• United Nations Conference on Trade and Development, Latest Developments in Investor-State Dispute Settlement (March 2010)

United States Supreme Court

• Abbott v. Abbott (May 17, 2010)

Supreme Court of Canada

• Yugraneft Corp. v. Rexx Management Corp. (May 20, 2010)

Extraordinary Chambers in the Courts of Cambodia

• Decision on the Appeals Against the Co-Investigative Judges Order on Joint Criminal Enterprise (JCE) (May 20, 2010)

• Australia to Commence Legal Action Against Japan Over Annual Whaling Hunt in the Antarctic (May 28, 2010)

United Nations Conference on Trade and Development, Latest Developments in Investor-State Dispute Settlement (March 2010)

Click here for document (approximately 16 pages)

The United Nations Conference on Trade and Development has issued a report on the latest developments in investor-state dispute settlement. The report summarizes the developments for the year 2009, listing the number of cases filed, the venues where the claims were initiated, the respondent countries, and the substantive and procedural issues adjudicated.

According to the report, the most important decisions issued in 2009 focused on the definition of investment, most favored nation (MFN) treatment, expropriation, compensation, fair and equitable treatment, and protection and security.

The report is a useful resource for those interested in international dispute settlement and provides a comprehensive review of the most important cases litigated in 2009.

United States Supreme Court

Abbott v. Abbott (May 17, 2010)

Click here for document (approximately 49 pages)

The United States Supreme Court ruled, six votes to three, that a parent has a right of custody under the Hague Convention on the Civil Aspects of International Child Abduction (Convention) if the parent has a ne exeat right, a right to consent before the child can be removed from a country by the other parent. The Court held that ruling otherwise would render the Convention, which protects the rights of minor children, “meaningless.” The petitioner, Timothy Abbott, asked the Supreme Court to review the Fifth Circuit’s ruling that a ne exeat right did not constitute the right of custody required under the Convention.

Mr. and Ms. Abbott moved from the United States to Chile and separated. The Chilean courts granted Ms. Abbott full custody rights, including the right to “daily care and control of their minor son.” The courts granted the father visitation rights and the ne exeat right to consent before Ms. Abbott could take the son outside of Chile. Without first obtaining permission from the father or the Chilean courts, Ms. Abbott brought her son to Texas. Mr. Abbott sued, seeking an order that the son be returned to Chile. Both the district court and the Fifth Circuit held in favor of Ms. Abbott.

The main question before the Supreme Court was whether the Convention recognizes a ne exeat right to be a “right of custody,” thus allowing the father to decide whether his child can be removed from a country. The Court relied on the text of the Convention, concluding that the ne exeat right is “best classified as ‘joint right of custody’” under Article 3(a), which in turn “include[s] rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.” The Court recognized that this broad reading “does not fit within traditional physical custody notions” but added that this argument was irrelevant as “the Convention’s definition of ‘rights of custody’ controls.”

The Court also stressed that the uniform reading and application of the Convention would be in the interest of the child so as to limit domestic and regional interpretations of treaty language.

Supreme Court of Canada

Yugraneft Corp. v. Rexx Management Corp. (May 20, 2010)

Click here for document (approximately 44 pages)

The Supreme Court of Canada ruled that the application for recognition of a foreign arbitral award by a Russian company was time barred under the two-year limitation period in effect in Alberta, Canada. The Court recognized that Alberta was required to honor and enforce eligible foreign arbitral awards under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Convention) and the United Nations Model Law on International Commercial Arbitration, incorporated into Canadian law through the International Commercial Arbitration Act. However, because the Convention allowed contracting states to impose local time limits—in Alberta, the time limit was two years for causes of action not considered judgments or court orders—the Russian company, which had applied for enforcement four years after the original arbitral award was issued, had filed too late.

The Russian company had purchased oil-field operations from an Alberta company. A contractual dispute between the parties led to the issuance of an award by the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation in favor of the Russian company in September 2002. However, the Russian company delayed applying for the recognition of the award until January 2006, almost four years after the original award was issued. The lower court ruled that the application was time-barred. The Russian company appealed to the Court of Appeal, which upheld the lower court’s ruling, and this judgment was affirmed by the Supreme Court.

Extraordinary Chambers in the Courts of Cambodia

Decision on the Appeals Against the Co-Investigative Judges Order on Joint Criminal Enterprise (JCE) (May 20, 2010)

Click here for document (approximately 69 pages)

The Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC), in reviewing an appeal filed by five defendants charged with crimes against humanity and grave breaches of the Geneva Conventions, has ruled that the extended form of joint criminal enterprise (JCE III) was not part of customary international law during 1975–1979, thus rejecting an earlier decision by the International Criminal Tribunal for the former Yugoslavia (ICTY) holding otherwise.

Joint criminal enterprise (JCE) is a legal doctrine under which individuals belonging to a group may be held individually responsible for crimes committed pursuant to a common plan or purpose. There are three categories of JCE: 1) JCE I exists where participants “act on the basis of a common design or enterprise, sharing the same intent to commit a crime”; 2) JCE II exists where the participants partake “in a criminal plan that is implemented in an institutional framework . . . involving an organized system of ill-treatment” (i.e., an interment camp); and 3) JCE III, the broadest of the three categories, “exists where one of the participants engages in acts that go beyond the common plan” but the acts are “natural and foreseeable consequences” of the initial common plan.

The Pre-Trial Chamber, dismissing the defendants’ argument to the contrary, held that there is “no doubt that JCE I and JCE II were recognized forms of responsibility in customary international law” during 1975–1979. However, reviewing the key ICTY judgment in Prosecutor v. Tadic, which had pronounced that JCE III was part of customary international law, the Pre-Trial Chamber concluded that the “authorities relied upon in Tadic” did not “constitute a sufficiently firm basis to conclude that JCE III formed part of customary international law at the time relevant.”

Several scholars have applauded the ECCC Pre-Trial Chamber for not following the ICTY precedent on JCE III. See, for example, a recent blog post at the Opinio Juris.

Australia to Commence Legal Action Against Japan Over Annual Whaling Hunt in the Antarctic (May 28, 2010)

Click here for press release (approximately 1 page)

According to a BBC News press release, Australia has stated that it plans on commencing legal action at the International Court of Justice against Japan over Japan’s whaling in the Antarctic. The countries allegedly disagree about the practice—Australia calling it a “violation of an international ban on commercial whaling,” and Japan arguing that “the hunt is carried out for scientific research purposes.”