News In Brief – Autumn 2015

Italy withdraws from the Energy Charter Treaty
Reportedly, Italy in January 2015 delivered its notice of withdrawal from the Energy Charter Treaty in January 2015. In accordance with Article 47 of the ECT’s Rules, the withdrawal will take effect one year after notice of withdrawal was served. The official reasoning cited for its withdrawal is a State policy to reduce the costs of membership in international organisations. Italy has not withdrawn from the European Energy Charter, and, therefore, it will continue to participate in the works of the Energy Secretariat as an observer. Furthermore, the European Union is signatory to the Energy Charter Treaty and Italy, as a Member State of the European Union, is bound to the energy and competition policies established at the European Union level. In accordance with the Rules of the Energy Charter Treaty, its provisions will continue to apply to investments made in Italy before its withdrawal (i.e., January 2016) for a 20-year period. Therefore, investors will be able to bring claims against Italy until January 2036.

The International Criminal Court publishes a best-practices guide to Pre-Trial proceedings
A manual has been issued by judges of the Pre-Trial Division of the International Criminal Court identifying solutions to challenges faced by practicioners. The manual builds on over ten years of court activity, identifying best practices to be followed in pre-trial proceedings and stating the expectations of judges from defence counsel and the Prosecutor. The manual furthers the effectiveness and efficiency of proceedings before the court, and is meant to serve as a living document that can be updated, integrated and amended as warranted by relevant developments. A press release on the manual can be found here.

UNCITRAL is considering a proposal to create a convention on enforcement of settlement agreements reached through mediation or conciliation
After a year of considering a proposal to create a convention on enforceability of international commercial settlement agreements reached through mediation/conciliation, UNCITRAL has approved giving Working Group II (one of the six working groups established by UNCITRAL to perform substantive preparatory work on topics within its mandate) to work on drafting that document. The mandate is broad enough not to limit the form of such a document – it may end up taking the form of a guidance text, model legislation for States or a convention. The International Mediation Institute has supported the call for creating a convention to enforce settlement agreements reached through mediation/conciliation based on the success achieved by the 1958 United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards (also known as the New York Convention). For more information, the provisional agenda of the Working Group II is available here.

Developments in the Enrica Lexie dispute between Italy and India
On 21 June 2015, the Republic of Italy submitted its dispute with India in relation to the Enrica Lexie case to arbitration under Annex VII of the United Nations Convention on the Law of Seas. On 21 July 2015, Italy requested provisional measures requiring India to refrain from asserting jurisdiction over the dispute and taking or enforcing any judicial or administrative measures against two of its servicemen. Italy also requested that India be ordered to allow the servicemen to be in Italy for the duration of the arbitration proceedings. Although there are a number of public international law issues arising from this dispute, the initial question will be whether the International Tribunal for the Law of the Sea (“ITLOS”) can exercise jurisdiction over the case while there are pending parallel proceedings before the Supreme Court of India and whether India can continue to assert custody over the Italian servicemen. With regards to the former issue, a response to Italy’s request for provisional measures will be the next step in these proceedings. A request for provisional measures has priority over all other proceedings, in accordance with Article 90 of the ITLOS Rules. With regards to the latter issue, Article 33 of the United Nations Convention on the Law of the Sea provides that a coastal State is empowered to exercise “the control necessary to punish infringement” of its laws in the Contiguous Zone. The interpretation of “control necessary” under Article 33 is controversial under international law. Judge Laing, in his Separate Opinion in MV Saiga (No. 2) before ITLOS, held that ” [c]ontrol evidently is not coincident with generalized and plenary sovereign activity.” For more information, see here.