 of the pact sets forth its three primary objectives to : 1) provide a legal framework governing the relations between the member states; 2) implement the Dar-es-Salaam Declaration, protocols, programs of action, regional follow-up mechanism, and the Special Reconstruction and Development Fund; and 3) produce the environment for security, stability, and sustainable development between member states. The pact is designed to govern legal relations between the member states who ratify it in the areas of peace and security, democracy and good governance, economic development and regional integration, and humanitarian, social, and environmental issues. Member states agree to base their relations upon their value for the principles of national sovereignty, territorial integrity, non-interference in internal affairs of other member states, non-aggression, cooperation, and peaceful settlement of disputes. Chapter II, Articles 5 to 15 of the pact describes the purpose of each of the protocols. Chapter IV creates a special fund for reconstruction and development to be managed by the African Development Bank. Member states will be required to contribute to the fund. Article 31 of the pact prohibits member states from making reservations to it.
JUDICIAL AND RELATED DOCUMENTS
International Court of Justice (ICJ): Bosnia and Herzegovina v. Serbia and Montenegro (February 26, 2007).
Click here for document. (Approximately 160 pages).
The International Court of Justice (ICJ) by a vote of ten to five held that it has jurisdiction to hear the dispute based upon Article IX of the Convention on the Prevention of the Crime of Genocide. By a vote of thirteen to two, it found that Serbia has not committed genocide in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, and it held that Serbia neither conspired to commit genocide nor incited the commission of genocide. By a vote of twelve votes to three, the ICJ found that Serbia has violated its obligation to prevent genocide pursuant to Article I of the Genocide Convention, with respect to the genocide that occurred in Srebrenica in July 1995. The court further found that Serbia has violated its obligations under the Genocide Convention for failing to transfer Ratko Mladic for trial at the International Criminal Tribunal for the Former Yugoslavia (ICTY). By a vote of thirteen votes to two, the court found that Serbia had failed to comply with the courts order for provisional measures of 8 April and 13 September 1993 to take all actions within its power to prevent genocide in Srebrenica in July 1995.
In its reasoning, the court emphasized that allegations of the crime of genocide must be proved by conclusive evidence. While the court does find that there were considerable numbers of people killed in Bosnia and Herzegovina, it nevertheless remains unconvinced that the a critical element of the Genocide Convention, Article II, specific intent to destroy, in whole or in part, the group of Bosnian Muslims, was present.
The court examines the specific circumstances of the massacre at Srebrenica, including the fact that the International Criminal Tribunal for the former Yugoslavia found in the Krstic and Blagojevic cases that Bosnian Serbs soldiers killed over 7,000 men there in July 1995. The court finds that acts of genocide occurred at Srebrenica and that the army of the Republic Srpska possessed the specific intent to destroy in whole or in part the Bosnian Muslims of Srebrenica, but that those acts cannot be legally attributed to Serbia under international principles of state responsibility. Further, the court finds that the massacre did not take place at the direction of Serbia. The court does find however, that Serbia did exercise influence over the Bosnian Serbs who carried out the genocide at Srebrenica, and must have been aware of the risk of genocide there. For that reason, the court finds that Serbia failed to prevent the Srebrenica massacres, thus violating its responsibility under the Genocide Convention Article I. While Bosnia and Herzegovina requested reparations, the court finds that that this was not the appropriate remedy. It recommends that a declaration be made that Serbia failed to comply with the Genocide Convention and must cooperate with the ICTY by sending those accused of accused of genocide to the tribunal.
International Criminal Court: Prosecutor Luis Moreno-Ocampos Summary of Application to the Court under Article 58(7) Situation in Darfur, the Sudan (27 February 2007)
Click here for document. (Approximately 10 pages).
On 27 February 2007, Luis Moreno-Ocampo, Prosecutor of the International Criminal Court, applied to Pre-Trial Chamber I for the issuance of summonses to appear against Ahmad Muhammad Harun, former Minister of State for the Interior of the Government of Sudan, and Ali Muhammad Ali Abd-Al-Rahman, Ali Kushayb," a Militia/Janjaweed leader hold criminal responsibility for 51 counts of alleged crimes against humanity and war crimes, including persecution, torture, murder, and rape, committed in Darfur, Sudan, in 2003 and 2004. The crimes were perpetrated in attacks in the towns and villages of Kodoom, Bindisi, Mukjar, and Arawala.
The United Nations Security Council, acting pursuant to its Chapter VII authority, referred the situation in the Darfur region of Sudan to the Prosecutor of the ICC on March 31, 2005. The Prosecutor began his investigation on June 1, 2005. The Prosecution gathered statements and evidence in 70 missions in 17 nations. Because of the lack of security in Darfur, the Prosecution interviewed victims in other countries, following its obligation under Article 68(1) of the Rome Statute, to protect the well-being of victims and witnesses.
Pursuant to Article 58(2)(d) of the Rome Statute, the Prosecution provided a summary of the evidence and other information sufficient to find reasonable grounds to believe that Ahmad Harun and Ali Kushayb have committed war crimes and crimes against humanity. The Prosecution reports that Sudanese Armed Forces and Militia/Janjaweed attacked villages because the inhabitants of them supported the rebel forces, though they were not participants in the armed conflict. The Prosecution alleges that Ahmad Harun and Ali Kushayb shared the illegal objective of persecuting the civilian populations in Darfur.
Ahmad Harun led the Darfur Security Desk while serving as Minister of State for the Interior. In this role he managed and recruited Militia/Janjaweed and knew that they committed crimes against humanity and war crimes against civilians in Darfur. Ali Kushayb led Milita/Janjaweed attacks upon the villages of Kodoom, Bindisi, Mukjar, and Arawala. Every three months Ahmad Harun traveled to Darfur to pay the Militia/Janjaweed in cash from funds that was unlimited and not publicly audited. He also delivered arms to the Militia/Janjaweed and was seen in planes loaded with Kalashnikov assault rifles and ammunition. In August 2003 Ali Kushayb gave orders to the Milita/Janjaweed during the attack on Bindisi village. The attack lasted five days in which building were pillaged and burned and about 100 people were killed including 30 children. In the attack on Arawala Ali Kushayb inspected naked women before they were raped by men under his command. A witness stated that she and other women were tied to trees and continually raped.
United States Supreme Court: Sinochem Int'l Co. v. Malaysia Int'l Shipping Co. (March 5, 2007)
Click here for document. (Approximately 9 pages).
In a unanimous opinion delivered by Justice Ginsburg, the United States Supreme Court held that a district court has discretion whether to first resolve the issue whether it has subject-matter jurisdiction or personal jurisdiction over the defendant if it ascertains that a foreign tribunal should more properly determine the merits of the case pursuant to the doctrine of forum non conveniens..
The suit arose out of the following facts. Sinochem International Company Ltd., (Sinochem) a Chinese-owned importer, entered into a contract with Triorient Trading, Inc. (Triorient) to buy steel coils. Triorient was to be paid through a letter of credit by showing a valid bill of lading indicating that the steel coils had been loaded for shipment to China on or before April 30, 2003. Triorient subcontracted with Malaysia International Shipping Corporation (Malaysia International) to bring the steel coils to China. Triorient subsequently hired another company to load the steel coils at the port of Philadelphia. An April 30, 2003 bill of lading triggered the payment. In June 2003 Sincochem filed suit in Admiralty Court in Guangzhou, China, to preserve its maritime claim and arrest of the boat alleging that Malaysia International had falsified the bill of lading by backdating it. The Chinese court ordered the ship to be arrested. Malaysia International contended that the Chinese court lacked jurisdiction to hear the case. The admiralty court overruled this objection to its jurisdiction, and the Guangdong Higher Peoples court affirmed that decision on appeal. Malaysia International then brought suit in the U.S. District Court for the Eastern District of Pennsylvania. Sinochem moved to dismiss on grounds of forum non conveniens, lack of both personal and subject matter jurisdiction, and international comity. While the district court held that it held jurisdiction pursuant to 28 U.S.C. §1331(1) (admiralty or maritime jurisdiction), it nevertheless granted Sinochems motion to dismiss on forum non conveniens grounds without first permitting discovery to determine whether it held personal jurisdiction. On appeal the Court of Appeals for the Third Circuit held that the district court should have determined whether it had personal and subject-matter jurisdiction before dismissing the case on grounds of forum non conveniens. The Supreme Court granted certiorari to resolve a split among the federal circuits whether forum non conveniens can be determined before jurisdictional matters. The Supreme Court reversed the Third Circuits decision and remanded the case.
In its reasoning the Court noted that the doctrine of forum non conviens has continuing application only where the other forum is abroad. Federal courts may dismiss for forum non conveniens, circumventing issues of subject-matter and personal jurisdiction, when convenience, fairness, and judicial economy would be better served in another forum. In its decision, the Court did not view itself as bound by Gulf Oil v. Gilbert, 330 U.S. 501 (1947), upon which the Third Circuit relied for its holding, because Gulf Oil did not address the same issue: whether a district court could dismiss a case under forum non conveniens before determining its jurisdiction.
United States: Boumediene v. Bush (D.C. Cir. February 20, 2007)
Click here for document. (Approximately37 pages)
In an opinion by Judge Randolph, the United States Court of Appeals for the District of Columbia examined whether federal courts have jurisdiction over petitions for writs of habeas corpus filed by aliens detained at Guantanamo Bay Cuba after enactment of the Military Commissions Act (MCA), and if not, whether the MCA unconstitutionally suspends the writ. The court held that it has no jurisdiction in these cases and vacated the district court decisions below it.
The opinion traces the history of the detainees litigation through Rasul v. Bush, 542 U.S. 466 (2004), the Detainee Treatment Act (DTA) of 2005, Pub. L. 109-148, 119 Stat. 2680, Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2606), and finally the Military Commissions Act (MCA) of 2006, Pub. L. 109-366, 120 Stat. 2600 (45 ILM 1246 2006). The DTA amended the federal habeas corpus statute, 28 U.S.C. §2241 to add a new subsection (e). That subsection prevented courts from exercising jurisdiction over writs of habeas corpus filed by detainees at Guantanamo except that the District Court for the District of Columbia retained exclusive judicial review of the Combatant Status Review determinations. Section 7(a) of the MCA stripped courts of their ability to consider applications for writs of habeas corpus who were properly detained as an enemy combatant or who is awaiting such determination. Section 7(b) of the MCA applied the restrictions in 7(a) to all cases, without exception, pending on or after the date of the enactment of the MCA. The court of appeals holds that the MCA does strip the courts of the ability to hear petitions for writs of habeas corpus filed by the Guantanamo detainees. It next considers whether the statute unconstitutionally violates the Suspension clause of the U.S. Constitution, art. I, §9, cl. 2. This section provides that the writ of habeas corpus shall not be suspended unless in cases of rebellion or invasion, or when the public safety requires it. Counsel for the detainees argued that there was a federal common law writ of habeas corpus that extended beyond the English sovereigns authority, but the court of appeals did not concur, citing Johnson v. Eisentrager, 339 U.S. 763 (1950). Despite the indefinite lease that the U.S. entered into with Cuba in 1903 that permits the U.S. to operate Guantanamo Bay, the court of appeals opined that Cuba exercises sovereignty over Guantanamo Bay.
In her dissent, Judge Rogers opines that the majoritys holding that the MCA is consistent with the Suspension Clause of Article 1, section 9, of the Constitution, does not withstand analysis. She reasons that the Suspension Clause restricted Congress to limit the removal of habeas corpus only to times of rebellion or invasion unless Congress provided an adequate alternative remedy. Because Congress did not create a sufficient one in either the DTA, and did not raise the exceptions to the writ, the MCA is void and does not strip the courts of jurisdiction.
International Criminal Tribunal for the Former Yugoslavia: Prosecutor v. Zelenovic (Trial Chamber) (16 January 2007)
Click here for document (Approximately 20 pages).
In 1999 Prosecutor Carla Del Ponte charged Dragan Zelenovic with torture, a crime against humanity, rape, a crime against humanity, and enslavement and rape of 9 women, and outrages upon personal dignity. On January 17, 2007, Dragan Zelenovic, a former Bosnian Serb soldier and military policeman in Foca, a city located southeast of Sarajevo, pled guilty to seven counts of torture and rape committed during a broader attack on the Muslim community.
The first Serb attack on Foca occurred on 7 April 1992, and the Serbs overtook the entire town by 17 April 1992. Serb forces rounded up the civilians and held the men and women in separate detention facilities. On 3 July 1992 Serb forces including Dragan Zelenovic rounded up women and children and the elderly and took them to a series of barracks and an adjoining motel at Buk Bijela. They then separated the women from the children and interrogated the women on the location of male villagers and weapons. Zelenovic threatened women with death or rape if they lied. After the interrogations Zelenovic and a number of other soldiers gang raped women who they thought had lied. One witness, who was fifteen years old at the time of the rape, testified that she was gang-raped by four men including Zelenovic. Another woman was interrogated by Zelenovic and then gang-raped by at least ten other soldiers other than Zelenovic until she lost consciousness. Between 3 July and 13 July 1992 those held at Buk Bijela were moved to Foca high school and then to the Partizan Sports Hall in Foca. Every evening, groups of Serb soldiers sexually assaulted and gang raped the women and girls in classrooms and nearby building of the high school. The soldiers threatened to kill the women and/or their children if they resisted, and those who resisted were beaten. On 6 or 7 July 1992, Zelenovic and other soldiers picked a group of women and took them to another classroom where other soldiers were waiting. Zelenovic ordered which woman should go to which man and the women were then raped. After the prisoners were moved to Partizan Sports Hall they were held in unhygienic conditions, were starving, and were subject to physical and psychological torture including sexual assault. In the evenings, groups of 3-5 soldiers removed women to houses, apartments, or hotels to sexually assault and rape them. Most of the detainees were released in August 1992 to Montenegro, but some were still held and were raped by Zelenovic and others in October 1992.
Many women suffered permanent gynecological and psychological harm as a result of the rapes, and at least one can no longer have children.
United States: Taveras v. Taveraz (6th Cir. February 16, 2007)
Click here for document. (Approximately 14 pages)
Romil Rafael Estrella Taveras appealed the district courts dismissal of his parental child abduction case brought pursuant to the Alien Tort Claims Act (ATC) 28 U.S.C. §1350 for lack of subject matter jurisdiction. The Sixth Circuit Court of Appeals affirmed the dismissal.
Mr. Romil Rafael Estrella Taveras (Mr. Taveras) and Carolyn R. Paiewoksy Taveraz (Ms. Taveraz), citizens of the Dominican Republic, married and had two children, both minors. The couple subsequently divorced in the Dominican Republic and Ms. Taveraz obtained full guardianship of the children. In 2004 Ms. Taveraz traveled to the U.S. on a visitors visa but later moved in with her parents in Ohio. Mr. Taveras filed a parental child abduction suit in the U.S. District Court for the Southern District of Ohio and alleged several jurisdictional bases for his suit including the Full Faith and Credit Clause of the United States Constitution, art. IV, sec. 1; The Hague Convention on the Civil Aspects of International Child Abduction October 25, 1980; and the International Child Remedies Act (ICARA); and 42 U.S.C. §11601-11610 which codifies The Hague Convention. Ms. Taveraz moved for lack of subject matter jurisdiction because the Dominican Republic is not a party to The Hague Convention. Mr. Taveras subsequently amended his complaint to include an ATC action. The district court dismissed for lack of subject matter jurisdiction under the ATC because Mr. Taveras failed to meet the criteria for a violation of a treaty or the law of nations and the result of allowing this sort of cause of action would be to turn district courts into ill-suited family courts.
In its opinion, the Sixth Circuit emphasizes that Mr. Taveras brings his ATC suit pursuant to violations of the law of nations, under the safe conduct doctrine, or, in the alternative, because of international consensus against child abduction. The court cites the United States Supreme Courts admonition in Sosa v. Alvarez-Machain, 542 U.S. 692, 728 (2004) that the lower courts should exercise great caution when adapting the law of nations to private rights. In Sosa, the court enumerated when ATC suits alleging violations of the law of nations could be brought in addition to the three historic bases of: 1) piracy; 2) offenses against ambassadors; and 3) safe conducts. To be actionable under the ATC, violations of international norms must be specifically defined and as generally accepted by civilized nations as the historic crimes originally associated with the statute. Mr. Taveras contended that his ex-wife violated the safe conduct right of the United States to ascertain whether it wanted to grant admittance to a child abductor, but the Sixth Circuit opined that that was not the intended purpose of the safe conduct rule, which was to permit an alien safe passage through a nation for an intended purpose, as well as to a specific document conveying that right to an individual generally to maintain diplomatic and commercial relations, rather than to protect nations from fraudulent entrance of aliens.
The court next examined whether cross-border parental child abduction violates the law of nations pursuant to the ATC, but the court rejects this argument as well, opining that the sources of law upon which Mr. Taveras bases his claim are neither specific enough nor accepted widely enough to satisfy the Sosa test.
United States: Fund for Animals, Inc. v. Kempthorne (D.C.Cir. December 15, 2006).
Click here for document. (Approximately 15 pages).
The Migratory Bird Treaty Act (the Act), first passed in 1918, makes it unlawful to hunt or kill migratory birds included in the term of the Conventions. The Act implements international conventions which the U.S. entered into with Canada and Mexico. In Hill v. Norton, 275 F.3d 98 (D.C.Cir. 2001), the court held that the Act protected mute swans. Congress subsequently enacted the Migratory Bird Treaty Reform Act in 2004, which amended the Act to limit its scope to migratory bird species that are native to the United States or its territories. See 16 U.S.C. §703(b)(1). The revision to the Act defined native to the United States or its territories as occurring in the United States or its territories as a result of natural biological or ecological processes. It further provided that non-native species present in the U.S. because of intentional or unintentional human introduction are not viewed as falling within the protection of the Act. The U.S. Department of the Interior, Fish and Wildlife Service then published a draft regulation specifying which non-native species would not fall within the Act. See Draft List of Bird Species to Which the Migratory Bird Act Does Not Apply 70 Fed. Reg. 372 (Jan. 4, 2005), excluding the mute swan. In 2005 the State of Maryland announced that it would begin killing mute swans because they posed a risk to the ecosystem of the Chesapeake Bay. In 2004, the Fund for Animals, an affiliate of the Humane Society, and three individuals who enjoyed having mute swans on their property, sued the Secretary of the Department of the Interior pursuant to the Administrative Procedure Act claiming that the statute protects the mute swan, and they sought an order requiring Maryland to obtain a permit before killing the swans. They also sought a preliminary injunction. A district court denied the preliminary injunction, holding that the statute was unambiguous and that Congress meant to exclude nonnative migratory birds in the Reform Act. The district court held that the Reform Act controlled because Congress has the power to modify a treaty or earlier legislation.
Plaintiffs appealed and contended that despite the amendments to the Act, it nevertheless still covered mute swans, a non-native migratory bird species. They relied on language in the Reform Act, that it was the sense of Congress that [t]he language of this section is consistent with the intent and language of the 4 bilateral treaties implemented by this section. See Consolidated Appropriations Act, Div. E, Title I, §143(d). Plaintiffs argued that the statute was ambiguous and therefore the court should apply the cannon that ambiguous statutes should not be allowed to abrogate a treaty, in this case, the conventions that protect the mute swans. The Circuit Court however, held that the statute is not ambiguous, and the cannon of construction is therefore inapplicable. The legislative history of the Reform Act demonstrates that Congress meant to exclude mute swans and other non-native birds from the protection of the Act. To read the Act as the plaintiffs want it to do, the Court of Appeals held, it would have to distort the plain meaning of a statute to make it consistent with a prior treaty.
International Centre for Investment Disputes: Suez, Socieded General de Aguas de Barcelona, S.A., and Vivendi Universal v. Argentina: Order in Response to a Petition by Five Non-Governmental Organizations for Permission to make an Amicus Curiae Submission (February 12, 2007)
Click here for document. (Approximately pages).
In response to a petition filed by five non-governmental organizations (the Petitioners) on May 19, 2005, the tribunal found that Article 44 of the ICSID Convention provided it with the authority to permit suitable parties to make submissions as amicus curiae. It granted the petitioners an opportunity to apply to make amicus curiae submissions.
The tribunal stated that it had to weigh three criteria when considering whether to allow amicus curiae submissions: 1) the appropriateness of the subject matter of the case; 2) the suitability of a given nonparty to act as amicus curiae; and 3) the procedure by which the amicus submission is made and considered. It found that the case involved matters of public interest because its outcome would affect the water distribution and sewage system of Buenos Aires and involved complex public and international law questions. It also stated that expertise, experience and independence were the important factors in assessing the suitability of a nonparty to act as an amicus curiae. On December 1, 2006, the Petitioners requested to make a single, joint amicus submission and requested access to all the documents produced in the arbitration.
In an order February 12, 2007 (the Order), the tribunal granted Petitioners leave to file a single, joint amicus curiae submission in accordance with a number of procedures and requirements. It denied Petitioners access to the arbitration records reasoning that they had sufficient information without such access to fulfill their role of providing pertinent expertise and arguments to the tribunal. The tribunal went on to find that the subject matter of the case continued to be appropriate for amicus submissions even if the outcome of the case would no longer affect the operation of the water and sewage system. The tribunal stated that even if its ruling were limited to monetary claims, it will have to resolve complex public and international law questions, including human rights and that the outcome could affect how water and sewage systems are operated. The tribunal also found that (i) the availability of another forum was irrelevant, (ii) the Petitioners did not have to present new facts but could provide arguments, perspectives, and expertise that may relate to law, facts or the application of law to facts, and (iii) granting the Petition would not impede the progress of the case. In order to ensure that the submission would not be disruptive to the proceedings or unduly burden the parties, the tribunal imposed specific procedural requirements. On several occasions, the tribunal refers to and quotes the new Rule 37(2) of the revised ICSID Arbitration Rules (effective April 10, 2006) but states that while it is in accord with the reasoning of the tribunal, it does not apply to this case.
United States: Int'l Thunderbird Gaming Corporation v. United Mexican States (D.D.C. February 14, 2007)
Click here for document. (Approximately 8 pages).
After receiving an opinion from Mexican government officials (the Opinion) that entertainment machines not involving luck or gambling would be permissible for commercial use, Thunderbird Gaming Corporation (Thunderbird) opened gaming facilities in Mexico. These gaming facilities offered entertainment machines that did involve luck. Shortly after their establishment, Mexican authorities closed the gaming facilities. Thunderbird filed a request for arbitration pursuant to the North American Free Trade Agreement. The hearings were held in Washington and the tribunal issued an award in favor of Mexico, with costs and partial fees.
Thunderbird then brought a petition in the District Court for the District of Columbia (the Court) to vacate the arbitration award arguing that the arbitral tribunal had acted in manifest disregard of the law. Mexico made a motion for the confirmation, recognition and enforcement of the award. The Court denied Thunderbirds petition and granted Mexicos motion for confirmation.
In its opinion, the Court states that judicial review of arbitration awards is extremely limited and that it may vacate the award only if Thunderbird establishes that one of the limited circumstances enumerated in the Federal Arbitration Act applies or that the arbitrator acted in manifest disregard of the law. The Court goes on to specify that in order to get an arbitration award vacated on the later ground, a party must establish that (i) the arbitrators knew of a governing legal principle yet refused to apply it or ignored it altogether and (ii) the law ignored was well defined, explicit and clearly applicable.
Thunderbird argues that the arbitration panel acted in manifest disregard of the law when applying the burden-of-proof standards that it adopted. The standards adopted required Thunderbird to provide sufficient evidence of a prima facie case of a violation of international law before the burden of proof would be shifted to Mexico. Thunderbirds claim was essentially one of detrimental reliance. The Court states that because Thunderbirds machines differed from those described in its request for the Opinion, a showing of detrimental reliance had not been made. The Court concludes that as the arbitral panel determined that Thunderbird had not met its initial burden of showing a violation of international law, there was no need for rebuttal evidence from Mexico. The Court goes on to reject Thunderbirds additional arguments.
International Law In Brief (ILIB) - Copyright 2007 - The American Society of International Law (ASIL)
Author: Susan Notar with the assistance of Tina Hoffman
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