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An ad hoc arbitral tribunal convened pursuant to Article 287 and Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) delivered its award on the merits on August 14, 2015 in Arctic Sunrise (Netherlands/Russia). The award was unanimous on all holdings and included no separate opinions. In addition to establishing the Tribunal’s jurisdiction and admissibility of the claims, the Tribunal also found that Russia had violated its obligations under UNCLOS by detaining the Arctic Sunrise, a Dutch-flagged vessel, and the thirty people (Arctic 30) on board on September 19, 2013; by failing to comply with an earlier order on provisional measures; and by failing to pay its share of the arbitral expenses.
The European Court of Human Rights (ECtHR) in Zakharov v. Russia held that the Russian system of surveillance constituted a violation of Article 8 of the European Convention on Human Rights (ECHR). This decision is not the first judgment concerning surveillance, but it is of note because it is a Grand Chamber judgment in which the ECtHR drew together strands of its existing case law. It comes at a time when national systems of surveillance are the subject of much scrutiny: further cases are pending before the ECtHR.
December 16, 2015, saw the International Court of Justice (ICJ or the Court) render final judgment in the joined cases of Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) (Border Area) and Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v. Costa Rica) (Road). Together, these cases represented an opportunity for the Court to advance and clarify its thinking on the role of environmental impact assessments (EIA) in general international law, as first introduced in its decision in Pulp Mills on the River Uruguay (Argentina v. Uruguay) (Pulp Mills), with both Costa Rica (in Border Area) and Nicaragua (in Road) alleging that the other had failed to carry out an EIA with respect to certain, potentially environmentally harmful, activities. They also raised some interesting questions regarding remedies for the breach of provisional measures awarded under Article 41 of the ICJ Statute.
On October 15, 2015, the Grand Chamber of the European Court of Human Rights delivered its judgment in the case of Perinçek v. Switzerland. The judgment contested a criminal provision applied in Switzerland against a Turkish politician who had publicly denied a historical fact of the Armenian genocide. Notwithstanding variations in reasoning, the outcome in the Grand Chamber is similar to the previous decision of the Chamber on this case in 2013. The Swiss criminal provision applied in the context of the denial of the Armenian genocide was again found irreconcilable with freedom of expression under Article 10 of the European Convention on Human Rights (ECHR).
Opinion 2/13 of the Court of Justice of the European Union (CJEU) declared the draft agreement on European Union accession to the European Convention on Human Rights (ECHR) incompatible with the Treaty on European Union. The Opinion comes toward the end of a long and gradual process of incorporating human and fundamental rights principles into the legal system of the European Community and its successor, the European Union. Opinion 2/13 sends the Commission back to the drawing board on what has long been seen as the capstone of that process—EU accession to the Strasbourg human rights regime as an external check on human rights protection within the European Union.
On September 24, 2015, the International Court of Justice (ICJ) released its judgment on the preliminary objection filed by Chile in Obligation to Negotiate Access to the Pacific Ocean.1 Chile had objected to the ICJ’s jurisdiction arguing that Bolivia’s application raises a dispute that had already been settled by the 1904 Peace Treaty Between Bolivia and Chile. The ICJ, however, rejected this jurisdictional objection and agreed to consider the merits of Bolivia’s claim that Chile has an obligation to negotiate in good faith the issue of Bolivia’s sovereign access to the Pacific Ocean.
On October 22, 2015, the Court of Justice of the European Union (CJEU) rendered its judgment in the case of Skatteverket v. Hedqvist. In this important decision the CJEU sheds light on the value added tax (VAT) aspects of the use of bitcoins. Supplying bitcoins (or better, paying with bitcoins) does not constitute a VAT taxable service, so paying with bitcoins is not a barter transaction. The mere exchange of bitcoins into traditional currency (or vice versa) also remains outside the scope of VAT. The exchange service is VAT exempt.
On July 31, 2014, the European Court of Human Rights (ECtHR) rendered its final decision on a claim brought by the liquidated Russian company OAO Neftyanaya Kompaniya Yukos (Yukos) against the Russian Federation (Russia), a decision that is the last in a series of three decisions in this case relating respectively to the admissibility of the application, the merits, and just satisfaction.
A couple weeks prior to the ECtHR’s decision, three arbitral tribunals established under the auspices of the Permanent Court of Arbitration (PCA) and functioning under the UNCITRAL Arbitration Rules had issued their final awards based on claims brought by three former shareholders of Yukos under the Energy Charter Treaty. The dispute, while brought by the shareholders of Yukos, in essence is the same as the one brought by Yukos against Russia before the European Court of Human Rights.
On March 4, 2015, Singapore’s Court of Appeal issued its judgment in Yong Vui Kong v. Public Prosecutor, upholding the punishment of caning imposed on the defendant as constitutional. The decision is significant because it discusses the impact of the prohibition of torture, a peremptory norm of international law, on domestic legislation. The Court of Appeal determined that, even if caning were to be considered a form of torture, the customary international law prohibition on torture did not invalidate its domestic law permitting caning as a form of punishment.
On December 18, 2014, the Grand Chamber of the Court of Justice of the European Union (CJEU) issued its judgment in International Stem Cell Corporation v. Comptroller General of Patents, Designs and Trade Marks. The Court held that the term “human embryo” does not cover unfertilized human eggs produced by parthenogenesis (parthenotes).
On June 12, 2015, the Arbitral Tribunal in Muhammet Çap & Sehil Inşaat Endustri ve Ticaret Ltd. Sti. v. Turkmenistan, composed of Professor Julian D.M. Lew (President), Professor Laurence Boisson de Chazournes (Arbitrator), and Professor Bernard Hanotiau (President), issued its Procedural Order No. 3, ordering claimants to confirm
whether its claims in this arbitration are being funded by a third-party funder, and if so, shall, advise Respondent and the Tribunal of the name or names and details of the third-party funder(s), and the nature of the arrangements concluded with the third-party funder(s), including whether and to what extent it/they will share in any successes that Claimants may achieve in this arbitration.
This is the first publicly available written order issued by an arbitral tribunal constituted under the rules of the International Centre for Settlement of Investment Disputes (ICSID) that compels claimants to disclose information about any third-party funding arrangements.
In Dan Cake v. Hungary, an arbitral tribunal constituted under the auspices of the International Centre for Settlement of Investment Disputes (ICSID) issued a rare finding of denial of justice in its adjudication of the claims by Portuguese investor Dan Cake, alleging that the Hungarian court’s actions during the liquidation proceedings of its subsidiary were a violation of the fair and equitable treatment provision of the Hungary-Portugal Bilateral Investment Treaty (BIT). The decision adds an example of the factual circumstances that lead to a finding of denial of justice and reaffirms the stringent requirements that need to be satisfied in order to succeed on such a claim.
For many years, the United Nations Security Council expressed its concerns about the proliferation risks presented by the Iranian nuclear program, doing so in the context of its primary responsibility under the Charter of the United Nations for the maintenance of international peace and security. With the intent to resolve its concerns, the Security Council adopted Resolution 2231 on July 20, 2015. The Resolution endorsed the Joint Comprehensive Plan of Action (JCPOA) that had been concluded on July 14, 2015, by China, France, Germany, the Russian Federation, the United Kingdom, the United States, the European Union, and Iran (the E3/EU + 3). Resolution 2231 and the JCPOA are closely intertwined. Their implementation will result in strict limits on Iran’s ability to produce weapongrade nuclear material. On-site verification and monitoring of these limits by the International Atomic Energy Agency (IAEA) will provide assurance that Iran is observing them. Resolution 2231 and the JCPOA also provide for a step-by-step removal of sanctions imposed on Iran for its past failure to resolve concerns about its nuclear program. Past concerns about “possible military dimensions” to Iran’s nuclear program, while neither misplaced nor necessarily fully assuaged, were put aside, being outweighed by the prospect that the JCPOA offers, “a comprehensive, long-term and proper solution to the Iranian nuclear issue.”
Under the Agreement, which entered into force on November 1, 2015, France provided $60 million for payment by the United States to Americans and others for Holocaust-related claims for deportation from France. In return, the United States undertook to ensure legal peace for France with respect to such claims.