To prevent automated spam submissions leave this field empty.
On Friday, April 14, an engaging panel discussed and elaborated the bases for jurisdiction in private international disputes.
The panel participants included Carolyn Lamm, a lead counsel in arbitration-related litigation matters and Professor of International Investment Arbitration at the University of Miami School of Law in the White & Case LLM program in International Arbitration; Marta Pertegas, a lawyer with extensive experience on the Hague Convention on recognition and enforcement of foreign judgments; George A. Bermann, a renowned lawyer and the director for the Center for International Commercial and Investment Arbitration (CICIA) at Columbia Law Schooll and Milana Karayanidis, a PhD candidate in Law at Trinity College Dublin.
Carolyn Lamm set the stage for discussion by elaborating on the tensions between choice of law and arbitration. She pointed to the important fact that keeping a balance between state sovereignty and party autonomy has always been challenging, and emphasized the need to maintain state stability while ensuring that party autonomy is respected. It is the responsibility of states to ensure that party autonomy is protected from violation, she emphasized.
Marta Pertegas remarked that civil law and common law should be taken into consideration where there is a dispute between state sovereignty and party autonomy. The courts should make sure that party autonomy is not violated by invoking the established state laws crafted for the protection of party rights. Party interests are sometimes compromised in the broader interest of state or public interest. However, justice needs to be ensured, and it is the duty of courts to ensure that justice.
George Bermann stressed the importance of public interest and mandatory rule of law. Public and private interests come together, though he concurred that sometimes party interests are compromised in favor of the public interest. In such instances, courts have the right to decide, but party autonomy and state sovereignty need to be balanced, and the state should guarantee the protection of investments.
Carolyn Lamm noted that the question of investment versus sovereignty is a complex one in which investors and countries differ in opinion. Investors, particularly multinational companies, in some instances step away from sovereignty. Addressing a question about foreign party representation, she noted that foreign parties can be locally represented, but witnesses are indispensable.
Milana Karayanidis pointed that in the case of a strong party versus a weak party, there is a risk of the rights of the weak party being violated. Due consideration should be given to crafting an equal bargain of power and equality, and both parties’ interest should be respected. Though achieving equality is a challenging task, the court should ensure justice such that all are equal before the law. Immunity from enforcement is another challenge arising from disparities in power between the parties, and enforcement is important.
Ahmad Shah Katawazai is a Research Associate at the Public International Law & Policy Group.