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This Month in International Law - October 2018

The UN Security Council extends Sudanese peacekeeping mission one last time
The UN Security Council approved a six-month extension of its peacekeeping mission in Abyei – disputed territory between Sudan and South Sudan – but insisted there will be no further extensions absent progress between the claimants on border demarcation and security.

Adjudications at the World Trade Organization regarding US tariffs
Seven countries met in Geneva to air their grievances about recent American tariffs on foreign steel and aluminum. This meeting is part of the WTO’s dispute settlement, which is expected to last for at least two years before a decision is made.

India opens the door to UNCITRAL
An Indian government panel recommended that the country adopt the UNCITRAL Model Law on Cross-Border Insolvency.  According to a statement from the Corporate Affairs Ministry, the change would increase investor confidence in the economy.

From the International Criminal Court

ICC Prosecutor sends warning to Israeli government
ICC Prosecutor Fatou Bensouda warned that Israel’s planned demolition of a West Bank Bedouin village could constitute a war crime, echoing the European Parliament’s declaration that the operation would violate international humanitarian law. Israel, which intends to relocate the uprooted villagers several miles away, insists their village was illegally built. As of October 21, the demolition has been put on hold.

French Polynesia files an ICC lawsuit
The former president of French Polynesia filed a crimes-against-humanity lawsuit with the ICC over nuclear tests conducted by France in the archipelago between 1966 and 1996. Experts consider the case a long shot because the court only has jurisdiction over post-2002 crimes.

From the International Court of Justice

International Court of Justice rules in United States v. Iran
On October 3, the International Court of Justice ruled in favor of Iran in a case against the United States concerning the renewal of sanctions. The court ordered the United States to ease certain sanctions that will be re-imposed, notably with regard to humanitarian goods. This has resulted in the US withdrawing from a 1955 Amity Treaty with Iran, which was used as a basis for the suit.

ICJ rules on longstanding Chile-Bolivia dispute
ICJ ruled that Chile is not obligated to permit Bolivia a sovereign-access corridor to the Pacific Ocean. For over a century, the two countries have held episodic talks on the issue, but in 2012 Bolivian president Evo Morales took his case to the ICJ in a bid for leverage.

Arbitration News

Chinese arbitrator validates cryptocurrency trading
The Shenzhen Court of International Arbitration ruled that although Chinese law forbids the trading of cryptocurrency, it “has the nature of a property, which can be owned and controlled by parties.”  The arbitrator thus refused to invalidate a contract requiring the defendant asset manager to return a pool of cryptocurrencies to the plaintiff.

New Rules for the Hong Kong International Arbitration Centre
The Hong Kong International Arbitration Centre (HKIAC) unveiled new rules, to go into effect on November 1, 2018, governing “the use of technology, third party funding, multi-party and multi-contract arbitrations, the early determination of disputes, alternative means of dispute resolution, emergency arbitrator proceedings, and time limits for the delivery of awards.”  

Investor-State Arbitration to end between US and Canada
NAFTA’s replacement – the United States-Mexico-Canada Agreement (USMCA) – will end investor-state arbitration between U.S. and Canadian parties. U.S.-Mexico investor-state arbitration will remain available, but only for claims of direct expropriation and of national-treatment or most-favored-nation violations, and only after domestic remedies have been exhausted. A grandfather clause gives existing investors three years to file NAFTA claims.  

Singapore and China reach arbitration agreement
The Singapore International Arbitration Centre (SIAC) concluded a memorandum of understanding with the China International Economic and Trade Arbitration Commission (CIETAC). The MOU addresses, among other topics, SIAC’s vision for cross-institutional consolidation of fragmented arbitrations. As of 2016, Singapore was the fourth most popular international arbitration venue.

From the European Union

European Court of Justice takes on the Rule of Law in Poland
After the Associação Sindical dos Juízes Portugueses ruling earlier this year, many noted that the European Court of Justice was sending a clear message to Poland and Hungary that it was ready address their attacks on the judiciary. The first strike was sent this month as the Court released an order for Poland to immediately suspend its national legislation lowering the retirement ages of Supreme Court judges. A full review of the legislation’s validity under EU law  is still pending before the European Court.

Posted Workers Directive raises questions for the European Union
Hungary and Poland have asked ECJ to annul an EU directive restricting the low-salary employment of “posted workers” from poorer states in richer states like France and Germany.

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