January 2021: Series 2

Human Rights 

Curated by Abhijeet Shrivastava

Peruvian Police Brutality

The United Nations Office of the High Commission for Human Rights (OHCHR) has released a report last week documenting the excess use of force by Peruvian police in November 2020. This police brutality transpired during protests which erupted following the swearing-in of Manuel Merino as the interim President of Peru after the then President Martin Vizcarra was impeached over bribery charges. 

The report, after rigorous interviews and meetings with victims, witnesses, and governmental authorities, found that the events involved various violations of international law standards regarding the use of force. This involved, inter alia, indiscriminate force against peaceful protestors and those who allegedly committed violence, using force more than necessary to dispense the crowds, with at least two individuals killed by shotgun pellets, along with over 200 participants injured. 

The OHCHR’s report traces this incident as a continuation of an overarching resort to excess and indiscriminate police force in Peru. Drawing thirty recommendations to improve police accountability, the OHCHR has offered its support to Peru for their implementation. 

To read the full report, see here

Canada Rejects Church’s Challenge Against Suit Concerning Child Abuse

The Canadian Supreme Court has recently declined to hear an appeal by the Catholic Church against a suit for damages which had been brought by victims of child sexual abuse at the St. John Newfoundland’s Mount Cashel Orphanage. The appeal was brought against an earlier landmark civil decision where the Church was held ‘vicariously’ responsible for the abuse the plaintiffs had suffered by five Brothers from the Christian Brothers Institute Inc, during their residence at the orphanage. Thus, this celebrated and welcome decision has brought finality to the suit brought by former students of the orphanage, which had been pending for over twenty-one years

To read further, see here.

ECHR To Decide Russian Rights Violations In Crimea

The European Court of Human Rights has announced that it shall decide a case brought by Ukraine, concerning human rights violations in the Crimean peninsula by Russia, related in part to Moscow’s annexation of the region in 2014. The court has found itself competent to hear the complaint while treating it as ‘partly’ admissible. The twelve counts of human rights abuses alleged by Ukraine which the Court shall decide include killings, forced disappearances, unlawful detentions, and suppression of non-Russian media.

To read further, see here and here

The ICJ: Iran v. the USA

The International Court of Justice has announced that it shall deliver its judgment on February 3, 2021, on the preliminary objections filed by the United States in the case concerning Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. the United States of America). 

For context, the United States under the Trump administration had frozen several Iranian assets and prohibited all financial help thereto after withdrawing from the Iran nuclear deal. Iran had approached the court against this ‘re-imposition’ of nuclear sanctions while claiming it as a violation of the 1955 Treaty. In October 2018, the court had denounced the United States’ re-imposition and ordered it to lift restrictive measures concerning humanitarian trade, food, medicine, and civil aviation. 

However, instead of lifting these measures, the United States announced its withdrawal from the 1955 Treaty, and imposed further sanctions on Iran, leading to the present case. The United States objected claiming that it no longer recognizes the Treaty as binding, and as the sanctions arise from the Joint Comprehensive Plan of Action, or JCPOA, not the 1955 Treaty. The court’s decision in this regard is awaited. 

For an overview of the case, see here and here. The court’s press releases can be followed here


International Commercial Arbitration

Devas Multimedia Arbitration

Pushkar Reddy 

Devas Multimedia has approached the US district court to enforce the PCA ruling against ISRO’s commercial arm Antrix Corp. Devas argues that it has the right to enforce the award in the United States since India is a signatory to the New York Convention. 

Devas had raised the arbitration in 2016 after the cancellation of a contract for the construction of two satellites from Antrix. India justified its decision after noticing supposed irregularities in the deal from an audit. The first award given by the International Chamber of Commerce fined India 672 million dollars for the unilateral cancellation of the contract. The second, delivered by the PCA imposed a 1 billion dollar penalty on India. 

To read more about the enforcement of the award see here and for the details of the two arbitrations see here.

Swiss Supreme Court confirms the principle of ‘kompetenz-kompetenz

Ruchi Chaudhury 

The Swiss Federal Supreme Court upheld an arbitral award referring to the widely recognized principle in international arbitration of ‘kompetenz-kompetenz’. 

The principle of ‘kompetenz-kompetenz‘ means that the arbitral tribunal decides on its own jurisdiction, principle which is also recognized under Article 186(1) under the Swiss Private International Law Act (“PILA”). Article 186 provides as follows:

1. The arbitral tribunal shall decide on its own jurisdiction.

It shall decide on its jurisdiction notwithstanding an action on the same matter between the same parties already pending before a state court or another arbitral tribunal, unless there are serious reasons to stay the proceedings.

2. Any objection to its jurisdiction must be raised prior to any defense on the merits.

3. The arbitral tribunal shall, in general, decide on its jurisdiction by a preliminary decision.”

The dispute originates from a construction agreement between the State of Libya and a Turkish company. Upon non-performance of the contract, the parties agreed on Geneva as the seat of the arbitration, and an award was passed against the Libyan company. Parallel to the pending arbitration proceedings in Geneva, the state of Libya initiated proceedings before the court in Tripoli (Libya) to challenge the validity of the settlement agreement. 

On appeal, the Swiss Federal Supreme Court noted that dual arbitral proceedings were initiated prior; a tribunal had already passed an award in Geneva, while a challenge to the agreement itself was instituted in Tripoli by the award-debtor. The Swiss Federal Supreme Court observed that the challenge to the validity or existence of an agreement on arbitration does not prevent the arbitral tribunal from continuing arbitration proceedings and issuing an award. Rather, the principle of ‘kompetenz-kompetenz’ allowed it to come to a decision in its own jurisdiction before any state court has rendered its decision in that regard.

The invocation of kompetenz-kompetenz by the Swiss appellate court ensures that a party cannot torpedo ongoing arbitration proceedings seated in Switzerland by initiating foreign proceedings.

For details on the dispute and history of arbitration proceedings, see here


International Trade

Curated by Karan Himatsingka

EU requests for establishment of Panel after consultations with Indonesia fail

The European Union has requested the WTO to establish a Panel after they failed to reach a settlement in their dispute with Indonesia. The EU challenges Indonesia’s measures restricting the export of raw materials such as nickel ore, which are necessary for the production of stainless steel. They contend that the measures unlawfully restrict market access for EU steel producers to favor Indonesian domestic producers, and are therefore not in compliance with the General Agreement on Tariffs and Trade and the Agreement on Subsidies and Countervailing Measures.

To read the EU’s request for consultations, see here and here.

Qatar requests suspension of Panel deciding dispute with UAE

A Panel established to decide on Qatar’s challenge of measures taken by the United Arab Emirates has agreed to suspend its work upon a request made by Qatar as it seeks to reach an amicable settlement with the UAE. Qatar had earlier challenged a set of measures taken by the UAE to economically isolate it in 2017 over allegations of terror-financing. These measures had blocked movement of goods and services between the UAE and Qatar, and had also interfered with intellectual property rights enjoyed by Qatari nationals as it prohibited broadcasting of television content owned by them. 

Costa Rica initiates consultations with Panama at the WTO

Costa Rica has requested consultations with Panama regarding the latter’s measures which restrict the import of products such as strawberries, pineapples, milk products, meat, etc., that originate in Costa Rica. Panama had banned the importation of strawberries due to detection of oxamyl residues, and of pineapples due to the alleged presence of pink hibiscus mealybugs in production areas. Panama had also refused to renew the sanitary approval for a few products, instead requesting Costa Rica to make a fresh application which would require new sanitary inspections and audits. Costa Rica contends that these measures are inconsistent with Panama’s obligations under the Agreement on the Application of Sanitary and Phytosanitary Measures, inter alia on the grounds that the measures are not based on any scientific evidence, lack a risk assessment, and arbitrarily or unjustifiably discriminate against them. Costa Rica also argues that Panama has acted inconsistently with the most-favored nation principle and the prohibition on import restrictions under the GATT and Agreement on Agriculture.

To read the full request, see here.

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