JILP Online Forum

Book Review: Foreign Policy of the European Union—Assessing Europe’s Role in the World. By Federiga Bindi and Irina Angelescu (eds.)

Foreign Policy of the European Union—Assessing Europe’s Role in the World sets out to treat the foreign relations of the EU in a holistic, all-encompassing manner. For this purpose the book is divided into five parts, each of which develops a different perspective on the EU’s external actions. Part I deals with the legal, constitutional framework of the European treaties. Parts II and III are dedicated to the analysis of the specific EU relations with the EU’s immediate neighbors and more distant countries and regions respectively. Part IV is an analysis of horizontal issues of EU foreign relations and deals with the normative agenda behind the EU’s foreign policy and its often alluded to “soft power”. The fifth and final part concludes on the analytical results. The book is composed of contributions from a number of authors, practitioners as well as academics from European and non-European origin, all of whom are experts on the topics of their respective articles. The individual pieces, short and to the point, demonstrate the current state of EU foreign affairs, enabling readers to gain a quick and yet pervasive understanding of the fundamental issues concerning European foreign policy. Undeniably an advantage, readers are exposed to in-depth accounts filled with expertise and insight in concise issue areas in each contribution. The book finds the right balance between conveying the essential information and doing so in a clear and concise way. It therefore offers an excellent introduction to EU foreign policy, including some of its specific subtopics bridging the otherwise interdisciplinary gaps between law, international relations and political economy. This compartmentalization into subtopics written by different experts does produce tensions with the coherence of the book, as the reader often feels obliged to start following a new train of thought when confronted with yet another contribution. The book will nevertheless be useful to both readers who are entirely new to the subject as well as practitioners and scholars seeking to familiarize themselves with specific issue areas. As such, it represents an important scholarly contribution to the quickly evolving and highly complex field of EU foreign policy. Given the changing dynamics of this area, this second edition, taking into account in particular the changes prompted by the Lisbon treaty, has also to be understood as a time-bound account of the current state of affairs.

Part I of the book, entitled “The European Union’s Foreign Policy Tools” features an introduction to the history of EU foreign relations by co-editor Federiga Bindi. Bindi presents historical facts knowledgeably, but also with a density that can render the chapter a challenging read. This historical chapter is succeeded by accounts on the normative framework of EU foreign policy as amended by the Lisbon Treaty, which among other things attributed legal personality to the European Union and created the European External Action Service (EEAS), without however attaining the goal of uniting individual national interests in one European foreign policy voice. Part I also introduces to the European Common Defense and Security Policy in an article by Stephan Keukeleire and Kolja Raube; and includes an article by Francesca Longo on the internal competencies of Justice and Home Affairs and their impact as foreign policy tools. The chapters give account of the highly fragmented constitutional structure for the conduct of a European foreign policy to this day. The foreign policy of the EU, so the authors argue, encompasses much more than the narrowly defined areas of the CFSP and CSDP, but yet remains difficult to define in terms of concrete strategies and goals.

Part II deals with the European Union’s relationships with its immediate geographical neighbors, analyzing the specific foreign policy instruments used in this field. By contrasting the EU enlargement as a foreign policy tool from the European Neighborhood Policy, the authors argue the prospect of membership remains the strongest and most successful foreign policy tool of the European Union in dealing with third countries. Positive conditionality, that is the prospect of membership offered by the EU in exchange for reforms, represents the greatest leverage in the pursuance of the EU’s interests and the creation of a coherent space of common political structures and values. By their very nature, the scope of applicability of enlargement and integration are limited to immediate neighbors. The authors criticize the EU’s much less pervasive policies toward third countries under the European Neighborhood Policy umbrella in the absence of a prospect of membership. The examples of Belarus and Ukraine, for instance, are to the point in showing how much the EU loses in appeal and influence as a foreign policy partner if there is little prospect of joining it. The contributions on the Balkans and Turkey, on the other hand, show how powerful a driver of development the mere prospect of membership can be.

Part III deals with the EU and its relations to non-neighboring countries and regions, including the United States, Canada, Latin America & the Caribbean, Africa, Asia and China. Authors point out that relations with some regions, Africa and Latin America in particular, are characterized by an asymmetrical focus on individual European concerns such as migration or security issues (Africa) in the absence of an encompassing foreign policy strategy. The dialogues with many partners are moreover disconnected from their respective concerns and interests, indicated for example by the incessant but unheard calls for the liberalization of trade in agricultural products from African and Latin American countries. Often, moreover, the EU foreign policy approach of promoting democracy, human rights and intraregional cooperation appears less effective than the more pragmatic, bargaining type of approach exercised especially by Russia in Eastern Europe and China in Africa, through the payment of development aid in exchange for mining concessions for example. The chapters all recognize that the EU’s major flaw is the lack of a coherent unitary voice, which produces particular difficulties in the dialogue with nations of equal or similar power such as China or the United States. The contributions in this part are highly knowledgeable and filled with insights. Taken as a whole, they tend however to blur the substantial differences between EU foreign policies toward different non-European regions and countries and the different goals that the EU pursues. That is in part due to the fact that each author adopts a single perspective with its distinct emphases. The article on EU-US relations, for instance, contributed by American scholar Daniel S. Hamilton, is written from a distinctly American perspective, and is characterized by vocal observations regarding US expectations toward Europe. While Hamilton’s account certainly offers important insights regarding understanding of the EU’s external perceptions, it stands in stark contrast with other articles in which the perspectives of the EU’s partners are highly neglected, to the point that interests in the relations with Europe are barely mentioned, much less analyzed.

Part IV features a horizontal approach analyzing the underlying values of EU foreign policy. Applying a model of learning derived from social sciences, Laura Ferreira-Pereira asks how the EU’s “soft power” and its success or failure in promoting human rights and democracy in the world can be explained. In contrasting the EU’s “soft power” approach from that of the United States, it becomes evident how internal coherence and success are crucial for the pervasiveness of a model. Only if the EU is successful internally, Ferreira-Pereira concludes, it will be perceived as a model worth replicating and thus increase the impact and influence of the EU. Recent global developments however, such as the Arab Spring and the financial and economic crisis have shown the EU to be an indecisive and staggering actor, whose lack of consensus over internal issues prevents it from asserting the influence it could otherwise have.

Bindi provides a seminal and overarching conclusion in Part V of high analytical value. It assesses the EU’s foreign policy and paints a more comprehensive picture, pointing out in particular, that shortfalls in efficiently achieving tangible policy results are due to a lack of unequivocal agreement on clear policy goals and strategy among EU member states. In developing a perspective for the future, Bindi argues, that greater EU internal coherence and the formulation of a common strategy must be sought, including in particular the needs of new and prospective member states, acknowledging that long-term European foreign policy interests can only be pursued together against the background of a multi-polar world in which several major powers will give their distinct imprint on the future global development.

The main point of critique to be made on Foreign Policy of the European Union consists in the lack of the book’s overall coherence caused by the variety of approaches and perspectives that authors adopt for the presentation and analysis of their subject matter in question. This sometimes results in repetitions and a lack of clarity. Even though bilateral relations of the EU to different regions should be comparable among one another, the diversity of emphases and foci adopted render it difficult to contrast the EU’s relations to one region to that to another. On the other hand, the assembly of authors with diverse national and disciplinary backgrounds also represents a clear strength of the book in its effort of explaining a multi-dimensional, highly complex and dynamically evolving subject matter. It is therefore a great point of departure for the study of EU external relations and specific subareas thereof.

Reviewed By Alexander Ehrle

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Of Great Fears and Greater Hopes: The GPH-MILF Framework Agreement on the Bangsamoro

By: Celeste Marie R. Cruz[*]


Peace and economic development have long remained elusive to the conflict-torn region of Muslim Mindanao in the Philippines. Since the late 1960s, the Conflict in Mindanao, led by a secessionist independence movement of the Islamic minority in a predominantly Catholic country,[1] has led to an enormous loss of life and suffering, claiming an estimated 120,000 lives and displacing more than 2 million people.[2] The ongoing peace process between the Government of the Republic of the Philippines (GPH), under President Benigno Aquino III, and the Moro Islamic Liberation Front (MILF) reached a significant milestone with the signing of the Framework Agreement on the Bangsamoro[3] (Framework) last October 15, 2012. The Framework seeks to establish a “federal” type of sub-state in the said region[4] that is currently under the jurisdiction of the Autonomous Region in Muslim Mindano (ARMM).

The ARMM itself is actually the product of a decades-long peace process between GPH and the MILF’s “mother” group, the Moro National Liberation Front (MNLF).[5] The 1976 Tripoli Agreement between the Philippine government, under then-President Ferdinand E. Marcos, and the MNLF formalized the idea of an autonomous arrangement for Muslim Mindanao within the confines of the Philippine state.[6] Thereafter, the 1987 Constitution of the Philippines specifically mandated the establishment of an autonomous region in Muslim Mindanao,[7] and in 1989, the Philippine Congress passed the Organic Act establishing the ARMM.[8] In 2001, the same Organic Act was even amended “to strengthen and expand” its provisions,[9] as part of the terms of the final peace agreement between the Philippine government, under then-President Fidel V. Ramos, and the MNLF.[10] However, after the MNLF officially relinquished the struggle for the independence of Muslim Mindanao through the 1976 Tripoli Agreement, the MILF was formed by dissenting MNLF members to resume their separatist struggle, and thus to continue the armed conflict leading up to the current peace negotiations.[11]

In the interest of peace, but perhaps also due to the region’s vast natural resources (including energy and minerals with an estimated value of one trillion U.S. dollars[12]) and its strategic location for shipping interests,[13] the international community has a keen interest in the success of this peace process.[14] However, despite its merits as a step closer towards peace, the Framework is merely preparatory in nature and is not yet the actual peace agreement.[15]As explained by acclaimed constitutionalist Fr. Joaquin G. Bernas, S.J., the Bangsamoro Basic Law (BBL) itself—to be passed by the Philippine Congress and approved in a plebiscite by the concerned constituent units—will be the full peace agreement with the MILF.[16]

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Some Quick Thoughts on Transnational Human Rights Litigation in American Courts After Kiobel

by Professor Burt Neuborne [*]

The hope that the ATS would permit entrepreneurial lawyers to choreograph international human rights cases involving: (1) alien plaintiffs; (2) alien corporate defendants; and (3) acts wholly occurring abroad into an American court in an effort to take advantage of American discovery rules, Rule 23 class actions, and an independent judiciary is now history. All nine Justices in Kiobel slammed that door, which was probably a pipe dream in the first place. Chief Justice Roberts, writing for five Justices, including the maddeningly vague Justice Kennedy, ruled that the presumption against extraterritorial legislation blocked use of the ATS as a source of federal jurisdiction when neither the plaintiffs, nor the defendants, nor the operative facts had a significant link with the territorial United States. Mere corporate presence for the purposes of general jurisdiction over the defendant could not, ruled the Chief Justice, constitute the significant link to the territorial United States needed to rebut the presumption against extraterritorial legislation.

Although the grant by the United States of political asylum to the injured plaintiffs in Kiobel might have been deemed a significant link, and while it is a stretch to apply a presumption against extraterritorial effect to a jurisdictional statute designed to permit the efficient enforcement of customary international law claims that are binding throughout the civilized world, the Roberts opinion asks and answers the hard question of why the Delphic ATS should be read to make the United States judiciary the arbiter of worldwide international human rights claims having little or nothing to do with the United States. As I read the Breyer concurrence for the Court’s four liberals, they do not disagree that it would have been a form of judicial imperialism for the United States to make itself into a worldwide human rights tribunal in settings having little or nothing to do with the United States – except for general jurisdiction over a corporate defendant.

But the Kiobel majority says little or nothing about how to decide ATS cases where a significant link to the territorial United States exists, either because the injured plaintiff is a United States national, the defendant is a United States resident, and/or a significant proportion of the operative facts took place within the United States. The Breyer concurrence indicates that the ATS will apply in many such cases. The Roberts majority is silent on whether one or more of such links will rebut the presumption against extraterritoriality.  The swing-vote Kennedy concurrence is purposefully vague on the issue. So, much ATS litigation will continue, albeit in a narrower set of cases involving allegations of significant links to the territorial United States. We can look forward to years of uncertainty, split decisions, and an eventual return trip to a reconstituted Court.

I want to ask a different question. Is it necessary – or wise – to continue to view the ATS as the principal source of judicial authority to hear transnational human rights cases in US courts? Remember that the core provisions of customary international law discussed in Sosa are part of both the federal and state common law. As such, they provide a cause of action for damages entirely apart from the ATS which was held in Sosa to be solely a jurisdictional statute. Two alternative federal jurisdictional statutes are available. First, a cause of action under core customary international law would arise under the laws of the United States for the purposes of 28 U.S.C. sec. 1331, providing general federal question jurisdiction. While the exchange between Justices Souter and Scalia at nn. 19 and 20 in Sosa counsel caution about the use of 1331 as a jurisdictional base for a customary international law claim, both Justice Scalia and Justice Souter were talking about using 1331 to expand the pool of judicially enforceable customary international law claims, not about using it to enforce the core claims that are already enforceable under the ATS. While the Erie problem must be confronted, it seems clear to me that Sosa recognizes that federal common law, including core customary international law, survived Erie and is enforceable in federal court.

The second possible source of federal jurisdiction is diversity or alienage jurisdiction under 28 U.S.C. § 1332. If complete diversity exists and the jurisdictional amount is satisfied, customary international law claims are merely a form of common law fully enforceable in a diversity case. In order to minimize Erie, I would characterize the customary international law claim as part of the common law of the state in which the federal court sits. Alternatively, it could be enforceable as federal common law, although 1331 would seem to be the more logical vehicle. In deciding whether 1332 jurisdiction exists, remember, first, that the named-plaintiff in a class action is the sole measure of the class’s citizenship; and, second, that as long as one class member satisfies the jurisdictional amount, everyone else can come in under 28 U.S.C. § 1367 supplemental jurisdiction.

Entirely apart from federal jurisdiction, maybe it’s time to explore the international human rights enforcement capabilities of state courts. As long as general jurisdiction of the defendant exists in a particular state, a customary international law claim should be enforceable in state court as a matter of state common law. Just as the federal government adopts customary international law as a form of federal common law, states are free to adopt international norms as part of the state common law, and are duty-bound to enforce federal common law if they would enforce a parallel state law claim. If you choose to deploy a state common law claim premised on customary international law, remember that you can bring it in state court, or use 1367 to pendent the state common law claim onto your federal common law claim under 1331, or your common law claim under 1332.

Finally, whatever the availability of American courts, it’s long past time to take judicial fora in other settings more seriously as enforcement engines for international human rights. We should be working to add clear civil jurisdiction to the Rome court to enforce core claim of customary international law on behalf of victims. The evolution of aggregate litigation options in many foreign courts opens yet another door. The bottom line is that Filartiga survives. Sosa survives. A visionary, but unrealistic hope about the use of American courts as a worldwide enforcement arm for international human rights has been dashed. But the struggle goes on.

* Professor Burt Neuborne is the Inez Milholland Professor of Civil Liberties and the founding Legal Director of the Brennan Center for Justice at NYU School of Law. For 45 years, he has been one of the nation’s foremost civil liberties lawyers, serving as National Legal Director of the ACLU from 1981-86, Special Counsel to the NOW Legal Defense and Education Fund from 1990-1996, and as a member of the New York City Human Rights Commission from 1988-1992.

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Earlier Supreme Court Jurisprudence Shows Hope Not Lost for Those Seeking Corporate Accountability in U.S. Courts

By: Carey Shenkman[*]

Wednesday, the U.S. Supreme Court set a deeply alarming precedent in its decision in Kiobel v. Royal Dutch Petroleum, holding in substance 5-4 that the presumption against extraterritoriality defends corporations from being held accountable for human rights abuses like torture, rape, and murder committed in other countries. For years, U.S. courts were the only recourse for victims from countries with powerless, dysfunctional, or corrupt judicial systems. Their cases were a rare check on the conduct of our companies and their subsidiaries abroad.

Although Kiobel steepened the incline for human rights victims abroad seeking relief in U.S. courts, an earlier Supreme Court case tells us that this decision may not mean the end of these cases. Lower courts have, on at least one occasion, upheld a right that was foreclosed by the Court. This might happen where a judicial opinion is sufficiently fragmented or qualified. Indeed, one opinion demonstrating this was structured very similarly to Kiobel.

Justice Kennedy on Wednesday qualified the opinion of the Kiobel majority in a separate concurrence. He emphasized that cases may arise that are not “covered . . . by the reasoning and holding of today’s case.” He reiterated the importance of the “[m]any serious concerns with respect to human rights abuses committed abroad.” Justice Kennedy stressed that the issue “may require some further elaboration,” noting the fact that “[o]ther cases may arise with allegations of serious violations of international law.”

When I read this, I was reminded of another 5-4 Supreme Court opinion that played out similarly. In Branzburg v. Hayes, decided in 1972, the Supreme Court held that the First Amendment does not provide for any reporter’s privilege. In other words, there is no constitutional protection for the confidential relationship between a reporter and her sources.

Despite this holding, nine out of twelve federal jurisdictions still recognize some form of constitutional reporter’s privilege.

Justice Powell was a tiebreaker in Branzburg. And he, just like Justice Kennedy in Kiobel, filed a separate opinion qualifying the majority after breaking that tie. Justice Powell began, like Justice Kennedy, by advising caution: “I add this brief statement to emphasize what seems to me to be the limited nature of the Court’s holding.” An important consideration in Branzburg was potential government harassment of journalists to divulge their sources. Justice Powell stressed the need to balance “vital constitutional and societal interests on a case-by-case basis.”

Justice Kennedy’s caution to ‘wait and see’ in light of the serious human rights interests strongly parallels Justice Powell’s caution to examine important First Amendment interests case-by-case.

The structure of Kiobel may provide some wiggle room for lower courts, as such structure achieved in Branzburg. The majority in Kiobel fashioned a test where claims that “touch and concern” the United States would still have to overcome the presumption against extraterritoriality. Justice Breyer’s concurrence, with which three other Justices joined, declined to decide the case on this presumption. And Justice Kennedy’s cautionary words send a mixed message to lower courts. Courts might, on one hand, interpret Justice Roberts’ majority opinion to provide for a strong presumption. But Justice Kennedy, on the other, reminds courts that there are strong human rights concerns at play. These concerns might affect whether activity is said to “touch and concern” the United States. There is still judicial flexibility to determine whether severe human rights abuses affect U.S. commitments to uphold international human rights. These are all factors in the calculus for lower courts to decide whether sufficient exigencies exist to overcome the presumption against extraterritoriality.

After Branzburg, a majority of federal circuits actually worked around the ‘formal death’ of the reporter’s privilege, looking to the purpose of the First Amendment to do so. Similarly, courts concerned by the underlying human rights norms affected might distinguish Kiobel from a future case that Justice Kennedy warned would not be “covered . . . by the reasoning and holding.” After the dust settles, this means there may be room for at least some federal jurisdictions to allow cases against corporations that perpetrate horrific human rights crimes abroad.

* Carey Shenkman is a graduating J.D. Candidate at N.Y.U. School of Law, Researcher in First Amendment Law, Author in International Criminal Law, and Notes Editor on N.Y.U. Law Review.

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R.I.P. A.T.S.? How much of the Alien Tort Statute survives the Supreme Court’s Kiobel Decision?

This morning, the Supreme Court dismissed the human rights claims of a group of Nigerian nationals against Royal Dutch Petroleum (Shell) under the Alien Tort Statute (A.T.S.) in a 9-0 decision, though the justices split 5-4 as to the reasoning. For the original opinion, see: Kiobel v. Royal Dutch Petroleum Co., 569 U.S. ___ (2013)

Justice Roberts delivered the opinion of the Court on behalf of 5 justices. First, the Court held that the presumption against extraterritoriality, explained with force in Morrison v. National Australia Bank, 561 U.S. ___ (2010), applies to the statute and the federal common law cause of action under the statute. Second, the court found nothing in the statute’s language or history to rebut the presumption. Third, there are no facts to rebut the presumption in the instant case. Fourth and finally, the Court justifies its solution as preventing the ‘diplomatic strife’ that may arise from judicial interference in foreign policy, an area that is traditionally reserved to the political branches. The Court implied that even if the primary norm that created the cause of action might not cause strife, the judicial search for secondary rules (such as corporate liability) may still do so.

Justice Kennedy wrote a one paragraph concurrence whereby he noted that the A.T.S. is not dead, and that the “proper implementation of the presumption against extraterritorial application” could be revisited in the appropriate case. This seems to comport with Roberts’s analysis of whether or not the presumption applied in the instant case. Kennedy seems to be responding to the last paragraph of the majority opinion, which states “even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.”

Justice Alito, joined by Justice Thomas, attempted both to give more guidance to lower courts on how to determine when to rebut the presumption and to link this decision with the one in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the only other Supreme Court opinion considering the A.T.S. Alito suggests that the test for whether the presumption applies is whether the “focus” of the statute was meant to apply territorially. The focus of the A.T.S., he concludes, is any conduct that violates “an international law norm that satisfies Sosa‘s requirements of definiteness and acceptance among civilized nations”. Therefore, in order to rebut the presumption against extraterritoriality, a valid claim under the A.T.S. must allege conduct that meets the Sosa definiteness standard and that occurred within the U.S.’s domestic jurisdiction.

Justice Breyer’s concurrence, joined by Justices Ginsburg, Sotomayor, and Kagan, takes the argumentative tone of a dissent. Breyer finds the statute’s references to “’alien[s],’ ‘treat[ies],’ and ‘the law of nations’” sufficient indication to rebut the presumption of extraterritoriality. Further, he picks apart the majority’s survey of history. In particular, he points out that the majority opinion “cannot wish [the] piracy example away”, especially as the Sosa court acknowledged that acts of piracy was one of the three international law norms definitely covered by the A.T.S. In response to Roberts’s point that piracy occurred on the high seas and not in another State’s territory, Breyer points to Supreme Court precedent finding that “a ship is like land, in that if falls within the jurisdiction of the nation whose flag it flies.” Further, Breyer quotes the majority’s language that “Pirates were fair game wherever found, by any nation”. From this, he deduces a different limitation to dispose of the case. Rather than requiring that the offensive conduct occur within the U.S.’s jurisdiction, Breyer would merely require that “distinct American interests” be at issue. Such interests are implicated when the alleged acts took place on U.S. soil, when the defendant is American, or when dismissing the case would create a safe harbor in the U.S. “for a torturer or other common enemy of mankind.” Because Breyer does not see an American interest at stake here, he joins the majority to dismiss the case.

Despite Justice Kennedy’s assurance that the decision does not kill the A.T.S., it wipes out much of its caselaw. Whereas Breyer’s concurrence would have upheld seminal cases like Filartiga and Marcos, the majority opinion essentially vacates them. This goes well beyond the dreams of the defendants in this case, who had initially asked for cert only on the question of whether corporations could be liable under international law. After raising the extraterritoriality issue sua sponte and demanding a rehearing, the Court has now overruled virtually unanimous findings in the lower courts that the presumption against extraterritoriality did not apply to the A.T.S. See Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013 (7th Cir. 2011), Sarei v. Rio Tinto PLC, 487 F.3d 1193 (9th Cir. 2007), and Doe v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir. 2011).

In addition to curtailing future A.T.S. litigation, the majority opinion will have important ramifications for the presumption against extraterritoriality. First, it is now clear that the presumption relies on a ‘focus’ test. That is, the conduct that is the focus of a particular statute is the start of the presumption analysis rather than any ‘effect’ on the U.S.

Second, the presumption against extraterritoriality now applies not just to statutes, but to judicial action. Because the Court decided in Sosa that A.T.S. is strictly jurisdictional, the cause of action in any A.T.S. suit arises not under the statute, but rather federal common law. This is troubling, because it is unclear what the presumption means when applied to judicial action; for example, the analysis of legislative history and congressional intent is completely inapplicable when the judge making the inquiry is also making up the rule. Additionally, it is unclear how far this presumption goes. Does the presumption against extraterritoriality prohibit judges from issuing anti-suit injunctions that apply abroad? Does the presumption prohibit certain discovery orders regarding information abroad?

Third, the opinion seems to bifurcate the analysis of the presumption into ‘facial’ and ‘as applied’ stages. Confusingly, however, the court did not make the second stage of this analysis clear, and there may be scope to insert the old ‘effects’ test here. Alternatively, this could be an opportunity to reconcile the majority opinion with Breyer’s concurrence; perhaps if a “distinct American interest” were at stake in a particular case, the Court would be satisfied that the presumption has been rebutted in that particular case. Only Alito and Thomas supported the notion that the offending conduct must occur on U.S. soil. The final paragraph of the majority opinion says that claims should “touch and concern the territory of the United States”, which sounds like the old ‘effects’ test. While the tone of the opinion suggests that the Court has grown hostile to A.T.S. suits, the final paragraph of the majority opinion suggests that A.T.S. litigation is not dead yet.

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Fate of the Unilateral Option Clause Finally Decided in Russia

By: Yelena E. Archiyan[*]

For years, arbitration courts in Russia have upheld over and over again the validity of the so called unilateral option clause (“UOC”). But everything changed on June 19, 2012, when the Presidium[1] of the highest arbitration court of the Russian Federation[2] held in Russian Telephone Company v. Sony Ericsson Mobile Communications Rus that such clauses are invalid and unenforceable.[3] In 2009, Russian Telephone Company (“RTC”) entered into an agreement with the Russian subsidiary of Sony Ericsson, Sony Ericsson Mobile Communications Rus (“Sony Ericsson”) for the distribution of Sony Ericsson phones. The dispute resolution clause (“Clause”) of the distribution agreement, in relevant part, said:

Any dispute arising in connection with this Agreement . . . will be resolved in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce. . . . The arbitration clause does not limit Sony Ericsson’s right to apply to a court of competent jurisdiction with a claim to recover the amounts owed for products delivered.[4]

As is evident from the Clause, while both parties had the right to have a dispute decided through arbitration, Sony Ericsson was given an additional, unilateral right to litigate in a court of competent jurisdiction. When issues with the quality of Sony Ericsson products arose, RTC, disregarding the Clause, filed suit in the Moscow Commercial Court, where it sought the replacement of the alleged nonconforming products.

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Opinio Juris Online Symposium for Vol. 45, No. 1

The NYU Journal of International Law and Politics is proud to once again partner with Opinio Juris for an online symposium around Jenia Iontcheva Turner’s article, Policing International Prosecutors. Over the next two days, a number of scholars will be responding to Professor Turner’s article that was published in our Volume 45, No. 1 issue.

To follow that dialogue, please visit to Opinio Juris.

The abstract for her article:

A recurring question in international criminal procedure is how to ensure that prosecutors are held accountable for their errors and misconduct. When International Criminal Court (ICC) judges encountered the first serious error by the prosecution in Prosecutor v. Lubanga, they opted for an absolutist approach to remedies: the judges stayed the proceedings and ordered the release of the defendant. Although termination of the case was avoided through the intervention of the Appeals Chamber, the standoff between the judges and the prosecution highlighted the dilemmas that the ICC faces in these circumstances. To protect the integrity of its proceedings, the court must order remedies that effectively punish misconduct. At the same time, sweeping remedies may harm other interests of international criminal justice, including deterrence, retribution, and the establishment of an accurate historical record.

In its more recent decisions, the ICC has acknowledged these competing interests and weighed them in determining remedies for prosecutorial misconduct. This Article argues that the court should fully and openly embrace a balancing approach to remedies. Because of the gravity and systematic nature of international crimes, it is essential to recognize and accommodate the significant interests of the international community and victims in preventing impunity and establishing an accurate record of the crimes.

The balancing approach is not without shortcomings—it can be unpredictable, and it risks weakening enforcement of defendants’ rights. To avoid these dangers, the court should take several concrete steps in conducting the balancing analysis: specify clearly the factors that will guide it; place special importance on the fair trial rights of the defendant; temper remedies only when a significant and legitimate goal of the international criminal justice system warrants it; and finally, develop a broader range of responses to prosecutorial misconduct, including sentence reductions, partial dismissals, fines, and disciplinary referrals. By applying a well-defined balancing analysis, the ICC can achieve an approach to prosecutorial misconduct that is both effective and able to accommodate the competing interests of international criminal justice.

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Vol. 45, No. 1 Available Online

Our fall issue, Vol. 45, No. 1, is now available to view online. This issue includes pieces by Arnulf Becker Lorca on the global war on terror, Pammela Quinn Saunders on enforcing human rights, and Jenia Iontcheva Turner on the regulation and policing of international prosecutors.

Additionally, we are continuing our exciting collaboration with Opinio Juris tomorrow by having an online symposium discussing Professor Turner’s article, Policing International Prosecutors. A number of scholars from around the world will be responding to her piece on Thursday and Friday on Opinio Juris.

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Arbitration and Right of Access to Justice: Tips for a Successful Marriage

The arbitration, a form of private justice paid by the parties, and the right of access to justice regardless the financial obstacles guaranteed by the European Convention of Human Rights are predetermined to have a difficult relationship. Nevertheless, their “marriage” has been recently celebrated when, on 17 November 2011, the Paris Court of Appeal decided that arbitral tribunals are not exempt from applying this right. Consequentially, the Court annulled for violation of right of access to justice an international arbitral award in which arbitrators followed the ICC court’s decision to withdraw counterclaims of an impecunious corporate defendant because of the non-payment of the advance on costs.

The Court’s decision marks a triumph of the right of access to justice over party autonomy to submit dispute to arbitration governed by a procedure agreed on by the parties. Nevertheless, it does not provide an appropriate solution for cases when a party to arbitration is impecunious. Therefore, the tips for a “successful marriage” between arbitration and right of access to justice are needed and alternative solutions how to articulate right of access to justice and arbitration in presence of an impecunious party will be explored.

Click here to read the full note Arbitration and Right of Access to Justice: Tips for a Successful Marriage.

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JILP Achievement in Marden Competition

Congratulations to JILP Managing Editing Harold Williford for outstanding success in the Orison S. Marden Moot Court Competition.  Based on his combined brief and oral argument score, he will be among the twelve competitors advancing to the Spring Semi-Final Round.  In addition, Harold is the winner of the Albert Podell Award for Best Brief Writer.  This award is given to the non-Moot Court Board student who achieves the highest brief writing scores in the Fall Elimination Round.

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