E-Newsletter – Autumn 2022

Volterra Fietta joins with the people of the United Kingdom, the Commonwealth and people around the world in mourning the passing of Her late Majesty Queen Elizabeth II.

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Volterra Fietta is pleased to announce that it has received a number of accolades in the past 5 months: “Best Public International Law Firm 2022”, by Global Business Awards; “Inclusivity and Diversity”, by The Gamechangers Progress Champion Awards 2022; and “Region’s Leading Arbitration”, by The Legal 500 Arbitration Private Practice Powerlist for the UK region. In addition, partner Graham Coop was awarded the following accolades: “Energy Sector Public International Law – Lawyer of the Year in England”, in the 2022 Global Law Expert Annual Awards; “Mondaq Thought Leading Author for Arbitration & Dispute Resolution, UK”, in the Mondaq Spring 2022 Thought Leadership Awards; and “Energy Sector Public International Law – Lawyer of the Year in England – 2022”, in the 2022 Lawyer Network Awards. Finally, partner Robert Volterra was selected for recognition in the fields of Arbitration and Mediation, International Arbitration and Public International Law, in the 2023 Edition of The Best Lawyers in the United Kingdom.

These rankings and testimonials reflect the dedication and the commitment to excellence of the firm’s highly specialised public international law experts. The firm is thankful for the continued trust of its many clients around the world. Volterra Fietta will continue providing them with innovative and practical advice so that they can succeed in their State-to-State, investor-State and commercial arbitration disputes.

Recent Developments in International Law

In the last five months, there have been a number of significant developments in international law.

On 22 July 2022, the International Court of Justice (“ICJ”) rejected the preliminary objections argued by The Republic of the Union of Myanmar (“Myanmar”) in the case initiated by the Republic of The Gambia (“Gambia”).  In November 2019, Gambia instituted proceedings alleging that Myanmar had breached its obligations under the Genocide Convention through acts against the Rohingya group. Myanmar submitted four objections to the claim.  The four objections analysed by the Court were: (i) whether Gambia was the ‘real applicant’ (as Myanmar argued that the ‘real applicant’ was the Organisation of Islamic Cooperation); (ii) whether a dispute between the parties existed (as Myanmar argued that there was no dispute between the Parties on the date of filing); (iii) Myanmar’s reservation to Article VIII of the Genocide Convention; and (iv) Gambia’s lack of standing to bring the case (as Myanmar argued that Gambia was not an injured state and had failed to demonstrate an individual legal interest).  On 24 February 2022, the Court heard the challenges, and in its decision, it rejected all of the objections (three unanimously and one by a vote of 15 to 1).  Regarding the first objection, the Court rejected it on the basis that Gambia had initiated the proceedings in its own name and that the fact that a State may have accepted the proposal of an international organisation to bring a case does not detract from its status as the applicant before the Court. Regarding the second objection, the Court concluded that a dispute relating to the interpretation, application and fulfilment of the Genocide Convention existed between the Parties at the time of the filing.  The Court rejected the third objection on the basis that Article VIII does not pertain to the seisin of the Court, so that Myanmar’s reservation to the provision was not relevant for the purposes of determining whether the Court was properly seised of the case.  Finally, the Court rejected the fourth objection on the basis that Gambia, as a State party to the Genocide Convention, has standing to invoke the responsibility of Myanmar for the alleged breaches of its obligations under Articles I, III and IV of the Convention.

On 25 July 2022, the Secretariats of the International Centre for Settlement of Investment Disputes (“ICSID”) and the United Nations Commission on International Trade Law (“UNCITRAL”) published the fourth version of the Code of Conduct for Adjudicators in International Investment Disputes.  This new collaborative project seeks to provide a set of principles and rules for adjudicators and addresses fundamental issues such as impartiality, independence, fairness of proceedings, efficiency and civility.  The drafting of the code has received considerable input from State delegates and stakeholders throughout the process.  Furthermore, on 25 August 2022, a draft commentary to the Code of Conduct was also published by ICSID and UNCITRAL.

On 24 August 2022, Rockhopper Exploration (“Rockhopper”) announced that an ICSID Tribunal had ordered the Italian Republic (“Italy”) to pay more than €190 million (plus interest at EURIBOR + 4%).  According to the award, Italy breached its obligations under the Energy Treaty Charter (“ECT”).  This investor-State arbitration was initiated by Rockhopper after the Italian government refused to grant a concession to the company for the Ombrina Mare field, an oilfield located on the Adriatic coast.  Initially, Italy had granted an exploration permit for the field in 2005 to Mediterranean Oil & Gas, a company later acquired by Rockhopper in 2014.  However, in late 2015, when the company was already under control of Rockhopper, the Italian government then refused the application for a production concession even though the relevant Ministry had issued a decree granting environmental approval for the project.  The decision has sparked criticism by climate change and green energy activists who argue that it will make it more difficult for governments to move away from hydrocarbons towards green energy sources.

On 1 July 2022, the amended ICSID Rules and Regulations came into effect. This is the fourth time the rules have been amended, the last amendment having taken place in 2006.  According to ICSID, this has been the most extensive review of the rules to date.  The main objectives of the amendment were to modernise the rules based on case experience, simplify and streamline the existing rules in order to make the processes more time and cost effective, and recognise technological developments in order to reduce the environmental footprint of ICSID proceedings.

On 29 April 2022, the Federal Republic of Germany (“Germany”) filed proceedings before the ICJ against the Italian Republic (“Italy”). As a basis for jurisdiction, Germany relied on Article 36, paragraph 11, of the Statute of the Court and Article 1 of the European Convention for the Peaceful Settlements of Disputes.  According to Germany’s application, Italy failed to respect Germany’s jurisdictional immunity as a sovereign State because Italian courts have continued to entertain new claims (at least 25 new cases) against Germany, in violation of Germany’s sovereign immunity, even after the ICJ had delivered, on 3 February 2012, its judgment on the issue of jurisdictional immunity in a case concerning Jurisdictional Immunities of the State (Germany v Italy: Greece intervening).  Germany argues that Judgment No. 238/2014 delivered by the Italian Constitutional Court deliberately disregarded the ICJ’s 3 February 2012 judgment.  In its application, Germany requests that the Court: (i) declare that Italy has violated, and continues to violate, its obligation to respect Germany’s sovereign immunity by allowing civilian claims to be brought against Germany based on violations of international humanitarian law allegedly committed by the German Reich between 1943 and 1945; (ii) declare that Italy has violated, and continues to violate, its obligation to respect Germany’s sovereign immunity by taking, or threatening to take, measures of constraint against German State-owned property situated in Italy; (iii) require Italy to ensure that existing decisions of its courts and those of other judicial authorities infringing Germany’s right to sovereign immunity cease to have effect; (iv) require Italy to ensure that Italian courts no longer entertain civil claims brought against Germany based on the aforementioned violations; (v) require Italy to make full reparation for any injury caused through its violations of Germany’s right to sovereign immunity; and (vi) require Italy to offer concrete and effective assurances and guarantees that these violations will not be repeated.

Recent firm events

On 14 April 2022, Volterra Fietta hosted a seminar on “Claiming the unclaimed: the limits of the continental shelf beyond 200nm”.

On 21 April 2022, Volterra Fietta hosted a seminar on “Deep seabed mining and sustainability – mining for the green energy transition”.

On 27 April 2022, Angela Ha and Florentine Vos spoke at the 10^th Annual Deep Sea Mining Summit, held in London.  The topic of their presentation was “Deep Seabed Mining: What’s next now that Nauru has pulled the trigger?”.

On 28 April 2022, partner Graham Coop participated in the Quadrant Chambers International Arbitration Panel Event: Investment treaty arbitration and the changing energy landscape.

On 18 May 2022, Volterra Fietta hosted a seminar on “Maritime boundary delimitation in practice”.

On 23 May 2022, Volterra Fietta hosted a seminar on “Latest developments in gas price revision disputes around the world”.

On 26 May 2022, Volterra Fietta hosted a seminar on “All at sea? International law and the predicament of rising sea levels”.

On 9 June 2022, Volterra Fietta hosted a seminar on “Dispute Resolution under UNCLOS”.

On 10 June 2022, partner Graham Coop participated in the Bucharest Arbitration Days as a panelist.

On 16 June 2022, Volterra Fietta hosted a seminar on “Fair and Equitable Deep Seabed Mining – sharing deep seabed mining’s financial and other benefits”.

On 28 June 2022, Volterra Fietta hosted a seminar on “Effectively Pleading Quantum in International Arbitration”.

On 27 July 2022, Volterra Fietta hosted a seminar on “Arbitration in the Middle East”.

On 7 September 2022, Volterra Fietta hosted a seminar on “Investment Protection Treaties and the Clean Energy Transition”.

Recently, partner Gunjan Sharma contributed a chapter entitled “New Procedural Mechanisms for Investor State Arbitration as Found in 189 Recently Signed Treaties” to the recently‑published book “International Arbitration in Times of Economic Nationalism”.

In the coming weeks, Volterra Fietta plans to offer seminars on the following topics:

•   Quantum and compensation in investment treaty arbitration:  Recent developments
•   The International Law Implications of Vision2030
•   Priorities and challenges at the ITU’s 2023 WRC
•   Deep Seabed Mining licensing and regulation: Recent developments at the ISA
•   Initiating a case before the International Court of Justice

If you would like to be added to Volterra Fietta’s invitation list for future events, please email your name and affiliation to info@volterrafietta.com.