International Law of State Responsibility (Enforcement of International Arbitral Awards)
Arb 133 (Pt VI)This postgraduate course explores the principles and practices of state responsibility in the context of international arbitration. Students will examine the legal framework governing the Principle of State Responsibility, including the International Law Commission's Articles on State Responsibility and relevant case law. The course will focus on the dynamics and... Read more
Learning Outcomes
- Understand the principles of state responsibility in international law and their application to international arbitration.
- Analyze the legal framework governing state responsibility and its relevance to the enforcement of international arbitral awards.
- Explain the provisions of the New York Convention and its implementation in national laws.
- Evaluate the challenges and limitations in enforcing arbitral awards against states.
- Apply knowledge of state responsibility and international arbitration to real-world scenarios and case
Course Description
This postgraduate course explores the principles and practices of state responsibility in the context of international arbitration. Students will examine the legal framework governing the Principle of State Responsibility, including the International Law Commission's Articles on State Responsibility and relevant case law. The course will focus on the dynamics and possible setbacks to the enforcement of international arbitral awards, including the New York Convention and its implementation in national laws.
Course Curriculum
1. The concept of state responsibility and its relevance to international arbitration
4 lessons- The Rights and Obligations of States; Attribution of Conduct of State organs and entities exercising governmental authority
- Breach of International Obligations
- Reparation for Injuries on the basis of international responsibility
- The Role of International Law in determining state responsibility
2. The Legal Framework Governing State Responsibility
8 lessons- Analysis of International Instruments governing the principles of State Responsibility
- (i) Articles on State Responsibility (2001): Adopted by the International Law Commission (ILC), these articles codify the principles of state responsibility
- (ii) Vienna Convention on the Law of Treaties (1969): Establishes the rules for treaty interpretation, validity, and termination
- (iii) International Court of Justice (ICJ) Statute (1945): Sets out the ICJ's jurisdiction and procedures for resolving disputes related to state responsibility
- (iv) Hague Convention on the Protection of Foreign Property (1899): Establishes principles for the protection of foreign property and state responsibility
- (v) Geneva Conventions (1949): Regulate the conduct of war and the protection of civilians, including state responsibility for breaches.
- (vi) United Nations Charter (1945): Sets out the purposes and principles of the UN, including state responsibility for maintaining international peace and security
- vii) International Law Commission's Draft Articles on the Responsibility of International Organizations (2011): Addresses state responsibility in relation to international organizations.
3. Challenges and Limitations in Enforcing Arbitral Awards Against States (practical tips)
9 lessons- Limit of applicability: based on the Principle of Reservations
- Legislative limits: enactment of legislation that limits the enforcement of international arbitral awards
- Using national case law to limit to the enforcement of international arbitral awards
- Slow harmonization of national Court judgments on enforcement and convention instruments such as the Hague Judgments Convention
- Polyphony and cacophony: The existence of multiple legal frameworks and courts can create conflicts and inconsistencies, leading to
- Efficiency and predictability: The enforcement of international arbitral awards under the New York Convention can be more efficient and predictable
- Sovereign immunity: Some states claim sovereign immunity, making it difficult to enforce international arbitral awards against them
- Recognition of court judgments: There are still some issues with the recognition of court judgments in some states
- International commercial courts: The establishment of international commercial courts can help to address some of the issues with the enforcement of international arbitral awards.
4. Recognition and Enforcement based on the New York Convention
10 lessons- Initiation of enforcement through filing a petition or application in enforcing forum Court Proceedings in some national jurisdictions, Ex Parte or Inter Partes proceedings could be used to commence
- Service of Process or Arbitral Award on debtor party
- Grounds for Refusal of enforcement such as public policy, due process, or arbitral excess
- Time Limits and statute barred issues
- Enforcement Mechanisms- forum Courts may use various mechanisms to enforce awards, including asset seizure, garnishment, or specific performance
- Appeal by opposing party against enforcement decision
- Examples of national laws and procedures used in some countries, include: United States: Federal Arbitration Act (FAA) and New York Convention
- United Kingdom: Arbitration Act 1996 and New York Convention; Canada: Arbitration Act and New York Convention
- Australia: International Arbitration Act 1974 and New York Convention
- India: Arbitration and Conciliation Act 1996 and New York Convention; China: Arbitration Law and New York Convention.