REGIONAL ORGANIZATIONS AT THE CONFERENCE

ILA 2010’s general opening session was unique as it was the first time six regional and sub regional organizations were all represented at the conference. The panel at that session was made up of leading officials of African, American, Asian, European and Latin American regional associations of international law, as well as the president of the French Society of International Law. The session was also an occasion to discover that the African Foundation of International Law had been unseated as the youngest regional society of international law by…the Latin-American Society of International Law. The Latin-American Society of International Law will be holding its first congress from 8 -9 September 2010.

Séverine Menétrey Reports on the Panel on Forum State Limitations to Choice of Law in International Contracts

Séverine Menétrey (Université de Nice) has sent in the following report on the Commercial Arbitration panel at the Conference:



Enhancing Party Autonomy and the Limits thereto: Choice of Forum and Choice of Law in International Contracts
Chair: Karl-Heinz Böckstiegel
Panelists: Alex Mills and Jiri Valdhans

The aim of the panel was to identify the extent and possible limitations of the freedom of parties to an international contract to select the law governing their transaction. How do choice of forum agreements interact with the choice of applicable law?


Alex Mill (Lecturer in International Law, University of Cambridge) addressed the question of choice of law and its limits in a transnational context. The justification for party autonomy is individual freedom, but freedom is not the same when parties chose arbitration within a given national jurisdiction. While the freedom of choice of law is progressively won in international commercial relations, in some jurisdictions limitations to party autonomy or freedom persist. The parties may under certain conditions choose the law governing their contract, but the law has to be the law of a state. In that case, party autonomy is a limited choice: no law beyond the state even if there is a (r)evolution with European contract law. 

The choice of a non-state forum for arbitration remains very important since in such arbitration, party autonomy is upheld (except sometimes when the public interest is at stake). Escaping state law is possible through arbitration where the choice of non-state regulation (example, lex mercatoria and the UNIDROIT principles) is permitted. Private regulations and private mechanisms of dispute resolution co-exist with national laws and jurisdictions.

As it concerns the issue of enforcement, we know that arbitral awards based on UNIDROIT principles or on lex mercatoria are recognised all around the world by national jurisdictions. Though courts refuse to apply non-state regulation, they recognise awards based on private regulations. According to Alex Mill, this makes sense for political reasons and it is a first step in the direction of the recognition of a legal pluralism beyond the state.


Jiri Valdhans (Assistant Professor of Law, Masaryk University Brno, Czech Republic) addressed the same question of choice of law and its limits from the perspective of national law. He raised the question whether the international element is a legal ground for choice of law by the parties. Looking at Czech law, he noted that there is no definition of the international element. This situation has lead to a clash between two theories pertaining to the law chosen by the parties:


- party reference
- incorporation : chosen law is of contractual character.

This constitutes a problem because a Czech judge might have to apply foreign law ex officio and might have to find out the content of foreign law ex officio. Concerning the international element, he noted that the parties’ choice of foreign law only creates an artificial international element, as parties cannot in the first place chose any foreign law if there is no international element. He felt, therefore, that a presumption of conflict of laws is necessary for a choice of law by the parties.

Karl-Heinz Böckstiegel (Former President, Iran/US Claims Tribunal and the London Court of International Arbitration) brought a different perspective to the debate by referring to the facilities provided by arbitration. He referred to Article 4 of the ICSID Convention, Article 28 of the UNCITRAL Model Law, Article 35 of the UNCITRAL Arbitration Rules (new version released July 2010) and Article 17 of the ICC Arbitration Rules. All these provisions use the terms “rules of law designated by the parties”, that is to say not only national laws. He added that in arbitration, from a practical perspective, the issue of applicable law is not really a question, or is a question that remains relevant only in very limited respects (for example as it relates to prescription). He concluded that forum selection is very important for the parties: the extent and scope as to the choice of law depending on the forum chosen by the parties.

Séverine Menétrey

Open Working Session of the Working Group on Feminism and International Law

From the Editor

The Working Group on Feminism and International Law was one of the working groups of the ILA to hold an open working session at the conference. Annette Lansink (Rapporteur of the Working Group and Dean of the School of Law at the University of Venda, South Africa) had begun the session by introducing the purposes of the working group. The working group, while it acknowledges the insights of various feminist theories, is not concerned with the study of feminist theories and their influence in international law. Rather, its aim is to give women a voice within the law (taking into account the social and economic context), and to work towards transforming the law so that it can ensure substantive equality of women.

Unlike formal equality, which is concerned with the status of persons as equal bearers of rights, substantive equality - which forms the focus of the working group’s activities - requires the law to ensure “equality of outcome” in the treatment of men and women. Generally speaking, the work of the working group addresses the reality that international law is not a gender neutral system : that the lens though which the law is viewed is affected by the viewer’s preferences and prejudices, including gender (as well as national, geo-political, racial, ethnic and class) prejudices.


The main focus of the open session of the working group was the presentation and adoption of its final report on Women and Immigration. (See report on the ILA 2010 website).

Panel on The World Financial Crisis

From the Editor

The main focus of this highly insightful panel was identifying the nature and structure of regulatory frameworks that would be effective for averting or dealing with a financial crisis. Also discussed was an issue of specific relevance to lawyers: the complicity of the legal profession in the events leading up to the recent financial crisis and the role lawyers can play in averting a future crisis.

Panels on Intergrating Human Rights in Civil Cases

From the Editor

The two panels on integrating human rights in civil cases had examined the use of human rights norms in both national and international courts.

Piers Gardner (Monkton Chambers, London) had discussed the human rights of companies in the context of commercial disputes brought before the European Court of Human Rights (ECHR). Among the cases he looked at was the case brought by Yukos, the defunct Russian oil company, against the Russian Government before the ECHR.


Timothy Nelson (Counsel, Skadden Arps, New York) had focused on the use of human rights standards in international investment litigation. He had discussed cases brought before tribunals of the International Centre for the Settlement of Investment Disputes (ICSID) and the Southern African Development Community Tribunal, by Zimbabwean farmers deprived of their lands under the Zimbabwean Land Acquisition Act.

The International Criminal Court Panels

Is the ICC truly a court of last resort? Can peace and justice be simultaneously achieved at the ICC?


From the Editor

The first of the two conference panels on the ICC dealt with whether the ICC in practice (and as intended by the drafters of the Rome Statute) operates as a court of last resort - a court which complements rather than usurps the primary responsibility of States to prosecute international crimes.

John Dugard (Professor of Public International Law, Leiden University) had identified bases on which one could conclude that the Court is not operating in accordance with the complementarity principle. First, the existence of the ICC, he pointed out,  had not had the effect envisaged by the drafters. Instead of being an incentive for States to prosecute cases or risk having them taken over by the ICC, the tendency was that states were unwilling or unable to prosecute. The result was that the ICC has been left with no choice but to prosecute cases that should be handled by domestic courts. Second, the Court in a bid to justify its existence - inorder to “survive” - had assumed jurisdiction over situations which may not have been envisaged by the drafters. An example of this, he noted, was the recent electoral violence in Kenya, which the Court had assumed jurisdiction over by giving an expansive interpretation to the term “crimes against humanity” in the ICC Statute.

ILA 2010 OPENS ON AN INSPIRATIONAL NOTE From the Editor

The ILA 2010 conference has started off on an inspirational tone. The speakers at the formal opening panel had set out to emphasize the broader social context in which the conference is taking place and how this should shape one’s understanding of the goals of the conference.

As Eduardo Grebler, the outgoing president of the ILA pointed out, the meaning of the theme of the conference: De Iure Humanitatis (The Law of Humanity): Peace, Justice and International Law had to be understood against the background of the present state of international affairs, which he considered to have - frankly speaking - worsened since the last ILA conference in Rio in 2008.