Saturday, February 21, 2009
On February 19, Belgium instituted proceedings against Senegal at the International Court of Justice (ICJ) alleging that Senegal has breached its obligation to prosecute the former President of Chad, Hissene Habre, or to extradite him to Begium for criminal proceedings on allegations of torture and crimes against humanity. Belgium has also requested the indication of provisional measures. Habre has been living in exile since 1990. Belgium claims that Senegal's duty to prosecute or extradite arises under both the Convention Against Torture (CAT) and customary international law. Belgium founds jurisdiction on the basis of the parties' respective declarations accepting the Court's compulsory jurisdiction under Article 36 of the Statute of the Court and the dispute resolution clause of CAT. With respect to provisional measures, Belgium requests the Court order Senegal to take appropriate measures to keep Habre under its control and surveillance until the international legal issues are resolved. Click here to read more.
Friday, February 20, 2009
In a meticulously reasoned (257 paras. long) and unanimous judgment delivered on Feb. 19, the European Court of Human Rights held that British authorities violated Art. 5 § 1 (right to liberty and security), Art. 5 § 4 (right to have lawfulness of detention decided by a court) and Art. 5 § 5 (victims of unlawful arrest or detention shall have an enforceable right to compensation) of the European Convention on Human Rights (ECHR). The full-text of the judgment is available here.
In this case, the eleven applicants (from the Maghreb or the Middle East) complained that they were detained in high security conditions under a statutory scheme (i.e. the Anti-Terrorism, Crime and Security Act 2001), which permitted the indefinite detention of non-nationals certified by the Secretary of State as suspected of involvement in terrorism, in violation of the provisions of the ECHR. The British Government, well aware that this detention scheme was not consistent with Art. 5 § 1 ECHR, issued a notice of derogation under Art. 15 ECHR in Nov. 2001 (According to Art. 15 ECHR: “In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law…”) But the European Court, while agreeing that there had been indeed a public emergency threatening the life of the nation (first condition to fulfill for a country to validly derogate from its obligations under Art. 5 § 1 ECHR), found that the derogating measures had not been strictly required by the exigencies of the situation. As a result, the UK could not lawfully derogate from Art. 5 § 1 ECHR. One should note that the UK government was the only country in Europe who decided to rely on Art. 15 ECHR although it was far from being the only one explicitly threatened by Bin Laden et al.
The European Court’s judgment in A et al. v. UK should be welcome and should be read in conjunction with the House of Lords’ judgment in the same case. The Law Lords found the detention scheme in violation of the ECHR under the UK 1998 Human Rights Act on the grounds that it did not rationally address the threat to security and unjustifiably discriminated against foreign nationals. The European Court merely confirmed this reasonable interpretation. Furthermore, the European Court’s judgment is well-balanced and sensibly recognizes the difficulties faced by States in protecting their populations from terrorist violence. Yet the Court is right to implicitly point out that the “war on terror” does not give national governments carte blanche to violate human rights and the rule of law. Too often, we have sadly come to realize that our elected officials did not think twice before playing with facts and did not shy away from enacting exceptionally repressive legislation for the sake of scoring points in the polls.
For a well-informed and more exhaustive analysis of this judgment, see the blog of the European Journal of International Law.
P.S. In a strange coincidence, the House of Lords, on Feb. 18, overruled the Court of Appeal’s judgment according to which a Jordanian terror suspect could not lawfully be extradited to Jordan because it was likely that evidence obtained by torture could be used against him there at a trial. As a result, the UK Home Secretary decided to immediately sign his deportation order. This individual, however, carefully lodged an application with the European Court a few days before. Unsurprisingly, the European Court sensibly decided to order the UK government not to deport him until the Court has given due consideration to the matter. One may only hope that the European Court will put an end to this abject policy of exporting suspected terrorists to dictatorial and torture-prone countries and that the UK will eventually rediscover the virtues of the rule of law.
Thursday, February 19, 2009
Save the Date: The Teaching International Law Interest Group (TILIG) of the American Society of International Law (ASIL) will be holding a program on "Teaching Using Simulations" at the ASIL Annual Meeting on Thursday, March 26, 2009 from 3-4:30 pm in the Executive Forum at the Fairmont Hotel in Washington, D.C. Participants are invited to bring examples of simulation exercises they use in their international law classes with them to the program to share. We will also hold our annual business meeting at that time. More information will be posted on this blog and on the ASIL website at a later date.
Tuesday, February 17, 2009
The UN-backed International Criminal Court for Cambodia (more properly called the "Extraordinary Chambers Resposible for the Prosecution of Crimes Committed by the Khmer Rouge in Cambodia") made history today by holding a hearing in its first trial. On trial is Kaing Guek Eav, also known as Duch, who is charged with crimes against humanity in connection with his supervision of a prison in the capital city of Phnom Penh during the rein of the Khmer Rouge where thousands of persons were allegedly tortured and killed. In a negotiated compromise between the the United Nations and Cambodia, the court uses a mixture of Cambodian and foreign judges, prosecutors, and defense attorneys. The Court has been criticised for being slow to begin proceedings and had been hindered by allegations of corruption and political interference by the Cambodian government. It remains to be seen whether the Court can live up to the hope that it will bring justice to the victims of the Khmer Rouge regime.
There is a new (or at least updated) on line resource available for law students seeking information about summer study abroad programs. It is the Renaissance Report sponsored by William Mitchell College of Law and can be found at http://www.wmitchell.edu/LER/Summer-law-programs-region-country-city.asp. The guide is searchable by law school or country and contains helpful details to assist students compare the various programs.
Sunday, February 15, 2009
We’re pleased to bring you a special blog post from Antonin I. Pribetic, Litigation Counsel at Steinberg Morton Hope & Israel LLP in Toronto, Canada.
Last week’s decision by the Court of Appeal for Ontario in Dancap Productions Inc., v. Key Brand Entertainment, Inc., 2009 ONCA 135 (Ont. C.A.) per Sharpe, Armstrong and Watt JJ.A., available online, reaffirms the Canadian judiciary’s “deferential approach” to the principle of competence/competence for arbitral jurisdiction.
The issue on appeal was whether the motion judge erred in refusing to grant a stay on account of arbitration and forum selection clauses in one of the contracts entered into by the respondents “Dancap” and the appellants “Key Brand”. Dancap and Key Brand executed a preliminary Term Sheet outlining the general terms of a participation agreement related to Key Brand’s acquisition of theatrical assets, including two Toronto theatres. Dancap was to gain an equity position in Key Brand and membership on its board, which included the right to manage the theatres pursuant to separate management agreements yet to be concluded. The parties also entered into an Additional Rights Agreement (“ARA”) which, inter alia, set out the parties’ agreement to negotiate in good faith towards the conclusion of the management agreements. Following Key Brand’s acquisition of the assets, but prior to the finalization of the management agreements, Key Brand sold the Toronto theatres to the respondent Mirvish Enterprises Limited (“Mirvish”). Dancap immediately threatened proceedings. However, Key Brand won the “race to the courthouse”; a month before Dancap sued in Ontario, Key Branch had already commenced an action in the United States District Court in California for an order compelling Dancap to submit their dispute to arbitration.
The ARA contained an “entire agreement” clause providing that it “supersedes all prior agreements, negotiations and understandings concerning the subject matter hereof” and that it “shall supplement each of the Management Agreements and the Shareholders Agreement of even date”. The entire agreement clause further provided that “if there is a conflict between this Agreement and… the Management Agreements, this Agreement shall control and provide [Dancap] with the additional rights granted… under this Agreement.” [at ¶ 13]. The ARA and Shareholders Agreement both contained an arbitration clause requiring that “[a]ny dispute, controversy or claim arising out of or relating to” the agreement (except for equitable claims) be submitted to arbitration “in accordance with the JAMS International Arbitration Rules. The tribunal will consist of a sole arbitrator.” The ARA and Shareholders Agreement also contained a forum selection clause providing for the exclusive jurisdiction of the state or United States District courts in California. However, the Term Sheet was silent on both arbitration and forum selection.
Key Branch then moved for a stay of the Ontario action based upon art. 8(1) of the UNCITRAL Model Law on International Commercial Arbitration, adopted in Ontario by the International Commercial Arbitration Act, R.S.O. 1990, c. I-9. The motion judge dismissed Key Brand’s motion. Morawetz, J. ruled that Dancap’s claims arose solely under the Term Sheet and not under the ARA and that the arbitration and forum selection clauses did not apply.
he Court of Appeal allowed the appeal and stayed the Ontario action, pending the resolution of the arbitration on the “core issue of whether Key Brand has the right to terminate any management rights to the theatres that Dancap may have obtained under either the Term Sheet or the ARA upon the sale of the theatres.” [at ¶43] Writing for the unanimous Court, Sharpe, J.A., held that:
“ It is now well-established in Ontario that the court should refuse to grant a stay under art. 8(1) of the Model Law where it is “arguable” that the dispute falls within the terms of an arbitration agreement. [Dalimpex Ltd. v. Janicki (2003), 64 O.R. (3d) 737 ( C.A. ), at para. 21, Charron J.A. and Hinkson J.A. in Gulf Canada Resources Ltd. v. Arochem International Ltd. (1992), 66 B.C.L.R. (2d) 113 (B.C.C.A.) internal quotation omitted] . . .
 As Charron J.A. explained in Dalimpex, at para. 22, “a deferential approach” allowing the arbitrator to decide whether the dispute is arbitrable, absent a clear case to the contrary, ‘is consistent both with the wording of the legislation and the intention of the parties to review their disputes to arbitration.’”
Justice Sharpe also relied upon the recent Supreme Court of Canada decision in Dell Computer Corp. v. Union des consommateurs, which endorsed the “competence-competence” principle, calling for deference to arbitrators to resolve challenges to their jurisdiction [at ¶34, citing Deschamps, J.,  2 S.C.R. 801 (S.C.C.) at ¶84). The parties consented to the admission of fresh evidence relating to a recent order issued by the District Court in California, which required the parties to submit to arbitration. The Court of Appeal’s deferential approach was not limited to arbitrability. Sharpe, J.A. had no difficulty in extending judicial comity to the U.S. court, without any form of reciprocity requirement, stating:
 It may well be that in the United States , courts do not follow the deferential approach to arbitrability set out in Dalimpex and Dell. (I note, however, that in the statement of defence Dancap has filed in the arbitration, Dancap maintains that Key Brand’s claims are not arbitrable and reserves the right to argue the point before the arbitrator as well as before the Ninth Circuit Court of Appeals.)
 Whatever the law may be in the United States , I am persuaded that the motion judge erred in ruling on the scope of the arbitration clause rather than leaving the issue to the arbitrator. While the issue of whether the dispute between the parties is covered by the ARA is by no means free from doubt, for the reasons that follow, I conclude that it is at least arguable that the ARA arbitration clause governs the core issue raised in the action. That issue was properly identified by the District Court judge as being whether Key Brand has the right to terminate any management rights to the theatres that Dancap may have obtained under either the Term Sheet or the ARA upon the sale of the theatres to Mirvish.
Thanks again to Antonin I. Pribetic, Litigation Counsel, Steinberg Morton Hope & Israel LLP, Toronto, Ontario, Canada