dispute settlement report_pil
TRANSCRIPT
-
7/29/2019 Dispute Settlement Report_pil
1/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
-
7/29/2019 Dispute Settlement Report_pil
2/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
What is a
dispute?
-
7/29/2019 Dispute Settlement Report_pil
3/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
a dispute exists when oneState claims that another Stashould behave in a certainmanner and that claim isrejected by the latter. (KELSE
-
7/29/2019 Dispute Settlement Report_pil
4/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
A dispute is a contest of somespecificity,
the resolution of which has some
practical effect on the relationsbetween the parties.(MALONE)
-
7/29/2019 Dispute Settlement Report_pil
5/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
Dispute isa disagreement on a point oflaw or fact,
a conflict of legal views or ofinterests between two persons.
-
7/29/2019 Dispute Settlement Report_pil
6/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
An international dispute, in otherwords, is an actual disagreementbetween states regarding the
conduct to be taken by one of thefor the protection or vindication othe interests of the other.
-
7/29/2019 Dispute Settlement Report_pil
7/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
JURISPRUDENCE
The Maurommatis PalestineConcessions, Greece vs. Great
Britain,
August 30, 1924, PCIJ , Ser. B., No
3, 1924
-
7/29/2019 Dispute Settlement Report_pil
8/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
Would a suit brought by aState in behalf of one of itsnationals against another
State constitute aninternational legal disputebetween the two States?
-
7/29/2019 Dispute Settlement Report_pil
9/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
This question was answeredin the affirmative by thePermanent Court of
International Justice in theMavrommatis PalestineConcessions Case
-
7/29/2019 Dispute Settlement Report_pil
10/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
In the said case, Greece isasserting its own rights byclaiming from the Government o
Great Britain an indemnity on theground that M. Mavrommatis, onof its subjects,
-
7/29/2019 Dispute Settlement Report_pil
11/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
has been treated by the Palestinor British authorities in a manneincompatible with certain
international obligations whichthey were bound to observe.
-
7/29/2019 Dispute Settlement Report_pil
12/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
In the case of Mavrommatisconcessions, it is true that thedispute was at first between a
private person and a Statei.e.,between M. Mavrommatis andGreat Britain.
-
7/29/2019 Dispute Settlement Report_pil
13/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
Subsequently, the GreekGovernment took up the case.The dispute then entered upon
new phase; it entered thedomain of International Law, abecame a dispute between twoStates.
-
7/29/2019 Dispute Settlement Report_pil
14/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
The Permanent Courtof International
Justice ruled that,
-
7/29/2019 Dispute Settlement Report_pil
15/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
Once a State has taken up acase on behalf of one of itssubjects before an internation
tribunal, in the eyes of the lattthe State is sole claimant.
-
7/29/2019 Dispute Settlement Report_pil
16/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
The fact that Great Britain andGreece are the opposing Partiesto the dispute arising out of the
Mavrommatis concessions issufficient to make it a disputebetween two States.
-
7/29/2019 Dispute Settlement Report_pil
17/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
Where the disagreement hasnot yet ripened into a full-blown conflict or the issues
have not yet been sufficientlyformulated and defined, thereis what is known as asituation.
Nota bene:
-
7/29/2019 Dispute Settlement Report_pil
18/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
therefore, situation is,the initial stage of a
dispute.
-
7/29/2019 Dispute Settlement Report_pil
19/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
A dispute is LEGAL ifit involves justiciable rightsbased on law or fact
susceptible of adjudication bya judicial or arbitral tribunal.
-
7/29/2019 Dispute Settlement Report_pil
20/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
An example isa conflict on theinterpretation of a treaty
or the ascertainment of theboundaries of adjacent
states.
-
7/29/2019 Dispute Settlement Report_pil
21/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
A dispute is POLITICAL if itcannot be decided by legalprocesses on the basis of the
substantive rules ofinternational law.
Why?
-
7/29/2019 Dispute Settlement Report_pil
22/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
Because the differences ofthe parties spring fromanimosities in their mutual
attitudes rather than froman antagonism of legalrights.
-
7/29/2019 Dispute Settlement Report_pil
23/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
On the claim of thePhilippines on the Spratleys.
1. Is there a dispute or only a
situation?2. Is it legal or political?
-
7/29/2019 Dispute Settlement Report_pil
24/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
How can a
dispute besettled?
-
7/29/2019 Dispute Settlement Report_pil
25/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
Disputes are required to be
settled, conformably to one ofthe basic principles of theUnited Nations, by peaceful
means in such manner thatinternational peace and securityand justice, are notendangered.
P ifi U i it N th Phili i
-
7/29/2019 Dispute Settlement Report_pil
26/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
What is the role of theUnited Nations in the
settlement ofinternational
disputes?
P ifi U i it N th Phili i
-
7/29/2019 Dispute Settlement Report_pil
27/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
United Nations CharterArticle 1 (1)
Article 2 (3)
Article 33 (1)answered the question!
Panpacific Uni ersit North Philippines
-
7/29/2019 Dispute Settlement Report_pil
28/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
To maintain international peace andsecurity, and to that end: to takeeffective collective measures for th
prevention and removal of threats tthe peace, and for the suppression acts of aggression or other breache
of the peace,
Article 1 (1)
Panpacific University North Philippines
-
7/29/2019 Dispute Settlement Report_pil
29/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
and to bring about by peacefulmeans, and in conformity with theprinciples of justice and internation
law, adjustment or settlement ofinternational disputes or situationswhich might lead to a breach of the
peace;
Article 1 (1)
Panpacific University North Philippines
-
7/29/2019 Dispute Settlement Report_pil
30/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
All Members shall settle theirinternational disputes bypeaceful means in such a
manner that international peaceand security, and justice, arenot endangered.
Article 2 (3)
Panpacific University North Philippines
-
7/29/2019 Dispute Settlement Report_pil
31/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
The parties to any dispute, t
continuance of which is liketo endanger the maintenanc
of international peace andsecurity, shall, first of all, se
a solution by
Article 33 (1)
Panpacific University North Philippines
-
7/29/2019 Dispute Settlement Report_pil
32/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
negotiation, enquiry, mediation,
conciliation, arbitration, judicialsettlement, resort to regionalagencies or arrangements, orother peaceful means of their owchoice. (will be discussed later)
Article 33 (1)
Panpacific University North Philippines
-
7/29/2019 Dispute Settlement Report_pil
33/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
May a member of theUnited Nations bringa dispute to the
attention of theGeneral Assembly?
Panpacific University North Philippines
-
7/29/2019 Dispute Settlement Report_pil
34/141
Panpacific University North Philippines
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
U.N. Charter, Art. 35 [1]
Any member of the UnitedNations may bring any dispute,or any situation of the nature
referred to in Article 34, to theattention of Security Council orof General Assembly .
Panpacific University North Philippines
-
7/29/2019 Dispute Settlement Report_pil
35/141
a pac c U e s ty o t pp es
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
U.N. Charter, Art. 34
The Security Council may investigate adispute, or any situation which might leto international friction or give rise to adispute, in order to determine whether
continuance of the dispute or situation likely to endanger the maintenance ofinternational peace and security.
Panpacific University North Philippines
-
7/29/2019 Dispute Settlement Report_pil
36/141
p y pp
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
But, what happened to Thinvasion of Iraq by thecombined forces of the
United States, Britain andAustralia ?
Panpacific University North Philippines
-
7/29/2019 Dispute Settlement Report_pil
37/141
p y pp
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
The invasion provoked world-wide protest le
by France, Russia and China, all members othe Big Five. They contended that the attack
was done without authorization from the
Security Council which wanted to give the UN
inspection team more time to look for theweapons of mass destruction that US Presid
George W. Bush insisted the Iraqi governme
was concealing.
Panpacific University North Philippines
-
7/29/2019 Dispute Settlement Report_pil
38/141
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
Unable to get UN permission, the United Sta
nevertheless began bombarding Iraq, invokinan earlier inconclusive resolution of the Secu
Council adopted after the terrorist attacks in
country on September 11, 2002. The consen
in legal quarters dismissed such resolution aheld that the United States needed another
resolution categorically calling for armed
sanction against Iraq.
Panpacific University North Philippines
-
7/29/2019 Dispute Settlement Report_pil
39/141
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
The Iraqi crisis has raised questions
about the effectiveness of the SecurCouncil in maintaining international
peace and security and the practical
value of the rule requiring theunanimity of the Big Five in deciding
non-procedural questions.
Panpacific University North Philippines
-
7/29/2019 Dispute Settlement Report_pil
40/141
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
The threatened veto by France of the
US proposal for the immediateinvasion of Iraq caused the United
States to go it alone and may have
demonstrated the impotence of thUnited Nations in enforcing thepurposes and principles defined i
its Charter.
Panpacific University North Philippines
-
7/29/2019 Dispute Settlement Report_pil
41/141
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
Panpacific University North Philippines
-
7/29/2019 Dispute Settlement Report_pil
42/141
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
May a state which is notmember of the UnitedNations bring a dispute tothe attention of the SecurityCouncil or of the GeneralAssembly?
Panpacific University North Philippines
-
7/29/2019 Dispute Settlement Report_pil
43/141
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
A non-member state may bring to the
attention of the Security Council or theGeneral Assembly any dispute providedthat:
1. It is a party to the dispute; and2. It accepts in advance, for the purpos
of the dispute, the obligations ofpacific settlement provided in theCharter.
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
44/141
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
What are the powers ofthe General Assemblywith respect to the
dispute that are broughtto its attention?
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
45/141
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
The General Assembly withrespect to the disputes that ithears are limited to establishingfact-finding missions andmaking recommendations,
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
46/141
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
but although the actions of the
General Assembly may havesignificant political influences,state are under no legal
obligation to cooperate with thefact-finding missions or to followrecommendations.
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
47/141
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
What are the powers ofthe Security Councilwith respect to the
disputes that arebrought to its attention?
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
48/141
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
Under Art. 34, the Security Council
may investigate any dispute inorder to determine whether thecontinuance of the dispute or
situation is likely to endanger themaintenance of international peaceand security and if so,
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
49/141
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
under Art. 37, its shall decide
whether to take appropriateaction or to recommend suchterms of settlement as it mayconsider appropriate.
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
50/141
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
NON JUDICIALMETHODS
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
51/141
COLLEGE OF LAW
3/25/2013LAW 226 - Public International Law
A. NEGOTIATION,
(generally the first step) thediscussion undertaken by theparties themselves of their
respective claims andcounterclaims with a view totheir just and orderly adjustment
-
7/29/2019 Dispute Settlement Report_pil
52/141
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
53/141
3/25/2013LAW 226 - Public International Law
B. INQUIRY - is an
investigation of the points inquestion, on the theory thattheir elucidation will contributeto the solution of thedifferences between theparties.
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
54/141
3/25/2013LAW 226 - Public International Law
The U.N. is empowered to call the
parties concerned to explain theirposition on a dispute and mayattempt to narrow their differences,
reconcile their opposing views and ifnecessary recommend a just and faisolution.
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
55/141
3/25/2013LAW 226 - Public International Law
In the Dogger Bank Case, Russian
vessels fired in a fog on theEnglish fishing fleet off DoggerBank during the Russo-Japanese
War and caused the death of twofishermen, injuries to others andconsiderable destruction of
property.
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
56/141
3/25/2013LAW 226 - Public International Law
Russia maintained that the firing wasdue to the approach of Japanesetorpedo boats, and a commission ofinquiry was created to verify this claimThe finding was that there were notorpedo boats present at the time ofthe incident and, as a result, Russiaagreed to pay 65,000 to Great Britai
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
57/141
3/25/2013LAW 226 - Public International Law
The US and Chile in 1992-93 set up
an Enquiry Commission todetermine the amount of damagesto be paid to the US by Chile for
allegedly killing two persons inWashington by Chilean intelligencofficers and the dispute was settle
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
58/141
3/25/2013LAW 226 - Public International Law
C. GOOD OFFICES - is method by
which a third party attempts tobring the disputing statestogether in order to enable themto discuss the issues incontention and arrive at anagreement.
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
59/141
3/25/2013LAW 226 - Public International Law
This is usually employed when
the parties are no longer onspeaking terms, that is, when thehave severed diplomatic relations
or have actually commencedhostilities.
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
60/141
3/25/2013LAW 226 - Public International Law
This is referred to as quiet diplomacy
since the process often involvesentrusting the dispute to personalitieswith special qualification on whom bo
parties agree. This might involve, forexample, heads of State or theSecretary-General of the UnitedNations, or their designees
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
61/141
3/25/2013LAW 226 - Public International Law
The Russo-Japanese War, for
example, was terminated through thegood offices of President TheodoreRoosevelt of the United States who
succeeded in bringing the partiestogether to the conference table forthe conclusion of a negotiatedpeace.
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
62/141
3/25/2013LAW 226 - Public International Law
D. MEDIATION like good offices,
mediation is an adjunct ofnegotiation, but with the mediatoras an active participant, authorized,
and even expected, to advance hisown proposals and to interpret, aswell as to transmit, each partys
proposals to each other.
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
63/141
3/25/2013LAW 226 - Public International Law
The third party does not merely
provide the opportunity for theantagonists to negotiate but alsoactively participates in their
discussions in order to reconciletheir conflicting claims and appeasetheir feelings of resentment.
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
64/141
3/25/2013LAW 226 - Public International Law
In 1978, U.S. President Jimmy Carter
mediated between Egypt and Israel aachieved the Camp David AgreemenMarch 1979. Under the AgreementEgypt recognized diplomatically Israand in return Israel withdrew its troofrom Sinai Peninsula, occupied byIsrael in the 1967 war
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
65/141
3/25/2013LAW 226 - Public International Law
E. CONCILIATION a method
that combines the characteristicsof both enquiry and mediation.While mediation is ordinarily
carried out by one person,conciliation is usually conductedby an organization
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
66/141
3/25/2013LAW 226 - Public International Law
(ASEAN or NATO) or by a group of
States
(Malaysia, Bangladesh and Pakistan
were given the task by OIC to brokerpeace between Iran and Iraq warduring the 80s)
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
67/141
3/25/2013LAW 226 - Public International Law
QUASI-JUDICIALMETHODS/
ARBITRATION
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
68/141
3/25/2013LAW 226 - Public International Law
ARBITRATION - is the solution
of a dispute by an impartial thiparty, usually a tribunal createby the parties themselves unda charter known as thecompromise,
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
69/141
3/25/2013LAW 226 - Public International Law
which will provide for, among
others, the composition of thebody and the manner of theselection of its members, its
rules of proceedings andsometimes even the law to be
applied by it,
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
70/141
3/25/2013LAW 226 - Public International Law
and the issues of fact or law to be
resolved. Unlike in conciliation, theproceedings are essentially judicialand the awards is, by previousagreement, binding on the parties tothe dispute.
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
71/141
3/25/2013LAW 226 - Public International Law
This method is similar tojudicial
settlement not only in the nature ofthe proceedings and the bindingcharacter of the decisions but also inthe fact that the disputes submittedfor adjudication are legal rather thanpolitical.
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
72/141
3/25/2013LAW 226 - Public International Law
They differ inthe followingpoints:
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
73/141
3/25/2013LAW 226 - Public International Law
1. The judicial tribunal is,
generally speaking, a pre-existing and permanent bodywhereas the arbitral tribunal in
an ad hoc body created andfilled by the parties to thedispute themselves.
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
74/141
3/25/2013LAW 226 - Public International Law
2. Jurisdiction in judicial
settlement is usuallycompulsory whereassubmission to arbitration is
voluntary.
Panpacific University North Philippines
COLLEGE OF LAW
Th l li d b th t ib
-
7/29/2019 Dispute Settlement Report_pil
75/141
3/25/2013LAW 226 - Public International Law
3. The law applied by the tribuna
in judicial settlement isindependent of the will of theparties but may be limited by
them in arbitrationproceedings.
Panpacific University North Philippines
COLLEGE OF LAW
judicial settlement arbitrationTRIBUNAL
-
7/29/2019 Dispute Settlement Report_pil
76/141
3/25/2013LAW 226 - Public International Law
pre-existing and
permanent body
created and filled by
parties to the disputhemselves
JURISDICTION
compulsory Voluntary submiss
LAW APPLICABLE
independent of the will of
the parties
may be limited by t
parties
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
77/141
3/25/2013LAW 226 - Public International Law
ADVANTAGES ofarbitration as a methoof settlement ofdisputes
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
78/141
3/25/2013LAW 226 - Public International Law
1. It is more conclusive than the
other forms of non-judicialdispute settlement because thdecisions of the arbitral panels
are binding upon the parties;
Panpacific University North Philippines
COLLEGE OF LAW
Th di i i i
-
7/29/2019 Dispute Settlement Report_pil
79/141
3/25/2013LAW 226 - Public International Law
2. The disputing parties retain
greater control in the arbitratioprocess because they appointthe arbitrators;
Panpacific University North Philippines
COLLEGE OF LAW
Th ti d i t th
-
7/29/2019 Dispute Settlement Report_pil
80/141
3/25/2013LAW 226 - Public International Law
3. The parties may designate the
procedures and the laws to beapplied;
4. Arbitration is less formal and
less contentious thanadjudication; and
Panpacific University North Philippines
COLLEGE OF LAW
B th th bit ti di
-
7/29/2019 Dispute Settlement Report_pil
81/141
3/25/2013LAW 226 - Public International Law
5. Both the arbitration proceedin
and decisions can be keptconfidential, a great advantagein dispute regarding sensitive
matters.
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
82/141
3/25/2013LAW 226 - Public International Law
DISADVANTAGES ofarbitration as a methoof settlement ofdisputes
Panpacific University North Philippines
COLLEGE OF LAW
If th ti d t
-
7/29/2019 Dispute Settlement Report_pil
83/141
3/25/2013LAW 226 - Public International Law
1. If the parties do not
specify procedures,arbitration may be very
cumbersome and time-consuming process;
Panpacific University North Philippines
COLLEGE OF LAW
A bit ti l d t
-
7/29/2019 Dispute Settlement Report_pil
84/141
3/25/2013LAW 226 - Public International Law
2. Arbitration panels do not
have authority of courts conduct discovery or
subpoena witnesses; an
Panpacific University North Philippines
COLLEGE OF LAW
Th ti th l
-
7/29/2019 Dispute Settlement Report_pil
85/141
3/25/2013LAW 226 - Public International Law
3. The parties themselves
pay for the entire cost ofthe arbitration.
Panpacific University North Philippines
COLLEGE OF LAW
V lid d f t
-
7/29/2019 Dispute Settlement Report_pil
86/141
3/25/2013LAW 226 - Public International Law
Valid defenses tothe enforcement of
an arbitral award
Panpacific University North Philippines
COLLEGE OF LAW
As a rule arbitral awards are binding
-
7/29/2019 Dispute Settlement Report_pil
87/141
3/25/2013LAW 226 - Public International Law
As a rule, arbitral awards are bindingon the parties. However, Article V ofthe United Nations Conventions of thRecognition and Enforcement ofForeign Arbitral Awards (The New YoConvention), adopted in June 10, 195provides the following defenses to thenforcement of an arbitral award:
Panpacific University North Philippines
COLLEGE OF LAW
The parties to the
-
7/29/2019 Dispute Settlement Report_pil
88/141
3/25/2013LAW 226 - Public International Law
a) The parties to the
agreement were, under tlaw applicable to them,
under some incapacity;
Panpacific University North Philippines
COLLEGE OF LAW
b) The agreement is not valid
-
7/29/2019 Dispute Settlement Report_pil
89/141
3/25/2013LAW 226 - Public International Law
b) The agreement is not valid
under the law agreed upon parties, or, failing anyindication thereon, under th
law of the country where theaward was made;
Panpacific University North Philippines
COLLEGE OF LAW
) The party against whom the
-
7/29/2019 Dispute Settlement Report_pil
90/141
3/25/2013LAW 226 - Public International Law
c) The party against whom the
award is invoked was not giveproper notice of theappointment of the arbitrator o
of the arbitration proceedings was otherwise unable to presethis case;
Panpacific University North PhilippinesCOLLEGE OF LAW
d) The award deals with a
-
7/29/2019 Dispute Settlement Report_pil
91/141
3/25/2013LAW 226 - Public International Law
d) The award deals with a
difference not contemplated byor not falling within the terms othe submission to arbitration, o
it contains decisions on matterbeyond the scope of thesubmission to arbitration;
Panpacific University North PhilippinesCOLLEGE OF LAW
e) The composition of the arbitral
-
7/29/2019 Dispute Settlement Report_pil
92/141
3/25/2013LAW 226 - Public International Law
e) The composition of the arbitral
authority or the arbitralprocedure, was not inaccordance with the agreemen
of the parties;
Panpacific University North PhilippinesCOLLEGE OF LAW
f) The award has not yet become
-
7/29/2019 Dispute Settlement Report_pil
93/141
3/25/2013LAW 226 - Public International Law
f) The award has not yet become
binding on the parties, or hasbeen set aside or suspended ba competent authority of the
country in which that award wamade;
Panpacific University North PhilippinesCOLLEGE OF LAW
g) The subject matter of the
-
7/29/2019 Dispute Settlement Report_pil
94/141
3/25/2013LAW 226 - Public International Law
g) The subject matter of the
difference is not capable ofsettlement by arbitration underthe law of that country in which
the award was made;
Panpacific University North PhilippinesCOLLEGE OF LAW
h) The enforcement of the award
-
7/29/2019 Dispute Settlement Report_pil
95/141
3/25/2013LAW 226 - Public International Law
h) The enforcement of the award
would be contrary to the publicpolicy of that country.
Panpacific University North PhilippinesCOLLEGE OF LAW
Let us walk you through a
-
7/29/2019 Dispute Settlement Report_pil
96/141
3/25/2013LAW 226 - Public International Law
Let us walk you through a
case where the Philippineswas involved.
Panpacific University North PhilippinesCOLLEGE OF LAW
Case:
-
7/29/2019 Dispute Settlement Report_pil
97/141
3/25/2013LAW 226 - Public International Law
Fraport v. PhilippinesYear the case was initiated:
2003
Year the award was rendered:2007
Panpacific University North PhilippinesCOLLEGE OF LAW
Country involved:
-
7/29/2019 Dispute Settlement Report_pil
98/141
3/25/2013LAW 226 - Public International Law
y
Philippines
Home country of the investor:
Germany
Panpacific University North PhilippinesCOLLEGE OF LAW
Parties to the dispute:
-
7/29/2019 Dispute Settlement Report_pil
99/141
3/25/2013LAW 226 - Public International Law
p
Fraport AG Frankfurt AirportServices Worldwide v. Republic o
the Philippines (ICSID Case No.ARB/03/25)
Panpacific University North PhilippinesCOLLEGE OF LAW
Type of investment:
-
7/29/2019 Dispute Settlement Report_pil
100/141
3/25/2013LAW 226 - Public International Law
yp
Construction of NAIA terminal 3
Nature of dispute / claim:
Claim arising out of annulment oContract
Panpacific University North PhilippinesCOLLEGE OF LAW
Legal instrument:
-
7/29/2019 Dispute Settlement Report_pil
101/141
3/25/2013LAW 226 - Public International Law
g
Agreement between the FederalRepublic of Germany and theRepublic of the Philippines for th
Promotion and the ReciprocalProtection of Investments
Panpacific University North PhilippinesCOLLEGE OF LAW
Rules / Venues:
-
7/29/2019 Dispute Settlement Report_pil
102/141
3/25/2013LAW 226 - Public International Law
International Center for Settlemeof Investment Dispute (ICSID)Amount sought by investor:
approx US$ 450 million
Panpacific University North PhilippinesCOLLEGE OF LAW
Amount awarded / status of dispute:
-
7/29/2019 Dispute Settlement Report_pil
103/141
3/25/2013LAW 226 - Public International Law
Tribunal lacks jurisdictionArbitrators:
L. Yves Fortier (Chair); Canadia
Bernardo M. Cremades; SpanisW. Michael Reisman, U.S.
Panpacific University North PhilippinesCOLLEGE OF LAW
Decisions rendered:
-
7/29/2019 Dispute Settlement Report_pil
104/141
3/25/2013LAW 226 - Public International Law
Award issued on 16 August 200
Status:
Awarded in favor of the state(Philippines)
Panpacific University North PhilippinesCOLLEGE OF LAW
On 17 September 2003, the Claimant
-
7/29/2019 Dispute Settlement Report_pil
105/141
3/25/2013LAW 226 - Public International Law
filed its request for arbitration with tInternational Centre for Settlement oInvestment Disputes against theRespondent for the resolution of
divergencies having arisen amongstthe parties to this arbitration.
Panpacific University North PhilippinesCOLLEGE OF LAW
The Request was submitted in accordan
-
7/29/2019 Dispute Settlement Report_pil
106/141
3/25/2013LAW 226 - Public International Law
with the ICSID arbitration provisions
contained in the Treaty, in particularparagraph 2 of Article 9 of the BIT entitle"Settlement of Disputes between a
Contracting State and an Investor ofanother Contracting State":
Panpacific University North PhilippinesCOLLEGE OF LAW
"If such divergencies cannot be
-
7/29/2019 Dispute Settlement Report_pil
107/141
3/25/2013LAW 226 - Public International Law
g
settled according to the provisionof paragraph (1) of this Articlewithin six months from the date o
request for settlement, the investconcerned may submit the disputo:
Panpacific University North PhilippinesCOLLEGE OF LAW
[] (b) the International Centre fo
-
7/29/2019 Dispute Settlement Report_pil
108/141
3/25/2013LAW 226 - Public International Law
[ ] ( )
the Settlement of InvestmentDisputes through conciliation orarbitration."
Panpacific University North PhilippinesCOLLEGE OF LAW
For the reasons set forth herein
-
7/29/2019 Dispute Settlement Report_pil
109/141
3/25/2013LAW 226 - Public International Law
and pursuant to Rules 41(5) and47(1)(i) and (j) of the ArbitrationRules and Article 61(2) of the
Convention, a majority of theArbitral Tribunal decides:
Panpacific University North PhilippinesCOLLEGE OF LAW
1. To accept the objection to the
-
7/29/2019 Dispute Settlement Report_pil
110/141
3/25/2013LAW 226 - Public International Law
jurisdiction of the InternationaCentre for Settlement ofInvestment Disputes raised by
the Republic of the Philippines
Panpacific University North PhilippinesCOLLEGE OF LAW
2. To declare that the Centre doe
-
7/29/2019 Dispute Settlement Report_pil
111/141
3/25/2013LAW 226 - Public International Law
not have jurisdiction to hear thdispute and that this ArbitralTribunal is not competent to
resolve it;
Panpacific University North PhilippinesCOLLEGE OF LAW
3. To dismiss the claim of Frapor
-
7/29/2019 Dispute Settlement Report_pil
112/141
3/25/2013LAW 226 - Public International Law
AG Frankfurt Airport ServicesWorldwide; and
Panpacific University North PhilippinesCOLLEGE OF LAW
4. To order that each party shall bear f ll it l l t d th t th
-
7/29/2019 Dispute Settlement Report_pil
113/141
3/25/2013LAW 226 - Public International Law
full its own legal costs and that the
payment of the fees and expenses the members of the Arbitral Tribunaand of the administrative fees for th
use of the Centre shall be paid inequal share by each party.
Panpacific University North PhilippinesCOLLEGE OF LAW
An investor that contravenes the
-
7/29/2019 Dispute Settlement Report_pil
114/141
3/25/2013LAW 226 - Public International Law
law of the Host State of theinvestment must expect to sufferthe consequences prescribed by
law.
Panpacific University North PhilippinesCOLLEGE OF LAW
The principle of legality in
-
7/29/2019 Dispute Settlement Report_pil
115/141
3/25/2013LAW 226 - Public International Law
investment arbitration, like theprinciples ofpacta sunt servandaand good faith, applies equally to
both Parties.
Panpacific University North PhilippinesCOLLEGE OF LAW
Indeed, the very purpose of
-
7/29/2019 Dispute Settlement Report_pil
116/141
3/25/2013LAW 226 - Public International Law
investment arbitration is todetermine the legality of theconduct of the Host State and the
investor under the applicable law
Panpacific University North PhilippinesCOLLEGE OF LAW
JUDICIAL METHODS/
-
7/29/2019 Dispute Settlement Report_pil
117/141
3/25/2013LAW 226 - Public International Law
JUDICIAL METHODS/
THE INTERNATIONALCOURTS
Panpacific University North PhilippinesCOLLEGE OF LAW
Judicial settlement is a decision ba Court In the U N system the
-
7/29/2019 Dispute Settlement Report_pil
118/141
3/25/2013LAW 226 - Public International Law
a Court. In the U.N. system, theInternational Court of Justice is aintegral part of the U.N. and theCourt, with seat at The Hague (theNetherlands), decides inter-statesdisputes.
Panpacific University North PhilippinesCOLLEGE OF LAW
States MUST AGREE
-
7/29/2019 Dispute Settlement Report_pil
119/141
3/25/2013LAW 226 - Public International Law
States MUST AGREErefer to the Court for decision.
Panpacific University North PhilippinesCOLLEGE OF LAW
JURISDICTION of
-
7/29/2019 Dispute Settlement Report_pil
120/141
3/25/2013LAW 226 - Public International Law
JURISDICTION ofthe International
Court of Justice
Panpacific University North PhilippinesCOLLEGE OF LAW
The jurisdiction of the Courtcomprises all case which the
-
7/29/2019 Dispute Settlement Report_pil
121/141
3/25/2013LAW 226 - Public International Law
comprises all case which theparties refer to it and all mattersspecially provided for in the
Charter of the United Nations or itreaties and conventions in force(ICJ Statute, Art.36[1])
Panpacific University North PhilippinesCOLLEGE OF LAW
LIMITATIONS on the
-
7/29/2019 Dispute Settlement Report_pil
122/141
3/25/2013LAW 226 - Public International Law
jurisdiction of theInternational Court of
Justice(ICJ).
Panpacific University North PhilippinesCOLLEGE OF LAW
1. Only states may be parties in
-
7/29/2019 Dispute Settlement Report_pil
123/141
3/25/2013LAW 226 - Public International Law
contentious cases before theCourt (ICJ Statute, Art. 34); an
2. The consent of the states is
needed for the court to acquirejurisdiction (Id., Art. 36)
Panpacific University North PhilippinesCOLLEGE OF LAW
Art. 36
-
7/29/2019 Dispute Settlement Report_pil
124/141
3/25/2013LAW 226 - Public International Law
The court is competent to entertaa dispute only if the statesconcerned have accepted its
jurisdiction in one or more of thefollowing ways:
Panpacific University North PhilippinesCOLLEGE OF LAW
1. By the conclusion between theof a special agreement
-
7/29/2019 Dispute Settlement Report_pil
125/141
3/25/2013LAW 226 - Public International Law
of a special agreement(compromise) to submit thedispute to the Court
Panpacific University North PhilippinesCOLLEGE OF LAW
2. By virtue of a jurisdiction clause,i e typically when they are partie
-
7/29/2019 Dispute Settlement Report_pil
126/141
3/25/2013LAW 226 - Public International Law
i.e., typically, when they are partie
to a treaty containing a provisionwhereby in the event of adisagreement over its interpretati
or application, one of them mayrefer the dispute to the Court;
Panpacific University North PhilippinesCOLLEGE OF LAW
3. Through the reciprocal effect ofdeclarations made by them under
-
7/29/2019 Dispute Settlement Report_pil
127/141
3/25/2013LAW 226 - Public International Law
declarations made by them under
the Statute whereby each hasaccepted the jurisdiction of theCourt as compulsory in the event
a dispute with another State havimade a similar declaration.
Panpacific University North PhilippinesCOLLEGE OF LAW
Other
-
7/29/2019 Dispute Settlement Report_pil
128/141
3/25/2013LAW 226 - Public International Law
International
Court of Justice
Panpacific University North PhilippinesCOLLEGE OF LAW
1. European Court of Justice (EC
-
7/29/2019 Dispute Settlement Report_pil
129/141
3/25/2013LAW 226 - Public International Law
the Supreme Court of theEuropean
Union
Panpacific University North Philippines
COLLEGE OF LAW
Functions :
a) to examine the legality of Community
-
7/29/2019 Dispute Settlement Report_pil
130/141
3/25/2013LAW 226 - Public International Law
acts and to ensure that Community lawis interpreted and applied uniformly.
b) resolves disputes between Communityinstitutions or between those
institutions and the Member States (oreven between Member Statesthemselves).
Panpacific University North Philippines
COLLEGE OF LAW
2. BENELUX Court of
-
7/29/2019 Dispute Settlement Report_pil
131/141
3/25/2013LAW 226 - Public International Law
JusticeBelgium,
Netherlands and
Luxembourg
Panpacific University North Philippines
COLLEGE OF LAW
Function:
1. promote the uniform
-
7/29/2019 Dispute Settlement Report_pil
132/141
3/25/2013LAW 226 - Public International Law
p
interpretation of common legalrules for which it has becomecompetent (e.g., concerning
trademarks, penalties, motorvehicle insurance, movement ofpersons, and protection of birds).
Panpacific University North Philippines
COLLEGE OF LAW
3. EFTA Court of
-
7/29/2019 Dispute Settlement Report_pil
133/141
3/25/2013LAW 226 - Public International Law
3 Cou t oJustice
Panpacific University North Philippines
COLLEGE OF LAW
the Court of the EFTA States parties
to the European Area Agreement
-
7/29/2019 Dispute Settlement Report_pil
134/141
3/25/2013LAW 226 - Public International Law
to the European Area Agreement
(EEA), disputes between the
contracting Parties, between the
EFTA Surveillance Authority andcontracting Parties,
Panpacific University North Philippines
COLLEGE OF LAW
and between the EFTA Surveillance
Authority and the addressee of a
-
7/29/2019 Dispute Settlement Report_pil
135/141
3/25/2013LAW 226 - Public International Law
Authority and the addressee of a
decision of the authority or a person
directly and individually concerned
such a decision.
Panpacific University North Philippines
COLLEGE OF LAW
4. EUROPEAN
-
7/29/2019 Dispute Settlement Report_pil
136/141
3/25/2013LAW 226 - Public International Law
COURT OFHUMAN RIGHTS
Panpacific University North Philippines
COLLEGE OF LAW
also known as the Strasbourg Court was
established in November 1998 pursuant to the en
-
7/29/2019 Dispute Settlement Report_pil
137/141
3/25/2013LAW 226 - Public International Law
into force of Protocol No. 11 to the EuropeanConvention for the Protection of Human Rights
(1950) establishing a single court sitting fulltime a
replacing the European Commission of Human
Rights (1954) and the European Court of HumanRights (1959). It has its seat in Strasbourg, Franc
Panpacific University North Philippines
COLLEGE OF LAW
The Courts primary function is to
ensure compliance by the High
-
7/29/2019 Dispute Settlement Report_pil
138/141
3/25/2013LAW 226 - Public International Law
ensure compliance by the High
Contracting Parties with their
commitments arising from the
European Convention for theProtection of Human Rights.
Panpacific University North Philippines
COLLEGE OF LAW
The Court hears and decides
complaints of human rights violation
-
7/29/2019 Dispute Settlement Report_pil
139/141
3/25/2013LAW 226 - Public International Law
complaints of human rights violation
allegedly committed by States
Parties, and brought to the Court
either by other States Parties or byindividuals subject to the jurisdiction
of a State Party.
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
140/141
3/25/2013LAW 226 - Public International Law
Panpacific University North Philippines
COLLEGE OF LAW
-
7/29/2019 Dispute Settlement Report_pil
141/141
3/25/2013LAW 226 - Public International Law
ThankYou!!!