U.S. District Court for the District of Columbia
Kucinich v. Obama (June 15, 2011)
Click here for complaint (approximately 36 pages); click here for U.S. government document on the Activities in Libya (approximately 32 pages)
Dennis Kucinich, member of the U.S House of Representatives, along with nine other bi-partisan U.S. Representatives, has filed a complaint with the U.S. District Court for the District of Columbia against President Obama and Secretary of Defense, Robert Gates, alleging that the current U.S. use of force in Libya amounts to war, requiring the President to follow certain provisions of the U.S. Constitution.
Specifically, plaintiffs are asking the court to award injunctive and declaratory relief "to protect the Plaintiffs and the country from a stated policy of Defendant Barack Obama, President of the United States, whereby a president may unilaterally go to war in Libya and other countries without the declaration of war from Congress" as required by the U.S. Constitution. Plaintiffs also ask the court to declare that President Obama's decision to use force in Libya violated the War Powers Resolution and the NATO treaty, and that the UN Security Council Resolution cannot override the constitutional role of the U.S. Congress. Finally, they are seeking a declaration that the President is misusing funds appropriated by Congress for other use.
The complaint goes into much detail about the U.S. role in Libya, including President Obama's decision to order U.S. forces to attack armed forces in Libya on March 19, 2011, without prior congressional approval. The main focus is, however, whether or not the U.S. is currently at war with Libya. The plaintiffs believe that the "Libyan operations ordered by President Obama constitute 'war' for the purposes of the . . . Constitution," and since Congress never approved the war, President Obama is violating the U.S. Constitution.
Plaintiffs assert that they, members of Congress, have standing to "challenge a per se violation of Article I of the Constitution as well as the violation of statutory laws governing the commencement and funding of any undeclared war." They also claim that they have standing as taxpayers because taxpayer money is used to continue the war against Libya. (According to the complaint, the Libyan intervention has so far cost the United States $750 million dollars.) While conceding that recent case law limits their right to challenge the president, plaintiffs nonetheless argue that "the violations asserted herein fall within a narrow exception allowing judicial review."
Some have questioned whether the complaint will be successful, but, irrespective of its success, there are a growing number of prominent politicians and scholars opposing the continued U.S. intervention in Libya. The Obama administration, however, continues to assert its right to use force in Libya. Recently, the administration issued a report on the U.S. Activities in Libya detailing its limited role in the hostilities and emphasizing the need to continue its "important role in maintaining and expanding [an] international consensus" with respect to the situation in Libya. The report also addresses the alleged lack of financial transparency with respect to funds used for the operations in Libya, disclosing that the military and humanitarian operations in Libya, from March 19 to June 3, 2011, have cost the United States almost $714 million dollars, with a total projected cost amounting to about $1.1 billion through September 2011.
On June 24, 2011, the U.S. House of Representatives rejected a resolution to authorize the limited use of the U.S. Armed Forces in support of the NATO mission in Libya while also rejecting a resolution limiting the use of funds appropriated to the Department of Defense for U.S. Armed Forces in support of NATO. According to Slate Magazine, on June 28, 0211, the Senate Foreign Relations Committee will hear State Department Legal Advisor Harold H. Koh's view regarding U.S. military operations in Libya.
International Centre for Settlement of Investment Disputes
Two separate decisions on the disqualification of arbitrators have been issued by the International Centre for Settlement of Investment Disputes ("ICSID"). Both decision concluded that the requests for disqualification did not meet the strict requirements of the ICSID Convention on the independence and impartiality of arbitrators.
OPIC Karimum Corp. v. Venezuela, Decision on the Proposal to Disqualify Professor Philippe Sands, Arbitrator (May 5, 2011)
Click here for decision (approximately 20 pages)
In OPIC Karimum Corp. v. Venezuela, the claimant filed a request to disqualify Professor Philippe Sands pursuant to Arbitration Rule 9(1), claiming that his previous multiple appointments by the respondent and respondent's law firm "taint [ed] his independence . . . and indicate[d] a manifest lack of Professor Sands' ability to be relied on for independent judgment as required under Articles 14(1) and 57 of the ICSID Convention."
According to the claimant, the following activities raised serious doubts as to Professor Sands' impartiality:
- Mr. Sands is currently sitting in six pending ICSID cases, three of which came from the Curtis Mallet law firm;
- Mr. Sands has sat in eight treaty arbitrations in the last three years, and five of these appointments came from the respondent or the Curtis Mallet firm;
- Mr. Sands disclosed only nine arbitrations in which he has sat, and five of these came from the respondent or the Curtis Mallet firm.
The panel reviewing the disqualification request first stated that the there is a "relatively high burden for those seeking to challenge ICSID arbitrators." This means that the lack of independence must be "manifest"—a requirement which should be "clearly and objectively established." While multiple appointments "constitute a consideration that must be carefully considered in the context of a challenge," the panel concluded that in this case multiple appointments alone were not enough to "demonstrate the manifest lack of qualities necessary for Claimant's proposal to disqualify to succeed."
Universal Compression Int'l Hld., S.L.U. v. Venezuela, Decision on the Proposal to Disqualify Prof. Brigitte Stern and Prof. Guido Santiago Tawil, Arbitrators (May 20, 2011)
Click here for decision (approximately 32 pages)
In Universal Compression Int'l Hld., S.L.U. v. Venezuela, both the respondent and the claimant challenged the other's appointed arbitrator—Professor Brigitte Stern and Professor Guido Santiago Tawil. Both arbitrators disclosed their past or current relationship to either the parties or the parties' law firms. The issue was whether multiple appointments by the same respondent or law firm, or the prior professional relationship with one of the counsel, were factors strong enough to fulfill the requirement of ICSID Convention Articles 14(1) and 57. Also important in the discussion was the nondisclosure of public information.
After reviewing the relevant appointments and past relationships that could taint the arbitrator's independence, the panel concluded that there is "no basis to indicate that there is a manifest lack of independence or impartiality" on the part of Professor Stern and Professor Tawil.