Assumption of Jurisdiction by Pakistani Supreme Court in Reko Diq Case: Another Violation of International Investment Law

Purpose: This paper discusses that Pakistani judicial approach to separability, arbitrability and grounds to assume jurisdictions to decide these mattes does not sit well with the ICSID jurisprudence. Design/Methodology/Approach: Qualitative approach has been used. Findings: The Supreme Court’s judgment in Reko Diq is discussed in the light of awards rendered by ICSID to establish that the jurisdiction to decide the separability of arbitration agreement, arbitrability of a dispute or subject matter does not rest with a domestic court where parties have already conferred jurisdiction to determine these matters to ICSID and that Pakistani court cannot use any ground to assume jurisdiction over these matters. Implications/Originality/Value: The paper concludes that the judicial system of Pakistan needs reforms to formalize and ascertain the role of domestic arbitration councils in alignment with the ICSID. This will help Pakistani firms competing in international markets to get necessary legal support at home in line with international standards.

8. Articles 101 and 102: private enforcement in the courts of Member States

This chapter describes the private enforcement of competition law, that is to say the situation where litigants take their disputes to a domestic court or, quite often, to arbitration. It will deal with the private enforcement of Articles 101 and/or 102 as a matter of EU law, with particular emphasis on the Damages Directive. It also describes private actions for damages and injunctions in the High Court and the UK Competition Appeal Tribunal. The chapter considers the use of competition law as a defence, for example to an action for breach of contract or infringement of an intellectual property right. The chapter concludes with a brief discussion of issues that can arise where competition law disputes are referred to arbitration rather than to a court for resolution.

STRENGTHENING GLOBAL GOVERNANCE: INDONESIA’S COURT AND THE CENTRAL KALIMANTAN FOREST FIRE CASE

The success of global governance depends on the coherency of efforts of its actors, notably states. States are expected to meet their international obligation, including through their domestic policies. As a member of the international community, Indonesia has become a party to numerous treaties and participated in various effort to address global challenges. Yet reference to international law by Indonesia’s domestic court has so far been justified only for the sake of improving the quality of judgment or maintaining Indonesia’s standing as a law-abiding state. Further, most Indonesia’s legal scholars focus their attention on the position of international law in the domestic legal hierarchy, and how monism and dualism approaches influence the implementation of international law at the national level. This article focuses on how domestic court judgments have impacts outside national borders. It employs a normative research method, and uses the Central Kalimantan Forest Fire case as the stepping-stone of discussion. It concludes that the application of international law by Indonesia’s domestic court supports the intention of delivering a high quality judgment and strengthening the global governance.

Conclusions

This chapter considers explanations for the patterns of judicial review exposed in this study. It examines the Court’s performance in the light of the constraints of a domestic court faced both with challenges to state policy in political and security matters and the need to retain domestic and international legitimacy. The chapter places emphasis on the distinction between independence of judges and their neutrality. The lack of neutrality comes to the fore when the Court, which is the arm of an occupying state, reviews the authorities’ actions that affect persons who are not part of the judges’ political community. The Court has generally evaded examination of the legality under international law of the authorities’ actions or granted its backing to the positions of the government, often on legally dubious grounds. In so doing the Court has effectively legitimised virtually all policies and practices, including those that are incompatible with international law. In assessing the Court’s function, the chapter distinguishes between the Court’s legitimising and mitigating roles, and between the effect of the Court’s decisions and the effect of its shadow. Finally the chapter appraises the role that the Court has played in the transformation of the regime in the West Bank to one that has elements of a settler colonial regime.

Member state's lawlessness and European law – the case of Poland

Since 2015 the Polish authorities have undertaken numerous actions subordinating the country's judiciary to political influence. These steps met resistance from the European Union (EU), including proceedings by the European Commission and at the Court of Justice of the European Union (ECJ). The judgement of the ECJ in the case A.K. and Others v Sąd Najwyższy (2019) brought the situation to another level by empowering national courts to verify the independence of other domestic judicial bodies. While the ECJ empowered Polish judges to reject the domestic court-packing, the Polish state countered this with internal disciplinary sanctions. I discuss this tension and consider the upcoming conflict between the ECJ and the Polish Constitutional Tribunal (‘CT’). I conclude by highlighting the fact that whereas Poland breaches European law, the breach will be hard to rectify due to the lack of independent enforcement mechanisms on the side of the EU.

Conservative Innovation: The Ambiguities of the China International Commercial Court

In the global development of new international commercial dispute resolution centers, the China International Commercial Court (CICC) represents a genuine innovation in China's legal history. The CICC aims to become a dispute resolution “one stop shop” (combining litigation, arbitration, and mediation) for Belt and Road Initiative (BRI) related disputes. Despite its name and ambition, however, the CICC operates more like a domestic court. The CICC's stringent jurisdictional requirements and conservative institutional design show that the CICC cannot serve its stated objective of attracting new investment opportunities or foreign parties to the Chinese forum. These defects are not fatal but will have to be addressed for the CICC to reach its full potential of hybridization of litigation and arbitration both in and beyond China.

Ziada v. Gantz and Eshel

Civilians who bring claims against powerful states or their officials, for harm resulting from the conduct of war, face challenges that no single legal procedure can possibly overcome. Certain codified international laws outline specific protections for civilians, but this protective infrastructure stands in the shadow of two creatures of uncodified international customary law: state sovereignty and the immunity of states and their officials. The subject of this case note is a civil claim before a Dutch domestic court, against powerful officials of the state of Israel. The claimant, a Palestinian Dutch national, is attempting to sue the officials for the unlawful killing of six members of his family in the intentional bombing of their home in Gaza in 2014. In January 2020, he set out to establish the Dutch court’s jurisdiction based on an exceptional provision of the Dutch Code of Civil Procedure. This contribution argues that the Dutch court erred in allowing the asserted ‘functional immunity’ of the foreign officials to counter its own jurisdiction.