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International Dispute Settlement tutorial notes week 1 - 7
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International dispute settlementTutorial I: Cooperation and disruption in dispute settlement
>>>> Assignment:
The Hypothetical Case: The Dispute concerning Gabbian Rock
Asilia is a small island state in the middle of the ocean. Since at least the 16th century, when Europeans
first recorded its existence, it has been inhabited by Asilians, which are divided into six tribes, each
inhabiting one part of the island. Asilians have a unique, complex society and annual cultural exchanges
between the tribes, with each tribe being led by a Chieftain and living relatively isolated from the other
tribes. Despite not having a formal constitution, a ‘Council of Six Chieftains’ deliberates on matters of
general interest to the islanders. One of the Chieftains takes on the role of the President-Chieftain for
two years, and in that capacity represents the state in international fora and in relations with other
states.
Between 1916 and 1966, Asilia was occupied by a European power, which administered it together
with several other territories in that part of the world. Most of these territories have since become
independent states. In 1970, a group of islands most adjacent to Asilia thus merged to form the
independent state of Lippalia, a developing country spreading over a large archipelago consisting of
more than thousand islands. Ever since gaining their independence, Asilia and Lippalia maintained
good neighborly relations: over the course of the years, their economies have become increasingly
interdependent; there are many cultural exchanges; politically, both states have been traditionally
strong allies.
As of recently, one issue began to strain their good neighborly relations: the dispute over an
uninhabited island, known as Gabbian Rock, over which both Asilia and Lippalia claim sovereignty.
Located at equal distance from their respective coasts, Gabbian Rock once played an important
strategic role, constituting the furthest point of the European power’s former colonial empire. Despite
the Rock lacking vegetation and fresh water supplies, the European power fortified the island,
maintaining on it a small fortress that was habitually supplied from Asilian ports. With the dissolution
of the colonial empire, Gabbian Rock became abandoned, with no state showing interest in it up until
March 2015, when a major maritime survey discovered potentially large oil deposits in the surrounding
waters. The discovery gave rise to a fierce diplomatic dispute between Asilia and Lippalia, which further
deteriorated after the Asilian police forces occupied the island in July 2015.
In September 2015, to prevent the dispute from escalating further, the two states eventually
succeeded to reach agreement to submit the sovereignty question to ad hoc arbitration, to be
conducted under the auspices of the PCA. To avoid a lengthy domestic ratification process, the
Arbitration Agreement became effective immediately upon its signature by the presidents of both
states. As a result, a three-member arbitral tribunal – composed of an arbitrator appointed by each
state and presided over by an arbitrator appointed by common agreement of the parties – was
successfully constituted by December 2015. In the course of 2016, the parties exchanged their written
memorials and supplied the Tribunal with numerous historical documents and other evidence in
support of their respective claims over the Rock. One such document, provided to the Tribunal by
Lippalia, appeared to be of major significance: a confidential administrative Decree purportedly issued
by the former European colonial power in 1925, confirming that Gabbian Rock had always been under
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,the administrative authority of Lippalia. This confidential document was said to originate from the
former colonial archives of the European power. However, the claim never received corroboration
from the former colonial Power which wishes not to take sides in a dispute involving two of its former
colonial territories.
By the time that the oral hearings commenced in 2017, doubts have emerged as to the authenticity of
the document. The Asilian experts, which had the chance to examine the Decree in the course of the
hearings, came to the conclusion that the paper on which the Decree was reproduced could not be
more than 5 years old. Shocked by what it considered to be grave misconduct on the part of Lippalia,
Asilia immediately requests the Tribunal to remove the impugned document from the evidential
record. In its Order of 25 May 2017, however, the Arbitral Tribunal, by majority decision, decides not
to concede to the request. Explaining that it is “for the Tribunal itself to be the judge of the admissibility
of evidence and of its probative value”, the Tribunal’s Order invites Asilia to provide any further
documentary or other evidence to disprove the authenticity of the impugned document. Asilia does
not accede to the request.
On 1 June 2017, a change in the presidency of Asilia takes place. Unlike her predecessor, the new
President-Chieftain of Asilia is not convinced that arbitration is the best way to resolve the dispute. For
a long time, the Chieftain opposed what it called a “sham arbitration process” involving a territory that
was “incontrovertibly Asilian”. In her inaugural speech, the President-Chieftain announces her
intention not to further permit Asilia’s participation in proceedings before “a Kangaroo court that fails
to sanction manifestly fraudulent conduct”. On 1 July 2017, the President-Chieftain submits a formal
Letter to the Arbitral Tribunal, invoking the invalidity of the arbitration agreement as a ground for
terminating Asilia’s participation in the arbitration process. According to the Letter, the previous
President-Chieftain had never possessed the authority to sign the arbitration agreement; the internal
negotiating mandate approved by the ‘Council of Six Chieftains’ allowed it only to concede to
conciliation, not arbitration. Accordingly, as the Letter explained, “Asilia cannot continue to participate
in a procedure to which it never agreed, and which is in any event likely to result in a miscarriage of
justice.” Asilia thereby informed the Tribunal that it considered “the arbitration procedure to be
irreversibly terminated.”
In August 2017, the Arbitral Tribunal decides to re-open the oral hearings, inviting both states to
explain their views regarding the issues raised in the Letter.
Part 1 of the exercise
During the tutorial you will step into the shoes of the parties’ agents and legal advisors. As part of the
exercise, you will reflect upon the legal principles and rules that the parties could invoke to
substantiate their claims. Specifically, you will address the following questions:
- Was the Arbitral Tribunal entitled to proceed the way it did with regard to the allegations of
fraudulent evidence?
Art. 17(1) PCA Rules states that subject to these Rules, the arbitral tribunal may conduct the
arbitration in such manner as it considers appropriate, provided that the parties are treated
with equality and that at an appropriate stage of the proceedings each party is given a
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, reasonable opportunity of presenting its case. So, the tribunal had discretion in organizing the
proceedings.
This reflects the principle of equality of arms, because both parties should be treated equally,
and this is relevant to assure effectiveness and fairness of the proceedings. This also reflects
the principle of fairness, because the proceedings have to be fair in order to be accepted by
the parties.
- What are the Tribunal’s powers with regard to the treatment of evidence?
In addition, art. 27(4) PCA Rules states that the tribunal has the discretion to decide whether
evidence is admissible or not. A judicial organ has a certain discretion how to weigh the
evidence to come to a conclusion.
The Arbitral Tribunal decides not to concede to the request of fraudulent evidence. Explaining
that it is “for the Tribunal itself to be the judge of the admissibility of evidence and of its
probative value”, the Tribunal’s Order invites Asilia to provide any further documentary or
other evidence to disprove the authenticity of the impugned document. The tribunal invited
Asillia to provide further evidence and this is in line with art. 27(3) PCA Rules, which states that
at any time during the arbitral proceedings the arbitral tribunal may require the parties to
produce documents, exhibits or other evidence within such a period of time as the arbitral
tribunal shall determine.
In addition, the tribunal shall hold hearings for the presentation of evidence by witnesses or
for oral argument (art. 17(3) PCA Rules).
- What mechanisms exist that are generally available to a party to respond to procedural
improprieties occurring in the adjudication process:
o as a result of misconduct by one of the parties, or
In PCA Croatia v Slovenia case Croatia stepped out of the proceedings, but the tribunal in
that case considered with respect to stepping out of the process unilaterally that this
possibility exists, but it is an option of last resort and there’s quite a high threshold. The
tribunal has to determine whether the process is compromised to such an extent that the
process can’t continue anymore (PCA Croatia v Slovenia case, §168). If the procedural
improprieties are discovered before the final decision is delivered, it is still possible to
cleanse the process.
In case of minor improprieties, you step to the tribunal and ask to order the party to
produce further evidence. So, you rely on the cleansing dynamic of the adversarial process
and according to the equality of arms each party should have the possibility to produce
evidence.
o as a result of misconduct on the part of adjudicators?
In case of misconduct on the part of adjudicators you can challenge them based on art. 12
PCA rules, which states that any arbitrator may be challenged if circumstances exist that
give rise to justifiable doubts as to the arbitrator’s impartiality or independence. In the
Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom) case judge
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