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A roundtable of experts from the world of international courts and tribunals discussed the role of agents before tribunals– as representatives of their governments, coordinators of legal teams and strategy, and interacting with the court’s machinery during a case. How do agents balance legal and political considerations, and engage with their own states and with their legal teams? How do strategies differ between inter-state cases and investment disputes? Did judgments or awards in their cases address the essence of the dispute and resolve it? What are international courts and tribunals doing right, and what reform is necessary?
Moderator Professor Nienke Grossman of the University of Baltimore School of Law introduced the panel, including Carlos José Argüello-Gómez, Ambassador of Nicaragua to the Netherlands, a career diplomat and Ambassador to the Netherlands, who has acted for 32 years as Agent for Nicaragua in 12 cases before the ICJ, Pang Khang Chau, Director-General of the International Division in the Singapore Attorney General’s Chambers in Singapore, Lucy Reed, former ASIL president, who has served as Agent, arbitrator and counsel in a wide range of disputes, and Sarah Grimmer, Senior Legal Counsel at the Permanent Court of Arbitration.
1) Who are the Agents?
Argüello began the conversation, recalling how Nicaragua came to bring the Military and Paramilitary Activities case. The Foreign Ministry conceived of the case in 1980-81 and spent years preparing it – the reluctance to move forward ended when the ports were mined. Waiting to bring the case had been fruitful. By the time the US mined Nicaraguan ports, a substantial majority of the Court was convinced that the mining was a violation of international law. Pang then talked about how he came to represent Singapore, working under Singapore’s agent in the Land Reclamation case. Reed said that for most cases involving the US, the State Department Legal Advisor serves as agent; however, the US Agent to the Iran-US Claims Tribunal must be a resident in The Hague, and is selected from State Department lawyers with management and advocacy experience.
Grimmer discussed a PCA internal analysis of its last 24 inter-state cases starting in 1999, including the Abyei dispute. There were approximately 50 agents in the 24 disputes, 90% of whom were high-ranking government officials of that state (two-thirds of whom were ministers—primarily foreign ministers, but also including a prime minister and ministers of justice). In one case, two international law professors of the same nationality as the state served as agent and in two outliers, the agents were private lawyers not nationals of the disputing state. Many cases have co-agents, of which 35% were not nationals of that state, including law professors. Deputy agents are appointed in fewer cases, and tend to be high-ranking officials of the disputing state; very few cases have both a co-agent and as deputy agent. As for counsel in these cases, 90% were not nationals of the disputing state, and included a few international law professors who appear repeatedly. Eight individuals appeared 3 to 7 times, from the UK, the US and Australia. Women are 25% of agents, 20% of co-agents, 35% of deputy agents and 27% of counsel.
2) What do Agents do?
Reed led off by describing the unique role of US Agents at the Iran-US Claims Tribunal. First, the US Agent is the lead US advocate in cases before the Tribunal, or works with a colleague from the Office of the Legal Advisor at State. Second, the US Agent handles administrative manners, including Tribunal budget, finance, staffing and language services. Third, the US Agent maintains contact with the Iranian Agent on policy matters including negotiation of settlements in cases, and fourth, the US Agent advises counsel for private US claimants on litigation strategy and sits in on proceedings to see that the rules are being applied with consistency. Agents have also handled US-Iran negotiations on non-Tribunal issues. Pang said that the agent is the leading point of contact with the tribunal. As Agent for Singapore, Tommy Koh was indispensable as a liaison with the tribunal and at negotiating procedural issues, though the Attorney-General himself was the leader of the team. Where the Attorney-General was the Agent, Pang as his deputy, handled liaison work and negotiated procedural orders and hearing logistics.
Argüello said that while anyone can be named as Agent, as time went on he became the inevitable Agent for Nicaragua in ICJ cases, participating in case workups and decision-making on whether to proceed. He urged that the agent be a lawyer, and be involved from the very beginning. In his view, appointing a co-agent does not make sense—someone has to make the decisions.
Grimmer then commented on the interaction between the agent and the registrar. The registrar keeps the archive of the case (e.g., manages the case record); organizes hearings; site visits and other logistics; handles press releases and relations with the public when the case is public; oversees financial aspects of the case; and acts as liaison for communications between the parties and the tribunal. The registrar may be consulted about how procedural issues have been dealt with before, and the tribunal may ask the registrar to sound out the parties on a ruling it has in mind. Reed agreed that a wise agent has a good relationship with the registrar.
3) Assembling the legal team – what works?
Argüello recalled his early experience in the Military and Paramilitary Activities case, where he began by retaining Abram Chayes – a “fabulous selection”, soon joined by Ian Brownlie, whose first book was on the use of force by states. In January 1984 he decided he needed a French-speaking advocate to reach the Court, and eventually retained Alain Pellet. He worked with the same team in later cases, with specialists as needed, and involving different ministries in Nicaragua as needed. He said the team depends on the type of case. Maritime delimitation cases and other technical issues require experienced technical experts and may require specialist lawyers; it is also important to keep balance and respect both the English and French legal cultures in the Court. Pang said that in Singapore’s first ICJ case, Sovereignty over Pedra Branca/Pula Batu Puteh, Middle Rocks and South Ledge, his office looked at counsel names on ICJ pleadings, talked to people, asked retired ICJ judges for views on counsel, and came up with a list. He attends international law meetings to evaluate potential counsel and whether they will fit with the style of Singapore’s internal legal team.
Grossman mentioned a 2014 EJIL article by Shashank Kumar and Cecily Rose on lawyers appearing before the ICJ 1999-2012 and asked how governments balance their national and foreign counsel on the team. Pang said that Singapore has a large internal legal team; for its ICJ case there were 4 external counsel and an internal team of 6 to 8. In later cases there have been 3 external lawyers and an internal team of 6. Singapore has never had a Singaporean national as external counsel, but could if a person with the right skills were available.
4) Integrating domestic politics and litigation strategy
As Grossman asked how agents deal with domestic politics, Reed said that every ICJ case is “drenched in domestic political issues”. Ministers who act as agents may have to make political statements. The head of the legal team may have to mediate the political issues but there are times when an agent has to say “I have no instructions”. Except, of course, where very significant issues are involved (e.g., jus cogens). If your idea of the law cannot include political compromise, you should not be an agent. Argüello said that an agent must be willing to promote the country's policy. All of his ICJ cases were issues for the nation, not one political party. Even small islands can become a national issue. In the Territorial and Maritime Dispute (Nicaragua v. Colombia), the main issue was maritime delimitation and the disputed islands were a difficult objective from the beginning, but politically, the government had to fight for all of these issues. If he could not have done that, he should have resigned, he said.
5) Are tribunals effective in resolving the underlying disputes?
Grimmer commented that submitting a dispute to a tribunal is especially effective when a dispute concerns a discrete issue between the parties or is the subject of a written compromis, but where larger issues are involved, the arbitration may be just one important piece in the puzzle. The Abyei arbitration was an important litigation set in a broader context. The Eritrea-Ethiopia Boundary Commission had a mandate to delimit and demarcate the boundary; it identified the boundary but the demarcation process required further action from the parties. The ARA Libertad arbitration between Argentina and Ghana was an example where international litigation concluded with an agreed outcome. Argentina instituted UNCLOS arbitral proceedings, and when Ghana’s Supreme Court overturned a lower court's decision and upheld the customary international law position on the immunity of warships, the international litigation naturally came to an end. Pang said that it is important to remember that your opponent will still be your neighbor when the litigation concludes and you must get along. In Singapore’s ICJ dispute against Malaysia, before the judgment the Singapore and Malaysian teams agreed on what to tell the press depending on the outcome, and continued to work with each other afterward. In the Railway Land Arbitration, Singapore and Malaysia agreed with the tribunal that the award would not be posted on the PCA website until the parties had issued a press statement agreed by both governments – so both governments would survive any outcome. Reed remarked that in this $2 billion dispute, the Singapore government announced that it would comply with the award. She also recalled the work of the Eritrea-Ethiopia Claims Commission in resolving claims of violation of international humanitarian law. Ethiopia had a large number of Eritrean POWs detained, which were all released just before the Commission’s hearing on the POW claims, so the Commission process helped solve this problem.
6) Where is reform needed in international courts and tribunals?
Pang said that Singapore’s experience has been good, but in ICJ proceedings, the fact that the judges ask no questions is disconcerting—litigants have no idea whether the memorials have any impact. Traditional arbitration uses the time of the parties and counsel more efficiently, he said. Reed observed that ICJ proceedings, conducted in two languages, are “heavily scripted pieces” but this serves the states and the UN.
Reed refleced on her experience with ad-hoc claims commissions, and said that all too often, the parties involved want to own the process, and end up reinventing the wheel where it would make more sense to take advantage of best practices of other tribunals. She recommended a 2008 study by the International Organization for Migration, Property Restitution and Compensation: Practices and Experiences of Claims Programmes, which collects best practices in setting up and closing down processes to resolve claims.
To improve the process, Argüello suggested shortening the oral phase of ICJ cases. In the US Supreme Court, advocates get a total of 30 minutes of oral argument – but in the ICJ in some cases, oral pleadings took several months with the counsel reading written texts. The oral phase is extremely expensive, with months of fees and hotels for the team. It is important to be seen in court, but oral proceedings could be shorter. This would also facilitate input by those who are competent but are not expert in oral English or French. The Court also does not seem to take into account witness cross-examination; if so, the parties might as well submit all testimony in writing.
Grimmer said that the PCA is a lean organization that can adapt to the needs of disputants. It can prepare bespoke procedural frameworks for each case. The PCA is also broadening its network of host country agreements through which PCA-administered arbitrations can enjoy privileges and immunities in locations in Asia, Africa, Latin America, as well as The Hague.
As the time drew to a close, Grossman thanked the panel for insights into the world of agents and international tribunals, and the session adjourned.
Amy Porges is Principal of an international trade law firm, and teaches international trade law at the Johns Hopkins School of Advanced International Studies.