fbpx

ARBITRATION UNDER UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (UNCLOS ) PRACTICE PROCEDURE

August 6, 2020

United Nations Convention on the Law of the Sea (UNCLOS)  An International  Seabed Authority WHAT IS UNCLOS The International Seabed Authority (ISA) is an autonomous international organization established under the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea (1994 Agreement).  ISA which has its headquarters in Kingston, Jamaica, came into existence on 16 November 1994, upon the entry into force of UNCLOS.  ISA became fully operational as an autonomous international organization in June 1996, when it took over the premises and facilities in Kingston, Jamaica previously used by the United Nations Kingston Office for the Law of the Sea.  The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil. The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law The United Nations Convention on the Law of the Sea (UNCLOS) is the international agreement that resulted from the third United Nations Conference on the Law of the Sea (UNCLOS III), which took place between 1973 and 1982. The convention was opened for signature on 10 December 1982 and entered into force on 16 November 1994 upon deposition of the 60th instrument of ratification. The convention has been ratified by 168 parties, which includes 167 states (164 United Nations member states plus the UN Observer state Palestine, as well as the Cook Islands and Niue) and the European Union. An additional 14 UN member states have signed, but not ratified the convention. Subsequently, the “Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea” was signed in 1994, amending the original Convention. The agreement has been ratified by 150 parties (all of which are parties to the Convention), which includes 149 states (146 United Nations member states plus the UN Observer state Palestine, as well as the Cook Islands and Niue) and the European Union. An additional three UN member states (Egypt, Sudan, USA) have signed, but not ratified the agreement. As per Article 4 of the Agreement, following adoption of the Agreement any state which ratifies the convention also becomes a party to the Agreement. Additionally, only states which are parties to the Convention can ratify the Agreement. Breadth of the territorial sea Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention. Outer limit of the territorial sea The outer limit of the territorial sea is the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea. Normal baseline Except where otherwise provided in this Convention, the normal baseline for measuring […]

Read more

International Centre for Settlement of Investment Disputes (ICSID) Rules,Procedure, and India’s approach

August 1, 2020

First let us see why ICSID was formed and here we will see Practice, Rules and Jurisdiction of ICSID. With growing economy and globalization some forum was felt necessary to resolve dispute between investor and Host State. ICSID  was established under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention), is a multilateral international treaty. The ICSID Convention came into force on October 14, 1966. As of May 2016, 153 contracting member states agreed to enforce and uphold arbitral awards in accordance with the ICSID Convention. The primary purpose of ICSID is to provide facilities and services to support conciliation and arbitration of international investment disputes. The ICSID is part of and funded by the World Bank Group, and its headquarter is in Washington, D.C., in the United States of America. It is an autonomous, multilateral specialized institution to encourage international investment and ease non-commercial risks by a treaty drafted by the International Bank for Reconstruction and Development’s( IBRD)  executive directors and signed by member countries. The seat may be moved to another place by decision of the Administrative Council adopted by a majority of two-thirds of its members. The Center has an Administrative Council and a Secretariat and maintains a Panel of Conciliators and a Panel of Arbitrators. Unique Features of ICSID  Arbitration and conciliation under the Convention is  voluntary and require consent of both the investor and State concerned ( Host State)  Once such consent is given, it cannot be withdrawn unilaterally and it becomes a binding undertaking. ICSID is an impartial facility, and it does not decide the cases. The independent arbitrators and conciliators appointed to each case and pass award. Organization Structure The President of the Bank is ex officio Chairman of the Administrative Council (hereinafter called the Chairman) but shall have no right to vote. During his absence or inability to act and during any vacancy in the office of President of the Bank, the person for the time being acting as President shall act as Chairman of the Administrative Council. Jurisdiction: Jurisdiction of the ICSID is in Article 25 The term “jurisdiction of the Centre” is used in the Convention as a convenient expression to shall deemed to mean that, the limits within which the provisions of the Convention will apply. The facilities of the Centre will be available for conciliation and arbitration proceedings when its within jurisdiction of ICSID to its members. The jurisdiction of the ICSID extends to any legal dispute arising directly out of an investment, between a Contracting State / Host Sate and an investor/national of another Contracting State, which the parties to the dispute consent in writing to submit to the ICSID. It may be noted that, consent alone doesn’t bring a dispute within its jurisdiction. The jurisdiction of the Centre is further governed by Article 25(1). Article 25 (1)  provides that the jurisdiction of ICSID applies to legal disputes arising out of investments. So two basic preconditions which will give ICSID Jurisdiction. The expression “legal dispute” has been used to make clear that while conflicts of rights are within […]

Read more