Arbitration — Applicable law — Relation between concession contract, bilateral investment treaty and ICSID Convention — Dispute with provincial authorities relating to interpretation and application of contract to be submitted to administrative courts

Economics, trade and finance — Bilateral investment treaty — Argentina-France bilateral investment treaty, Article 8(2) — “Fork in the road” provision — Relevance to Tribunal’s jurisdiction over treaty claim — Relevance to merits of claim

Arbitration — Jurisdiction — Jurisdiction issue joined to merits — Failure to designate or consent to application of ICSID Convention to province under Article 25(1) and (3) does not deprive Tribunal of jurisdiction — Local forum clause in concession contract does not divest Tribunal of jurisdiction for claims against State

State responsibility — Imputability — Attribution of responsibility for actions of political subdivisions — Responsibility not limited by federal or decentralized character of State — No factual basis for attribution — State’s obligation under bilateral investment treaty to pursue in good faith and with reasonable efforts the resolution of the dispute — State’s constructive role in renegotiation process

Relationship of international law and municipal law — Impossibility of separating claims for breaches of contract from bilateral investment treaty violation without prior resort to administrative courts — Claimant required under contract to assert its rights in proceedings before administrative courts prior to invoking ICSID procedure — Claimant not precluded from asserting its rights in administrative courts — No evidence that courts lacked independence or fairness or would have denied claimant’s rights procedurally or substantively — No principle of exhaustion of remedies

Claims — Exhaustion of local remedies — Requirement incompatible with Article 8 of bilateral investment treaty and Article 26 of ICSID Convention — Resort to administrative courts required under contract for purposes of interpretation and application

Arbitration — Challenge to validity of award — Composition of tribunal — Challenge to President of ad hoc Committee — Procedure for challenging members of ad hoc Committee — ICSID Convention, Article 53(4) — Validity of Arbitration Rule 53 — Connection between President’s law firm and related company of claimant — No personal involvement of President — No general retainer — Partner’s legal advice on matters unrelated to dispute before the Committee — Work substantially complete before commencement of proceedings — De minimis rule — Challenge rejected

Arbitration — Jurisdiction — Relation between concession contract, bilateral investment treaty and ICSID Convention — Dispute with provincial authorities relating to investment contract — Investment contract providing for exclusive jurisdiction of provincial courts — Whether precluding claim under treaty — State responsibility claim against Argentina arising from conduct of provincial authorities — Non-designation of province under ICSID, Article 25 — Article 25 irrelevant to treaty claim

Arbitration — Annulment proceedings — Claimant seeking partial annulment of decision on merits — Respondent seeking in the alternative annulment of whole award — Admissibility of respondent’s claim — Whether a “counterclaim” — Power of ad hoc Committee to determine extent of annulment — Respondent’s arguments admissible — Tribunal finding that federal authorities did not fail to assist in resolution of provincial claim — No basis for annulment — ICSID Convention, Article 53

Arbitration — Annulment proceedings — State responsibility — Tribunal finding that it could not determine whether there was a treaty breach prior to municipal court proceedings on the contract claim — Bilateral investment treaty excluding requirement of exhaustion of local remedies — Manifest excess of jurisdiction — Failure to give reasons — Relation of treaty claim to contract claim — ICSID Convention, Articles 26, 53 — ILC Articles on Responsibility of States for Internationally Wrongful Acts, 2001, Article 3

Economics, trade and finance — Bilateral investment treaty — Argentina-France bilateral investment treaty, Article 8(2) — “Fork in the road” provision — Relevance to Tribunal’s jurisdiction over treaty claim — Relevance to merits of claim

Arbitration — Jurisdiction — NAFTA, Articles 1102, 1105 and 1110 — Application to acts done before NAFTA’s entry into force — National court decisions after entry into force — Retrospective effect — Proceedings brought under NAFTA Article 1116(1) — Whether brought “on behalf of an enterprise” — Failure to rely on Article 1117(1) — Admissibility — Claim brought more than three years after incidents causing damage — Three-year time-limit — Application — NAFTA, Article 1116(2)

Arbitration — Procedure — NAFTA, Chapter 11 — Claim pursuant to Additional Facility Rules — Place of arbitration — Relevant factors — Joinder of jurisdictional objections to merits — Extent of discovery — Confidentiality of proceedings — Application of national freedom of information legislation to pleadings, minutes of meetings and orders of Tribunal — Extent and duration of parties’ obligation of confidentiality absent statutory obligations of disclosure — NAFTA Article 1126, Annex 1137.4 — Arbitration (Additional Facility) Rules, Articles 14, 24, 38 and 44 — Award of costs and expenses — Extent of Tribunal’s discretion

State responsibility — Expropriation — Investments — Termination of an investment — Lapse of contractual option — Bank’s foreclosure on mortgage over investment property — Subsisting claims under national law — Whether an “investment” Relevance of ownership of national law proprietary rights — NAFTA, Article 1139

State responsibility — Treatment of aliens — NAFTA, Article 1105(1) — Denial of justice — Whether “new law” applied retrospectively — Procedural decisions — Scope and standard of NAFTA review — “Full protection and security” — Statutory immunity of State agency in respect of intentional torts — Tortious interference with contractual relations — Jury finding implying lack of legitimate regulatory purpose — Whether immunity in breach of Article 1105(1) — Non-application of trade practices law to regulatory authority

Treaties — Interpretation — Subsequent practice — NAFTA — Free Trade Commission interpretation — Whether binding on Chapter 11 Tribunal — Whether “interpretation” or “amendment” — Scope of FTC interpretation — Effect on pending proceedings

International tribunals — International Tribunal for the Law of the Sea — Applicable law — United Nations Convention on the Law of the Sea, 1982 — Judicial function — Relationship between Convention and the Rules of the Tribunal

Sea — Exclusive economic zone (“EEZ”) — Coastal State jurisdiction over EEZ — Arrest of vessel — Requirement of prompt release — United Nations Convention on the Law of the Sea, 1982, Articles 73 and 292 — Amount of bond for release of vessel and Master — Whether reasonable — Criteria of reasonableness

Treaties — Interpretation and application — United Nations Convention on the Sea, 1982

International tribunals — International Tribunal for the Law of the Sea — Applicable law — United Nations Convention on the Law of the Sea, 1982 — Seychelles and France both States Parties to the Convention — Seychelles instituting proceedings under Article 292 of Convention — Jurisdiction and admissibility — Relationship between International Tribunal and domestic courts and administration — Decision of the International Tribunal under Article 292

Sea — Exclusive economic zone (“EEZ”) — Arrest of vessel — United Nations Convention on the Law of the Sea, 1982, Articles 292 and 73 — Procedures for ensuring prompt release of vessels and crew — International concern over illegal, unregulated and unreported fishing in the Southern Oceans — Patagonian toothfish — Commission for the Conservation of Antarctic Marine Living Resources

Sea — Coastal State jurisdiction — Exercise of sovereign rights of coastal State — Monte Confurco flying flag of Seychelles — Allegation of illegal fishing in EEZ of the Kerguelen Islands in the French Southern and Antarctic Territories — Seizure of vessel, catch and equipment — Bond for release of vessel set by court of first instance, Reunion — Seychelles contesting legality of the bond

Treaties — Interpretation and application — United Nations Convention on the Law of the Sea, 1982, Article 73(2), (3) and (4) — Meaning of the expression “reasonable bond or other financial security” in Article 292 — Whether bond set for release of vessel reasonable — Level and elements of bond — Facts and circumstances of case — Valuation of vessel — Assessment of gravity of alleged offences — Whether international concern over illegal fishing relevant to assessment of gravity and to level of bond — Whether value of seized catch and fishing gear form part of bond — Determination of reasonable bond by International Tribunal — Arrangements for posting of bond

International tribunals — International Tribunal for the Law of the Sea — Applicable law — United Nations Convention on the Law of the Sea, 1982 — Belize and France both States Parties to the Convention — Belize instituting proceedings under Article 292 of Convention — Jurisdiction under Article 292 of Convention — Power of International Tribunal to examine issue of jurisdiction proprio motu — Consideration of documentary evidence placed before International Tribunal by parties to the dispute — Whether International Tribunal should seek further clarification from the parties — Relationship between International Tribunal and domestic courts and administration — Decision of the International Tribunal under Article 292

Sea — Exclusive economic zone (“EEZ”) — Illegal fishing — Arrest of vessel — United Nations Convention on the Law of the Sea, 1982, Articles 292 and 73 — Procedures for ensuring prompt release of vessels and crew

Sea — Coastal State jurisdiction — Exercise of sovereign rights of coastal State — Grand Prince flying flag of Belize — Allegation of illegal fishing in EEZ of the Kerguelen Islands in the French Southern and Antarctic Territories — Prosecution of Master of vessel — Seizure of vessel — Bond for release of vessel set by court of first instance, Réunion — Confiscation of vessel, catch and equipment ordered by criminal court — Belize challenging legality of confiscation

Treaties — Interpretation and application — United Nations Convention on the Law of the Sea, 1982 — Article 292 concerning prompt release — Article 91 concerning nationality of ships — Requirements under Article 91 — Factors relevant to determining nationality of ships — Documentary evidence regarding nationality and registration of ships

Territory — Title — Native tide — Mabo v. Queensland (No 2) — Common law recognizing native title in relation to land — Native Tide Act 1993 (Commonwealth) — Section 223(1) of Act — Criteria for determination of native title — Section 6 of Act — Territorial application — Whether native tide existing over marine areas

Sea — Tide — Native tide rights and interests — Whether native tide existing offshore — Mabo v. Queensland (No 2) — Relevance of common law — Native Title Act 1993 (Commonwealth) — Section 223(1) of Act — Section 6 of Act — Interpretation of Act — Whether native tide rights and interests in relation to sea — Whether common law recognizing rights and interests over sea and seabed — Whether native title rights and interests enforceable under Australian legal system — Whether native title rights and interests in relation to sea conferring exclusive possession, occupation, use and enjoyment of sea and seabed in claimed area

Sea — Territorial sea — Sovereignty — Great Britain acquiring sovereignty over Northern Territory in 1824 — Seas and Submerged Lands Act 1973 — Seas and Submerged Lands Case 1975 — Subsequent legislation — Relevance of radical title to offshore native title rights and interests — Extent of Australia’s territorial sea — Whether common law recognizing native title rights over sea claimed by indigenous peoples

Relationship of international law and municipal law — International principles — New source of law to resolve ambiguous municipal law — International law influencing development of common law — Australia party to International Convention on the Elimination of All Forms of Racial Discrimination — Convention given effect by Federal Parliament

Human rights — Property rights — Legal rights of indigenous people to sea — Universal human rights — Elimination of racial discrimination — Australian indigenous peoples — Preservation of traditional society and culture — Need to protect indigenous land and resources — The law of Australia

Arbitration — Award — Partial annulment — Judicial review — Supplementary reasons for judgment — Whether appropriate case to correct Order flowing from reasons of judgment — Section 34(4) of International Commercial Arbitration Act — Adjournment of judicial review proceedings — Whether appropriate — Arbitral proceedings — Whether Tribunal to be given opportunity to consider breaches of Articles 1105 and 1110 of NAFTA based on concepts within the scope of submission to arbitration — Damages — Whether Metalclad entitled to interest prior to 20 September 1997

Expropriation — Articles 1105 and 1110 of NAFTA — Annulment of part of Award relating to breaches involving decisions beyond scope of submission to arbitration — Whether Tribunal to be given opportunity to consider breaches of Articles 1105 and 1110 of NAFTA based on concepts within the scope of submission to arbitration

Claims — Interest — Exclusion of interest in the Award — Whether breach of Articles 1105 or 1110 of NAFTA based on concepts within the scope of submission to arbitration — Whether Metalclad entitled to interest from 5 December 1995 to 20 September 1997

Treaties — Conclusion and operation — Constitutional limitations — Accession of France to Rome Statute of International Criminal Court, 1998 — Compatibility with French Constitution — Extent of special constitutional amendment required prior to ratification

International tribunals — Jurisdiction — International Criminal Court — Rome Statute, Article 1 — Principle that jurisdiction of International Criminal Court to be complementary to national courts' jurisdiction — Article 17 of Statute — Scope of principle of complementarity — Whether jurisdiction of International Criminal Court defined in sufficiently clear and objective manner

State immunity — Head of State immunity — Criminal proceedings before International Criminal Court — Article 27 of Statute — Immunity based on official capacity as Head of State, or Government member, not a bar to prosecution before Court — No exemption from criminal responsibility, or punishment, for acts performed in official capacity — Compatibility with French Constitution — The law of France

State immunity — Jurisdiction — Head of State — Scope of immunity of Head of State in office — Whether commission of international crime precluding Head of State from relying on State immunity — Whether such exception to immunity now recognized as rule of customary international law — Whether such exception applicable to terrorist offences

Relationship of international law and municipal law — Crimes against international law — Terrorism — Punishment of terrorist crimes by municipal courts — Whether requirement to prosecute such crimes constituting a rule of jus cogens — Whether such rules automatically incorporated into domestic legal order — The law of France

Human rights — International Covenant on Civil and Political Rights, 1966 — Reservations — Validity of reservation — Remedies — Whether compensation payable for violation of fundamental human rights

Relationship of international law and municipal law — Treaties — Human rights — Constitution of India, 1950 — International Covenant on Civil and Political Rights, 1966 — Reservations — Validity of reservation — The law of India

Human rights — Discrimination — Convention on the Elimination of All Forms of Discrimination Against Women — Interpretation — Application in India

Relationship of international law and municipal law — Constitution of India, 1950 — Treaties — International conventions creating a legitimate expectation — The law of India

Extradition — Speciality — Principle of international and national law — Absence of a general duty of extradition in international law — Extradition carried out under conditions determined by the extraditing State — Consequences for the requesting State — Prohibition on prosecution of extradited person for any charge not contained within the extradition order — The law of India

War and armed conflict — Belligerent occupation — Occupied territory — Definition — West Bank and Gaza Strip — Whether occupied territory — Transfer of parts of West Bank and Gaza Strip to Palestinian Authority — Attacks on Israel — Israeli forces re-entering areas — Whether West Bank and Gaza Strip to be treated as a single entity or as two separate occupied territories — Inhabitants of West Bank required to reside in Gaza Strip for two years — Whether deportation outside occupied territory or assigned residence within occupied territory — Criteria for assigned residence — Requirement that person concerned must pose threat to the security of the territory — Fourth Geneva Convention, 1949, Articles 49 and 78 — The law of Israel

International criminal law — Jurisdiction — National courts — Universal jurisdiction — Torture — Crimes against humanity — Whether crimes of universal jurisdiction

Relationship of international law and municipal law — Treaties — Crimes against international law — Convention against Torture and other Inhuman or Degrading Treatment, 1984 — Articles 4 and 5 — Provisions on jurisdiction of municipal courts — Whether automatically incorporated into municipal legal order or requiring specific implementing legislation — Conditions for direct applicability of treaty provisions — The law of Senegal

Relationship of international law and municipal law — Treaties — Effect of unincorporated treaty in English law — Treaty between France and the United Kingdom concerning the Construction and Operation by Private Concessionaires of a Channel Fixed Link, 1986 — Concession to construct and operate Tunnel — Channel Tunnel Act 1987 — Arbitration provisions in Treaty and Concession — Justiciability — Whether English court entitled to rule on interpretation of Treaty and Concession in proceedings by concessionaires — Whether interpretation reserved to arbitration tribunal

Treaties — Interpretation — Principles — Good faith interpretation — Ordinary meaning of terms in their context and in light of the object and purpose of the treaty — Subsequent practice — Whether indicating agreement — Whether capable of prevailing over ordinary meaning of words used — Requirement that both governments consent — Whether failure to object amounting to consent — The law of England

Expropriation — Conditions for legality — Territorial limitations — Dissolution of corporation and transfer of assets — Iraqi invasion and annexation of Kuwait — Purported dissolution by Iraq of Kuwait Airways Corporation — Transfer of assets to Iraqi Airways Company — Kuwaiti aircraft flown to Iraq before decree — Whether decree effective to transfer title — Whether to be recognized by courts of third country

Governments — De facto governments — Occupation of territory in armed conflict — Purported annexation of territory — Iraqi occupation and annexation of Kuwait — Whether Iraq to be regarded as de facto government of Kuwait during occupation — Whether acts of Iraq in Kuwait to be treated as effective by courts of other States — Significance of international condemnation of occupation and annexation

International organizations — United Nations — Security Council — Effect of Security Council resolutions — Resolutions adopted under Chapter VII of the Charter of the United Nations — Effect of resolutions before courts of Member State — Security Council resolutions regarding Iraqi invasion of Kuwait — Duty of States not to recognize annexation of Kuwait or related Iraqi actions — Duty of Iraq to rescind legislation on annexation of Kuwait

Recognition — Of governments — United Kingdom practice — 1980 declaration that United Kingdom Government would no longer recognize governments — Application by courts in the United Kingdom — Position where United Kingdom Government makes unequivocal statement that it does not recognize a regime — International law duty of non-recognition — Iraqi claims to Kuwait — Whether English courts precluded from treating Iraq as de facto government of Kuwait during occupation

Relationship of international law and municipal law — Act of State and non-justiciability — Nature of act of State doctrine — Whether separate principle of non-justiciability — Acts of foreign sovereign within own territory — Whether to be treated as valid without inquiry — Whether exceptions to this principle — Public policy — Whether informed by international law — Relevance of UN Security Council decisions — Violation by foreign State of clearly established principles of international law

States — Existence of State — Occupation of entire territory of State by invader — Annexation of occupied territory — Whether State ceasing to exist — Kuwait — Iraqi annexation in 1990 — Rescission of annexation in 1991

War and armed conflict — Belligerent occupation — Iraqi occupation of Kuwait — Illegality — Invalidity of measures taken by Iraq to annex Kuwait and take property of Kuwaiti State corporations — The law of England