The Private-Public Law Divide in International Dispute Resolution [1 ed.] 9789004384903, 9789004384880

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© The Hague Academy of International Law, 2018 All rights reserved

ISBN 978-90-04-38488-0 Full text of the lecture published in June 2018 in the Recueil des cours, Vol. 388.

Cover photograph: Januskopf 3, by Anita Niehaus

THE HAGUE ACADEMY OF INTERNATIONAL LAW

A collection of law lectures in pocketbook form

2018

The Private-Public Divide in International Dispute Resolution

The Private-Public Divide in International Dispute Resolution

BURKHARD HESS

TABLE OF CONTENTS Chapter I.  Introduction. . . . . . . . . . . . . . . . . 21 A.  A classical, but controversial distinction. . . . B.  New conceptual approaches and challenges. . . C. Dividing and bridging – the approach of this course. . . . . . . . . . . . . . . . . . . . . . . 1.  Different applications of the divide. . . . . 2.  The three main functions of the divide . . .

21 30 35 35 37

Chapter II. The domestic perspective : separating domestic litigation from foreign and international adjudication.. . . . . . . . . . . . . . . . . . . . . 42 A.  Sovereign immunity. . . . . . . . . . . . . . . 42 1.  The 2004 UN Convention on State Immunity. . . . . . . . . . . . . . . . . . . . . . 42 2.  State bonds. . . . . . . . . . . . . . . . . . 46 3.  Compensation of war damages by domestic courts : an evolving area ?. . . . . . . . . . 55 (a)  Immunity for acta jure imperii. . . . . 55 (b)  Filling the gaps of international law by domestic remedies. . . . . . . . . . . . 60 4.  The specific situation of international organizations.. . . . . . . . . . . . . . . . . . . 66 B. Exercising public authority in cross-border settings. . . . . . . . . . . . . . . . . . . . . . 73 1. The principle of territoriality and the exercise of public authority. . . . . . . . . . . . . 73 2. Enforcing public law claims in foreign domestic courts. . . . . . . . . . . . . . . . 77 3. Regulatory litigation and regulatory arbitration. . . . . . . . . . . . . . . . . . . . . 82 (a) Public interests in civil litigation  : European developments. . . . . . . . . 82 (b)  The situation in the United States. . . . 89 (c)  Regulatory settlements. . . . . . . . . . 92 (d)  Regulatory arbitration. . . . . . . . . . 97

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Chapter III. The international perspective : private claims in international fora. . . . . . . . . . . . . 105 A.  Private claims in the international arena.. . . . 105 1.  Diplomatic protection . . . . . . . . . . . . 105 2. Mixed claims commissions and tribunals between 1918 and 1953. . . . . . . . . . . 110 3.  Modern dispute settlement. . . . . . . . . . 116 (a)  The Iran-United States Claims Tribunal. 117 (b) The United Nations Compensation Commission. . . . . . . . . . . . . . . 123 (c) The re-emergence of mixed commissions in international practice. . . . . . 127 (d) Assessment. . . . . . . . . . . . . . . . 130 B.  Individuals as claimants in international fora.. 131 1.  Human rights bodies. . . . . . . . . . . . . 131 2.  Investment arbitration.. . . . . . . . . . . . 136

Chapter IV.  Regulatory challenges : competing institutions and legal orders. . . . . . . . . . . . . . . . 149 A.  Privatizing dispute resolution . . . . . . . . . . 1. Economic self-regulation – the case of ISDA. . . . . . . . . . . . . . . . . . . . . 2. Dispute resolution in international sports law .. . . . . . . . . . . . . . . . . . . . . . B. Private enforcement and public interest litigation : the case of data protection .. . . . . . . 1. The regulatory approach of the European Union. . . . . . . . . . . . . . . . . . . . . 2.  The 2016 General Data Protection Regulation. . . . . . . . . . . . . . . . . . . . . . (a)  Regulatory objectives.. . . . . . . . . . (b)  Public enforcement under the GDPR.. (c)  Private enforcement under the GDPR.. (d)  Data transfer to third States. . . . . . . C.  Cross-border enforcement of private claims by public authorities. . . . . . . . . . . . . . . . . 1.  Administrative co-operation with regard to the protection of children . . . . . . . . . . 2.  Administrative co-operation with regard to maintenance claims. . . . . . . . . . . . . .

150 150 154 162 162 163 165 166 168 173 176 177 182

Contents

Chapter V. Procedural challenges and changes  : commercial versus public law dispute settlement.. A.  International commercial arbitration. . . . . . . 1.  Arbitration as private dispute resolution. . . 2. The governance of international commercial arbitration.. . . . . . . . . . . . . . . . B.  The dissolution of investment arbitration. . . . 1. The concept of international public law arbitration. . . . . . . . . . . . . . . . . . . 2.  Procedural specificities of investment arbitration. . . . . . . . . . . . . . . . . . . . . C.  The unsettled situation of sports arbitration. . . 1. The Pechstein case. . . . . . . . . . . . . . 2.  Unlimited deferral to private dispute settlement  : Article 11 of the German AntiDoping Law of 2015. . . . . . . . . . . . .

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187 187 187 192 198 198 202 208 208 213

Chapter VI.  Does substance influence dispute resolution ?. . . . . . . . . . . . . . . . . . . . . . . . 217 A.  The first illusion : looking at domestic courts as decentralized international courts. . . . . . . 217 B. The second illusion : expecting international courts opening up remedies for individual grievances worldwide. . . . . . . . . . . . . . 222 C. The third illusion : privatizing dispute resolution is not a fully-fledged alternative to adjudication. . . . . . . . . . . . . . . . . . . . . . . 224

Chapter VII.  A tentative outlook on future avenues. A.  Empowering the individual : effective judicial protection in cross-border settings and the commercialization of individual claims. . . . . 1.  A closer look at the plaintiffs. . . . . . . . 2.  The Argentine bonds saga. . . . . . . . . . B.  Controlling and limiting extraterritorial regulatory interventions.. . . . . . . . . . . . . . . . C. Is there a third way ? Combining public and private approaches. . . . . . . . . . . . . . . . 1. Overcoming the one-sided approach of immunity. . . . . . . . . . . . . . . . . . . (a)  Acta jure gestionis versus balancing. . .

228 228 228 231 234 237 237 239

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(b)  Acta jure imperii and alternative remedies. . . . . . . . . . . . . . . . . . . . (c)  Acta jure imperii and subsidiary jurisdiction. . . . . . . . . . . . . . . . . . 2. The distinction between main and incidental questions. . . . . . . . . . . . . . . . 3. Applying mandatory laws (foreign and international). . . . . . . . . . . . . . . . . D.  Fragmentation and multiplication of processes. 1.  Splitting up disputes in parallel fora. . . . . 2.  The need to avoid duplicate litigation and double payments. . . . . . . . . . . . . . . 3. Procedural tools for the co-ordination of parallel claims.. . . . . . . . . . . . . . . . (a)  Waiver requirements. . . . . . . . . . . (b)  Election clauses.. . . . . . . . . . . . . (c)  Jurisdiction clauses. . . . . . . . . . . . (d)  The specific case of umbrella clauses .. 4.  The co-ordination of parallel cases . . . . .

241 243 246 251 255 256 262 265 266 268 269 270 272

Chapter VIII. Conclusion : the normative value of the private-public divide today. . . . . . . . . . . 275 Bibliography. . . . . . . . . . . . . . . . . . . . . . 279 Index. . . . . . . . . . . . . . . . . . . . . . . . . . 298

About the Author. . . . . . . . . . . . . . . . . . . . 308 Biographical note.. . . . . . . . . . . . . . . . . . 308 Principal publications. . . . . . . . . . . . . . . . 309

LIST OF ABBREVIATIONS

AC Law Reports, Appeal Cases ADAMS  Anti-Doping Administration & Management System Advocate General AG American Journal of International AJIL  Law Arbitration International Arb. Int’l Address Supporting Organization ASO  Alien Tort Claims Act (28 USC, ATCA  § 1350) BeckRS Beck-Rechtsprechung BerDGVR  Berichte der Deutschen Gesellschaft für Völkerrecht BGH Bundesgerichtshof (German Federal Court of Justice) Judgments of the German Federal BGHZ  Court of Justice in civil cases Bilateral investment treaty BIT Build, Operate and Own BOO Build, Operate and Transfer BOT Bundesverfassungsgericht (GerBVerfG  man Federal Constitutional Court) BVerfGE Judgments of the German Federal Constitutional Court Cour d’appel CA Court of Arbitration for Sport CAS Country code top level domain ccTLD C omprehensive Economic and CETA  Trade Agreement, signed on 30/10/2016 (OJ 2017 L 11/1) Law Reports, Chancery Division Ch. D.  Cornell Law Review Cornell L. Rev. Domain Name System DNS

14

Abbreviations

Duke J. Comp. & Int’l L.  Duke Journal of Comparative and International Law European Convention of Human ECHR  Rights Reports of Judgments and DeciECHR Report  sions of the European Court of Human Rights European Court of Justice ECJ The Energy Charter Treaty of ECT  17/12/1994 (2080 UNTS 95) European Court of Human Rights ECtHR European Court of Human Rights ECtHR (GC)  (Grand Chamber) European Journal of International EJIL  Law ELTE Law Journal ELTE Law J. Emory Law Journal Emory LJ Environmental Protection Agency EPA European Space Agency ESA European Union EU Regulation (EU) 1215/2012 of the EuGVVO  European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (OJ 2012 L 351/1, Brussels I bis) European University Institute EUI Court of Appeal (England and EWCA  Wales) Federal Reporter, Second Series F. 2d Federal Reporter, Third Series F. 3d Federal Supplement, Second Series F. Supp. 2d Federal Rules of Civil Procedure FRCP Federal Rules Decisions FRD Fair and equitable treatment FET Fédération Internationale de FootFIFA  ball Association Foreign Sovereign Immunities Act FSIA Free Trade Agreement FTA

Abbreviations

15

GDPR  General Data Protection Regulation: Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (OJ 2016 L 119/1) George Washington International Geo. Wash. Int’l L. Rev.  Law Review German Law Journal German LJ Generic Names Supporting OrganiGNSO  zation Generic top level domain gTLD 2007 Hague Child Support ConHCSC  vention : Convention on the International Recovery of Child Support and Other Forms of Family Maintenance of 23/11/2007, UNTS Reg. No. 51361 House of Lords HL Croatian Kuna HRK HUDOC Case Law Database of the HUDOC  ECtHR Iraqi Airways Company IAC Internet Assigned Names Authority IANA Internet Corporation for Assigned ICANN  Names and Numbers International Chamber of ComICC  merce International Court of Justice ICJ Reports of Judgments, Advisory ICJ Reports  Opinions and Orders of the International Court of Justice International and Comparative ICLQ  Law Quarterly International Journal of ConstituICON  tional Law International Centre for Settlement ICSID  of Investment Disputes

16

Abbreviations

ICSID Rev. ICSID Review International Law Commission ILC International Legal Materials ILM International Labour Organization ILO International Law Reports ILR Praxis des Internationalen PrivatIPRax  und Verfahrensrechts IPRspr  Die deutsche Rechtsprechung auf dem Gebiete des internationalen Privatrechts ISAF International Security Assistance Force International Swaps and DerivaISDA  tives Association Investor-State dispute settlement ISDS I nternational Organization for ISO  Standardization International Skating Union ISU IT Information Technology International Tribunal for the Law ITLOS  of the Sea Internationales ZivilverfahrensIZVR  recht JBl Juristische Blätter JIDS Journal of International Dispute Settlement Juristenzeitung JZ Kuwait Airlines Corporation KAC Law and Contemporary Problems L. & Cont. Probl’s London Court of International LCIA  Arbitration Leiden Journal of International Leiden J. Int’l L.  Law Limited Liability Company LLC Mixed Arbitral Tribunals MAT Most favoured nation MFN Directive 2004/39/EC of the EuroMiFID  pean Parliament and of the Council of 21 April 2004 on markets in financial instruments amending

Abbreviations

17

Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/ EEC (OJ 2004 L 145/1) Directive 2014/65/EU of the EuroMiFID II  pean Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (OJ 2014 L 173/ 349) Max Planck Encyclopedia of Public MPEPIL  International Law North American Free Trade AgreeNAFTA  ment North Atlantic Treaty Organization NATO Nebraska Law Review Nebr. L. Rev. Neue Juristische Wochenschrift NJW NSA National Security Agency NYC  New York Convention of 10/6/1958 (Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 330 UNTS 2) Organisation for Economic CoOECD  operation and Development Oberster Gerichtshof (Austrian OGH  Supreme Court) Official Journal of the European OJ  Union Over the counter OTC Permanent Court of Arbitration PCA Permanent Court of International PCIJ  Justice Collection of Judgments of the PCIJ Rep. Ser.  Permanent Court of International Justice Philip Morris Asia Ltd. PM Preliminary Document Prel. Doc. Law Reports, Queen’s Bench QB

18

Abbreviations

RabelsZ  Rabels Zeitschrift für ausländisches und internationales Privatrecht Recueil des cours Recueil des cours de l’Académie de droit international de la Haye RdW Recht der Wirtschaft Recueil des Décisions Recueil des Décisions des Tribu TAM naux Arbitraux Mixtes Rev. arb. Revue de l’arbitrage Rev. crit. Revue critique de droit international privé Riv. dir. int. priv. e proc. Rivista di diritto internazionale privato e processuale Riv. dir. int. Rivista di diritto internazionale RIW  Recht der internationalen Wirtschaft RSCAS  Robert Schuman Centre for Advanced Studies Supreme Court Reporter S. Ct. United States District Court for the SDNY  Southern District of New York SC Security Council Supreme Court of Canada SCC Zeitschrift für Schiedsverfahren SchiedsVZ SJZ Schweizerische Juristen-Zeitung SW L. Rev. Southwestern Law Review TFEU  Treaty on the Functioning of the European Union (OJ 2012 C 326/ 47) Transatlantic Trade Investment TTIP  Partnership United Kingdom UK United Kingdom House of Lords UKHL United Kingdom Supreme Court UKSC United Nations UN United Nations Convention against UNCAC  Corruption U nited Nations Compensation UNCC  Commission United Nations Commission on InUNCITRAL  ternational Trade Law

Abbreviations

19

UNCSI  United Nations Convention on Jurisdictional Immunities of States and Their Property, adopted on 2/12/2004 by the General Assembly of the United Nations United Nations Educational, ScienUNESCO  tific and Cultural Organization UNTS United Nations Treaty Series United States Reports US United States US United States Code USC United States Racketeer Influenced US RICO  and Corrupt Organizations Act (18 USC, §§ 1961-1968) USD United States Dollar Virginia Law Review Va. L. Rev. Value Added Tax VAT Vienna Convention on the Law of VCLT  Treaties of 23/5/1969 (1155 UNTS 331) Virginia J. Int’l L. Virginia Journal of International Law World Anti-Doping Agency WADA World Health Organization WHO World Intellectual Property OrgaWIPO  nization WestLaw WL Yale Law Journal Yale LJ Yearbook Commercial Arbitration YB Comm. Arb. Yearbook of the International Law YbILC  Commission Zeitschrift für ausländisches öffentZaöRV  liches Recht und Völkerrecht ZIP Zeitschrift für Wirtschaftsrecht ZPO Zivilprozessordnung ZZP Zeitschrift für Zivilprozess ZZPInt  Zeitschrift für Zivilprozess International

CHAPTER I

INTRODUCTION A.  A Classical, but Controversial Distinction 1. Almost every legal system knows the distinction between private and public law 1. According to the usual understanding, “private” legal relationships arise between individuals and businesses within a society while public law regulates the activities of the State (including those of public authorities). Primarily, the divide applies to substantive law. With regard to dispute resolution, the divide delineates the jurisdiction of different courts (civil and administrative) where different procedures are applied. This distinction is primarily found in continental law systems, but it is not unknown in the common law world 2. The paradigm has often been applied in international law : here private international   It goes back to Ulpian in the Corpus Iuris Civilis 1.1, § 2 : “Huius studiae duae sunt positiones, publicum et privatum. Publicum ius est quod ad statum rei romanae spectat. Privatum quod ad singulorum utilitatem.” Cf. Supiot, “The PrivatePublic Relation in the Context of Today’s Refeudalization”, ICON 11 (2013), 129 – although I do not endorse the polemic against party autonomy expressed in his article. For a more balanced assessment, cf. Auer, Der Privatrechtliche Diskurs der Moderne (2014), pp. 63 et seq. 2  It must be mentioned that in the Common Law the divide is sometimes understood as delineating criminal from civil law, cf. Nygh and Pocar, Report on the Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters, Hague Conference on Private International Law, Preliminary Document No. 11 of August 2000, p. 31. Yet, also the Common Law distinguishes between sovereign and non-sovereign acts, see infra at paras. 23 et seq. Functionally, both approaches are not fundamentally 1

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law is understood as addressing the cross-border legal relationships between businesses and individuals, especially in transnational commerce or in family matters, while public international law concerns the relationship between States and other subjects of public international law 3. The divide is explicitly found in many instruments of international procedural law, where it operates to limit their material scope of application to civil and commercial matters 4. A prominent example is found in Article 1 (1) of the Brussels I bis Regulation 5 which reads as follows : “This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters or the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii).” 6 different and recognize a core understanding of public acts (to be distinguished from private activities). 3  This was the “classical” understanding in the beginning of the twentieth century, see Parlett, The Individual in the International Legal System (2011), pp. 3 et seq. ; the divide is criticized but still valid in international law, see Chinkin, “A Critique of the Public Private Dimension”, EJIL 10 (1999), 387 et seq. 4   Hess and Oro, “Civil and Commercial Matters”, in Basedow, Rühl, Ferrari and de Miguel Asensio (eds.), Encyclopedia of Private International Law (2017), pp. 347 et seq. ; Arnold and Garber, “Zur Trennung privater und hoheitlicher Tätigkeit im IZVR”, ZZPInt 20 (2015), 171, 172 et seq. 5   Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), OJ 2012 L 351/1. 6   Identical formulations are found in Art. 1 (1), Service Regulation ; Art. 2 (1), European Regulation on Uncontested Claims ; Art. 1 (2) of the European Payment Order Regulation ; Art. 2 (1), European Small Claims Regulation ; Art. 2 (1), European Asset Preservation Order Regulation.

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2.  By addressing “acta jure imperii”, European civil procedural law makes an interesting reference to public international law, namely to the regime of sovereign immunities which exempts acta jure imperii from the jurisdiction of domestic courts 7. Consequently, disputes concerning primarily issues relating to acts of a foreign (public) authority are excluded from the scope of the instruments on international co-operation between municipal courts. In this context, the question arises whether (and to what extent) alternative remedies under (public) international law are available when judicial protection in municipal courts is excluded. This classical perspective will be the first examined in this course 8. 3. An additional delineation between “public and private” relates to different bodies of dispute settlement : namely, State courts and “private” settlement bodies, especially arbitral tribunals 9. This delineation can also be found on the international stage where the adjudication of inter-State disputes is distinguished from the settlement of commercial disputes by arbitration. This delineation has much to do with the regulatory approaches adopted in relation to dispute resolution – this focus will be an additional layer of this course.   See infra at para. 23. The German Government had strongly advocated its insertion in the aftermath of the case C-292/05, Lechouritou and Others, EU :C :2007 :102, where on 15 February 2007 the ECJ denied any human rights exception from the concept of acta jure imperii, cf. Schlosser, in Schlosser and Hess, Europäisches Zivilprozessrecht (Commentary 2015), Art. 1, EuGVVO, paras. 3 and 4. 8  Although I call this perspective “classical”, it is not old. The distinction between acta jure gestionis and jure imperii has been accepted by almost all States in the fourth quarter of the last century. Still the distinction is not yet universally accepted ; on the Chinese position regarding State immunity see Fox and Webb, The Law of State Immunity (3rd ed., 2015), p. 165. 9   Michaels, International Arbitration as Private and Public Good (2017 – on file with the author). 7

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4. In these different settings, the private-public dichotomy does not provide for a clear dividing line. In municipal law, it usually delineates the regulatory force of the State against the market and societal sphere of the individual. However, it is well recognized that public authorities and other State entities may equally enter the market and that private actors are sometimes empowered to regulate 10. Moreover, if one regards the division of public and private law through the lens of comparative law, the situation becomes even more blurred  : the delineation is different in almost each domestic legal order as the issue is not systematically settled but has developed in “historical contexts” 11. Therefore, it is not possible to provide for a definition which is accepted globally. Nevertheless, there is a core understanding of State or public actions, but – as I would like to demonstrate – the dividing line has become blurred during the last 25 years. 5. A similar situation is found at the international level : until 1945, international law primarily applied to States and (very few) international organizations 12 ; private international law designated the domestic rules applicable to a given cross-border case arising among private parties. Seventy years later, the setting has changed  : international organizations (especially the United Nations and its sub-organizations) have become all-embracing actors and rule-makers in the international arena. They are empowered to enact soft rules, but also   Hodges and Creutzfeld, “Transformations in Public and Private Enforcement”, in Micklitz and Wechsler (eds.), The Transformation of Enforcement (2016), pp. 115, 116 et seq. 11   Nevertheless, this explanation does not preclude further enquiries about the “true” rationale of the distinction. 12  This did not exclude its application between States and individuals which was nevertheless exceptional, K. Parlett, The Individual (2011), pp. 65 et seq. See infra at para. 83. 10

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mandatory rules which address not only their Member States but equally target individuals 13. 6.  Furthermore, new actors embark on and construct international relations. These developments are marked by the growing influence of so-called non-State actors in international exchanges, like non-governmental organizations, trade unions, hedge funds and other process financers 14. They have become more and more professional and well organized. Other developments relate to the privatization and internationalization of rule-making in many areas such as financial markets 15, the Internet 16, or to data exchanges at a

 The most prominent example are the sanctions of the UN Security Council against (alleged) terrorists after the attacks of 9/11, see ECJ, 18/7/2013, case C-584/10 P, Commission and Others v. Kadi, EU :C :2013 :518 ; ECJ, 28/3/2017, case C-72/15, Rosneft, EU :C :2017 :236. 14  See infra at paras. 205 et seq. 15  The standardization of financial products is organized at the global level by the International Swaps and Derivatives Association, a trade association which was founded in 1985 under the law of New York. Its more than 820 members from more than 56 countries comprise all major banks, financial authorities, service provider and (individual) professional traders of SWAPS and over the counter derivatives (OTC). The ISDA Master Agreement of 2002 provides for a standard framework contract which is usually used by private parties to enter into derivative transactions. ISDA comprehensively develops linguistic, legal and technical standards for derivate transactions, www2.isda.org, see infra at paras. 126 et seq. 16   Partially regulated by ICAAN, the Internet Corporation for Assigned Names and Numbers, an association organized by the laws of California in 1998. The organization is in charge of maintaining the domain name system root zone, cf. Mariottini, “Top-Level Domains and ADR  : What Protection of Consumer Interests under ICANN’s New gTLD Program ?”, in Hess, Bergström and Storskrubb, EU Civil Justice – Current Issues and Future Outlook (2016), pp. 57 et seq. See infra at paras. 75 et seq. 13

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global level 17, to growing commerce and production processes in cross-border settings and, last but not least, to increasing direct investment by private and public entities 18. 7. From a legal point of view, the most interesting situations occur when the two spheres, public and private, interact. This interaction can take different forms : public and private actors may set up new international bodies 19 (like an international private-public partnership  ), public and private creditors may act within an informal institutional framework (like the London and the Paris clubs settling distressed State bonds 20) ; private regulatory standards may be engaged in international law-making (such as the WADA Anti-Doping Code by the UNESCO Anti-Doping Convention 21). Public actors may also use private law (tools) for the cross-border enforcement of   Cooper and Kuner, “Data Protection Law and International Dispute Resolution”, Recueil des cours 382 (2017), paras. 1.09-1.16. A related development is the “information boom” about international actors and institutions by websites and online sources (like Facebook, Twitter and blogs), Neumann and Simma, “Transparency in International Adjudication”, in Binachi and Peters (eds.), Transparency in International Law (2013), pp. 436 et seq. 18   Sauvant, Sachs and Schmit Jongbloed, Sovereign Investment Concerns and Public Reactions (2012). 19   On sovereign wealth funds see van Aaken, “Blurring Boundaries between Sovereign Acts and Commercial Activities : A Functional View on Regulatory Immunity and Immunity from Execution”, in Peters et al. (eds.), Immunities in the Age of Global Constitutionalism (2015), pp. 131, 133 et seq. 20  See Benninghofen, Die Staatsumschuldung (2014), pp. 76 et seq. 21   UNESCO International Convention against Doping in Sport, 19 October 2005, 2419 UNTS. This Convention has been ratified by more than 170 States. Casini, “ ‘Down the RabbitHole’ : The Projection of the Public/Private Distinction beyond the State”, International Journal of Constitutional Law 12 (2014), 402, 409 et seq. 17

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public interests 22. This course will address this “grey area” of the disputed borderland between the public and the private sphere .23 8. With regard to dispute resolution, similar developments can be found. In private international law, the number of cross-border cases has grown considerably : this is mainly due to the expansion of international commercial arbitration under the New York Convention 24 of 1958  . Another example is the establishment and expansion of sports arbitration 25. Online dispute resolution (and its deferral to private businesses) is an additional area of expansion (and sometimes of concern) 26. In regional contexts, the frequency and scope of cross-border civil litigation has also expanded, especially when the pertinent instruments provide for an efficient framework with foreseeable outcomes. The most prominent example in this respect is the European Union, advanced by the Brussels Regulations – the   See infra at paras. 54 et seq.   Collins, “F. A. Mann”, in Zimmermann and Beatson (eds.), Jurists Uprooted (2004), pp. 381, 392 et seq. ; Oeter, “The Law of Immunities as a Focal Point of the Evolution”, in Peters et al. (eds.), Immunities in the Age of Global Constitutionalism (2015), pp. 355 et seq. 24   Born, International Arbitration  : Law and Practice (2nd ed., 2014), Vol. I, pp. 93 et seq., providing statistics for the increasing use of international commercial arbitration. The total number of international cases administered by leading arbitral institutions rose from 1,921 in 1995 to 4,899 in 2000 and to 7,776 in 2011. 25   Since its establishment in 1986, 5,057 cases have been decided within the CAS. In 2000, 76 cases were decided, in 2010 298 cases and in 2016 599 cases, see http ://www.tascas.org/fileadmin/user_upload/CAS_statistics_2016_.pdf. 26   Haber, “Privatization of the Judiciary”, Seattle Univ. L. Rev. 40 (2016), 116 et seq. ; Schultz, “Carving up the Internet : Jurisdiction, Legal Orders, and the Private/Public International Law Interface”, EJIL 19 (2008), 799 et seq. ; see infra at paras. 75 et seq.

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regime will celebrate its 50th anniversary next year 27. A similar, but more confined framework has been created by the Lugano Convention 28. Today, powerful and welladvised litigants often have a choice of where to bring the claim : whether in State courts, in arbitration tribunals, sometimes also before human rights tribunals and/ or investment arbitration bodies 29. Outside of regional frameworks, cross-border litigation has equally grown considerably in the area of globalization 30. 9.  In international law, the number of cases arising in international fora has also increased since the 1990s 31. This development relates not only to the protection of human rights (primarily by regional courts 32) and to   Hess, “The State of the Civil Justice Union”, in Hess, Bergström and Storskrubb (eds.), EU Civil Justice (2016), pp. 1 et seq. 28  The Lugano Convention of 30 October 2007, OJ 2007 L 339/3, extends the Brussels I regime to Iceland, Norway and Switzerland. 29   Ferrari, “Introduction”, in Ferrari (ed.), Forum Shopping in the International Commercial Arbitration Context (2013), pp. 1, 16 et seq. A pertinent example of a multi-level dispute is the ongoing Greek bonds litigation, infra at paras. 235 et seq. 30   Statistics about litigation do not exist. A pertinent example are global class actions composed of plaintiffs domiciled in different continents, see recently C. A. Ghent, 27/3/2017, recognizing an American class action settlement (based on opt out), available at : https ://www.rechtbanken-tribunaux. be/sites/default/files/public/content/lh_-_geanonimiseerd. pdf. 31  Alter, The New Terrain of International Law, Courts, Politics and Rights (2014), pp. 68 et seq. (counting 6 international permanent courts between 1945 and 1989 which had collectively issued 373 binding judgments ; whereas since 1989, 24 permanent international courts issued (until December 2013) more than 37,000 judgments. Although one might criticize the way in which the figures have been established, the increase in case law is remarkable. 32   On 31 December 2016, no less than 79,750 applications were pending in the European Court of Human Rights, Annual 27

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33 investment arbitration  , but also affects “classical” dispute resolution mechanisms as the (steadily growing number of cases at the) ICJ 34 or the inter-State arbitration in the PCA illustrates 35. Furthermore, additional international fora attract disputes under international law ; the most prominent are the Appeal Boards of the WTO 36 and inter-State disputes at ITLOS 37. As a result, the fragmentation of the current trends in dispute resolution in international law has become a widely discussed issue 38 – as has the delineation of these international

Report, 2016, p. 191, http ://www.echr.coe.int/Documents/ Annual_report_2016_ENG.pdf. 33  As of 31 December 2016, ICSID had registered 597 cases under the ICSID Convention and Additional Facility Rules. Since the Millennium, the average number of cases filed per year is between 30 and 50, The ICSID Caseload – Statistics (Issue 2017-1), p. 7, https ://icsid.worldbank. org/en/Documents/resources/ICSID%20Web%20Stats%20 2017-1%20(English)%20Final.pdf. 34   For an overview of cases until December 2013, see the International Court of Justice, Handbook, pp. 69 et seq., available at : http ://www.icj-cij.org/publications/en/manuel_ en.pdf. 35   In 2016, the PCA rendered registry services in 148 cases, 40 of which were initiated that year. 7 cases were interState arbitrations, 1 was inter-State conciliation, 86 investor-State arbitration, 51 arbitrations involving States, intergovernmental organizations or State entities. Cf. PCA Annual Report 2016, pp. 18 et seq. The number of requests as an appointing authority grew from 101 (2001-2005) to 306 (2011-2016). 36   Lowenfeld, International Economic Law (2nd ed., 2009), pp. 162 et seq. The WTO dispute settlement system is not a subject of this course. 37  As of 3 May 2017, 25 cases were decided by the ITLOS, https ://www.itlos.org/cases. In addition, inter-State disputes are often decided by ad hoc tribunals established under Annex VIII of UNCLOS. Often, these tribunals are administered by the PCA. 38   Koskenniemi, Fragmentation of International Law : Difficulties Arising from the Diversification and Expansion of

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bodies with regard to the settlement of disputes in public and private international law 39. 10.  This course will address the present situation of dispute resolution from the perspective of the privatepublic divide : its aim is not only to separate the different areas but also to search for bridges and interfaces. As I will try to explain : both the areas of public and private international law may (and should) play a complementary role in the resolution of international disputes 40. This is the third, and indeed the overarching, perspective of the course. B.  New Conceptual Approaches and Challenges 11.  Against the backdrop of the expanding development of international law and international relations, the utility of the private-public divide has been criticized and indeed its existence has even been denied 41. This International Law, International Law Commission Study Group, A/CN.4/L.682 (13 April 2006). 39   See infra at paras. 235 et seq. 40   In practice, the combined use of private and public remedies has become a strategy of (experienced) litigators, cf. King and Moloo, “Enforcement after the Arbitration  : From National Courts to Public International Law Fora”, in Ferrari (ed.), Forum Shopping in the International Commercial Arbitration Context (2013), pp. 393 et seq. (on the strategic use of investment arbitration and the First Protocol to the ECHR for enforcement purposes of arbitral awards). 41   Most prominently : Koh, “Transnational Legal Process”, Nebr. L. Rev. 75 (1996), 181 et seq., at 186 ; Damrosch, “Enforcing International Law through Non-Forcible Measures”, Recueil des cours 269 (1997), 1, 155 et seq. ; Slaughter, A New World Order (2005), pp. 65 et seq. and 85 et seq. ; Steinitz, “Transnational Legal Process Theories”, in Oxford Handbook of International Adjudication (2015), 340, 342 et seq. From a “private international law” perspective Muir Watt, “The Relevance of Private International Law to the Global Governance Debate”, in Muir Watt and Fernández Arroyo (eds.), Private International Law and

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critique comes mainly from the doctrine in public international law. In the 1990s, the (new) New Haven School developed a concept of “transnational litigation” whereby it was considered that domestic courts play a major role in the direct enforcement of international law against foreign Governments, international organizations and (predominantly) multinational enterprises 42. The basic idea was to empower the individual (victim) in order to allow him to seek directly the recovery of damages (allegedly) arising from the violation of international law. According to this conceptual approach, domestic courts should adjudicate claims against sovereign perpetrators based on international law. Although this approach mainly addressed the specific instances of litigation arising in US courts under the Alien Tort Claims Act 43, it has also been tested in other countries 44. Nevertheless, on balance one must note that there is a considerable reluctance of civil courts to spearhead the direct enforcement of individual (or even collective) claims against international actors 45. Global Governance (2014), pp. 1, 3 : “collapse of the public/ private divide”. 42   O’Connell, The Power and Purpose of International Law (2011), pp. 327 et seq. 43   28 USC, § 1350. In Kiobel v. Royal Dutch Petroleum Co., 132 S. Ct. 1738 (2013), the US Supreme Court applied the presumption against extra-territoriality to the Alien Tort Statute, making it unlikely that the statute will provide the basis for future claims against foreign defendants (States and corporate actors), see infra at para. 69. 44   In Canada and in the United Kingdom, recently in the Netherlands, cf. Roorda and Ryngaert, “Business and Human Rights Litigation in Europe and Canada : The Promises of Forum of Necessity Jurisdiction”, RabelsZ 80 (2016), 784, 791 et seq. 45  Ward, “National and International Litigation  : Partners or Competitors”, in Klein (ed.), Litigating International Law Disputes (2014), pp. 42, 47 et seq. (analysing the practice of Australian courts). Different opinion, Peters, “Immune against Constitutionalization ?”, in Peters et al. (eds.), Immunities in the Age of Global Constitutionalism

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12. Another conceptual approach perceives the expansion of international norms and standards through the lens of international administrative or “public” law 46. This academic school obviously engages the privatepublic divide, but does so while looking in a different direction : the underlying idea assumes that “public” law is better suited to address the features of contemporary regulation by international actors (including States) adequately 47. Here, the basic idea is to address the exercise of “authority” at an international level with recourse to general principles of accountability, the rule of law and democracy, which limit the exercise of public authority. The general principles applied are considered to be principles of global governance and administrative law. The origins of this school of thought are found not only in political science (mainly in international relations) but also in the law and practice of the internal review bodies of international organizations 48. From this perspective, domestic and international courts are not only considered to be dispute facilitators but rather also entities which exercise control over powerful actors as well as rulemakers 49. (2015), pp. 1, 14, who asserts a growing willingness of domestic courts to apply “balancing techniques” in order to accommodate private and public interests. 46  The most prominent approach in this respect is found in global administrative law, Krisch and Kingsburg, “Introduction : Global Governance and Global Administrative Law in the International Legal Order”, EJIL 17 (2006), 1 et seq. ; Goldmann, Internationale öffentliche Gewalt (2014), pp. 319 et seq. 47   It goes without saying that this approach will be scrutinized very closely by this course, see infra at paras. 167 et seq. 48   Ulfstein, “Institutions and Competences”, in Klabbers, Peters and Ulfstein (eds.), The Constitutionalization of International Law (2009), pp. 45, 64 et seq. 49   Bogdandy and Venzke, In wessen Namen ?, pp. 283 et seq. ; Benvenisti, “The International Law of Global Governance”, Recueil des cours 368 (2013), 223 et seq., 244 et seq.

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13.  A specific focus of the global public law approach relates to dispute settlement : in this context, the delineation of investment and commercial arbitration has become a major issue – some authors try to recalibrate the system by stressing the “public law character” of investment disputes 50 – although the procedures applied are largely borrowed from international commercial arbitration 51. The more fundamental question relates to accountability and to the legitimacy of domestic and international dispute settlement bodies and the (review) procedures applied 52. In the context of CETA 53 and TTIP 54, this approach has become a matter of political debate and the idea of setting up a Multilateral Investment Court is being discussed today by the negotiators 55.   Roberts, “Clash of Paradigms : Actors and Analogies Shaping the Investment Treaty System”, AJIL 107 (2013), 45, 62 et seq. ; Schill, “International Investment Law and Its Discontents”, in idem (ed.), International Investment Law and Comparative Public Law (2010), pp. 3 et seq. ; van Harten, Investment Treaty Arbitration and Public Law (2007), pp. 180 et seq. ; against this tendency Alvarez, “Is InvestorState Arbitration ‘Public’ ?”, Journal of International Dispute Settlement (2016), pp. 534 et seq. 51  This origin of investment dispute resolution is often criticized as an inherent weakness of the system, Schill, in idem (ed.), International Investment Law and Comparative Public Law, pp. 3, 7 et seq. See infra at paras. 167 et seq. 52   Bogdandy and Venzke, In wessen Namen ?, pp. 136 et seq. (stressing the need for democratic legitimacy). 53   Comprehensive Economic and Trade Agreement between Canada and the European Union and Its Member States (CETA, signed 30/10/2016) ; available at http ://ec.europa. eu/trade/policy/in-focus/ceta/index_en.htm. 54  Transatlantic Trade Investment Partnership under negotiation between the United States and the European Union, see http ://ec.europa.eu/trade/policy/in-focus/ttip/index_en. htm. 55  The EU Commission’s position is summarized in the position paper of 21/12/2016, at : http ://trade.ec.europa.eu/ doclib/press/index.cfm ?id=1608. In July 2017, UNCITRAL decided to consider ISDS, too, cf. http ://www.unis.unvienna. org/unis/en/pressrels/2017/unisl250.html. 50

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14. Finally, a third theoretical approach that has been developed is based on the idea of “global constitutionalism” : Here, the focus lies on the idea that the international community as a legal order is based on fundamental values and principles and that human rights play a decisive role in law-making and dispute resolution 56. According to this methodological approach, the position of the individual has to be reinforced in the sense that subjectivity and legal standing should be accorded to the individual in public international law 57. In the same vein, some authors argue that the immunities of States and international organizations should be minimized in order to ensure they can be held accountable for violations of international law in domestic courts. Against this backdrop, some authors argue for a (kind of) balancing between the individual’s access to justice and the claim of sovereign prerogatives 58. However, replacing immunities with a “balancing test” might finally entail the abolition of immunity as a delineation tool between domestic and international dispute settlement. From a procedural perspective, replacing an established set of rules with a balancing test (at the admissibility stage of a lawsuit) does not correspond to the fundamental requirement of predictability in (international) dispute settlement 59.  This concept is also found in private international law, cf. Muir Watt, “Private International Law beyond the Schism”, Transnat’l Legal Theory 2 (2011), 347 et seq. 57  This approach was summarized by Bianchi, International Law Theories (2016), pp. 44 et seq. (with further references) ; recently Benvenisti, Recueil des cours 368 (2013), 221 et seq. 58   Peters, in Peters et al. (eds.), Immunities in the Age of Global Constitutionalism (2015), pp. 1, 14 et seq. ; contrary opinion : Tomuschat, in Peters et al. (eds.), Immunities in the Age of Global Constitutionalism, pp. 87 et seq. 59   In the framework of the Brussels I bis Regulation, the ECJ constantly stresses the need of predictability and legal certainty, cf. ECJ, 6/10/76, case 14/76, De Bloos/Bouyer, 56

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C.  Dividing and Bridging – the Approach of this Course 1.  Different applications of the divide 15. This course will focus on these phenomena from a distinct perspective. It does not aim to develop a theoretical framework or model of transnational disputes, but rather to look at and scrutinize solutions developed by courts and arbitral tribunals in concrete cases 60. This perspective allows for practical cases where the overlap of the two areas becomes evident to be addressed. Accordingly, the course shall strive to provide a critical assessment of the solutions and the arguments developed by national courts and international tribunals, and by legal doctrine 61. 16. The perspective adopted is not new : already in 1923, the American-Mexican Claims Commission 62 developed a systematic approach by distinguishEU :C :1976 :134 ; cf. Hess, Europäisches Zivilprozessrecht (2010), § 4 II, para. 81. See also Recital 15 of the Brussels I bis Regulation. Generally, continental law puts more emphasis on legal certainty and predictability regarding jurisdiction than the common law. 60   Generally, private international law (including international procedural law) is more reluctant with regard to political and (highly) theoretical approaches compared to public international law, see Mansel, “Privatrechts-dogmatik und Internationales Privatrecht”, Festschrift Canaris zum 80. Geburtstag (2017), pp. 739 et seq. 61  As a starting point, this course takes up a positive stance : my aim is not to develop a new, sophisticated theory (or a model) of how to understand the present situation, but to regard the present situation from (hard) case law in order to get a better understanding of the interplay between private and public rights or interests in transnational settings. 62  American-Mexican Claims Commission, Illinois Central Railroad Co. – Case, Opinions of the Commission under the Convention concluded 8 September 1923 between the United States and Mexico, I RIAA IV, 21, 23-24.

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ing the following four constellations of international claims : “(1) Claims as between a national of one country and a national of another country. These claims are international even in cases where international law declares one of the municipal laws involved to be exclusively applicable. (2) Claims as between 63 two national Governments in their own right  . (3) Claims as between citizens of one country and the Government of another country in its public capacity 64. (4) Claims as between a citizen of one country and the Government of another country acting in civil capacity. These claims, too, are international in character and they, too, must be decided in accordance with the principles of international law, even in cases where international law should merely declare the municipal law of one of the countries involved to be applicable.” 65 This classification seems to continue to provide a valuable approach although today there might be additional case groups and additional constellations 66. Nevertheless, the basic distinction made in 1923 by the American-Mexican Claims Commission is still illustrative for the core issues of the private-public divide because it demonstrates that  These claims are settled under public international law, infra at paras. 83 et seq.   Here the question arises whether and to what extent the legal relationships are of a private or a public law nature. This issue relates to the core subject matter of this course, see infra at paras. 23 et seq. 65  Today, these constellations would mostly qualify as commercial transactions giving rise to litigation in domestic courts or to international arbitration. 66  Today, one has to add the exercise of authority and transactions made by international organizations and the growing use of (commercial) arbitration in international matters. 63 64

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dispute resolution in international law comprises both sides : private and public 67. 2.  The three main functions of the divide 17.  This course will look at the private-public divide from a different angle by focusing on three different functions of the divide which can be described as follows : firstly, the divide applies to international litigation in domestic courts. Here, the main focus addresses the limits of domestic jurisdiction in public international law. Sovereign acts of foreign States and public authorities are not subject to the jurisdiction of the courts of other States when the foreign State or its entities are sued as a party, unless the latter submit explicitly to the jurisdiction of the (foreign) courts 68. Conversely, foreign States are not permitted to bring public claims in the civil courts of other States 69. As a matter of principle, these principles also apply to international organizations 70. Yet, this (allegedly) clear-cut concept has come under scrutiny, mainly as a result of the new concept of enforcing public interests by private remedies. 18. Secondly, the divide applies to the delineation between remedies in domestic and public international law. The basic idea here is that cases which are not litigated in State courts will be resolved by international dispute settlement. However, this logic is much more  This conceptual framework was taken up by Lipstein, Transactions of the Grotius Society, 27 (1941), 51, 52-53 ; and revisited 60 years later in the Festschrift Max-PlanckInstitut für Privatrecht (2001), pp. 713 et seq. 68   So far, a human rights exception has not been admitted in international law, see infra at para. 34. 69   See infra at paras. 54 et seq. 70   It must be noted that the immunities of international organizations are based on a functional approach. According to this concept, immunities are accorded to an international organization whenever it is necessary to protect (and shield) the exercise of its conferred functions. 67

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controversial and it does not correspond fully to international practice in general. On the one hand, as I will show below, the classical instrument of diplomatic protection which enables the State to present the claims of its citizens at the international level was never confined to public law claims 71. On the other hand, modern dispute resolution mechanisms enable the individual to pursue his or her claim independently from its espousal by the home State at the international level 72. Here, the delineation according to the private-public divide has become much more complicated and blurred. 19. The third dimension of the divide relates to the delineation of private and State justice. Here, international arbitration is permitted as private justice and is largely supported by the New York Convention (NYC) of 1958. International arbitration is based on the parties’ consent and is largely administered and supported by international arbitration institutions (both private and public in their nature). Interestingly, the NYC does not mention the private-public divide as it applies to international arbitration 73. However, there is no doubt that the NYC mainly addresses commercial arbitration. Yet, the Convention is also applied to investment disputes notwithstanding that most of these disputes are decided under the ICSID and (today) under the PCA frameworks 74. In the context of investment arbitration, the divide has reappeared in the legal doctrine but from a different angle : some scholars 75 have developed the concept that investment arbitration relates to public law and, as such, should be clearly distinguished   Infra at paras. 83 et seq.  The most important developments relate to human rights bodies and to investment protection. 73  But see Article I (3), NYC, which permits States parties to reduce the scope of the NYC to commercial disputes. 74   See infra at paras. 163 et seq. 75  See supra at footnote 49. 71 72

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from commercial arbitration. In addition to this, a further delineation between commercial arbitration in private international law and dispute settlement under international law must be drawn. Here again, the privatepublic divide becomes applicable. 20. The borderline between private and public international law has also been a recurrent topic of The Hague Academy of International Law since Frederic Alexander Mann addressed it in his lectures of 1964 76 and 1971 77, Andreas Lowenfeld did so in his lecture of 1979 78 and since it was the focus of the 79 General Course of 1994  . The (new) New Haven School, the Global Administrative Law movement as well as the global constitutionalism scholarship also influenced the programme of The Hague Academy 80. Issues of concurrent jurisdiction between (and among) domestic and international courts and tribunals have been addressed by Campbell McLachlan 81. From the perspective of private international law, Jürgen Basedow scrutinized “Private Ordering and Public Regulation of International Relations” in his General Course of 2013 82. Recently, Daniel Cooper and Christopher Kuner wrote about the regulatory aspects of data protection from both   Mann, “The Doctrine of Jurisdiction in International Law”, Recueil des cours 111 (1964), 9 et seq.   Mann, “Conflicts of Laws and Public Law”, Recueil des cours 132 (1971), 109 et seq.“ 78   Lowenfeld, “Public Law in the International Arena : Conflict of Laws, International Law, and Some Suggestions for Their Interaction”, Recueil des cours 163 (1979), 315 et seq. 79   Lowenfeld, “International Litigation and the Quest for Reasonableness”, Recueil des cours 245 (1994), 13 et seq. 80   Koh, “International Business Transactions in United States Courts”, Recueil des cours 261 (1996), 13 et seq. 81   McLachlan, “Lis pendens in International Litigation”, Recueil des cours 336 (2008), 203 et seq. 82   Basedow, “The Law of Open Societies – Private Ordering and Public Regulation of International Relations”, Recueil des cours 360 (2012), 13 et seq. 76 77

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public and private law perspectives 83. This list is not at all exhaustive but gives the reader an idea of the research already made with regard to the divide. 21. The objective of the course is to elucidate the relationship between domestic and international dispute settlement according to the actors involved, the issues addressed and the procedures applied. It will address the latest developments by following the three functions of the concepts described above (paras. 17-19). However, the fundamental question that arises is whether the private-public divide is (still) an appropriate regulatory tool to delineate different fora and ways of dispute resolution. In order to better understand the current situation, the course starts from “classical international law” after World War II. Although neither the domestic nor the international public and private divide had ever been clear, the basic approach to the distinction was clearer at this time. In a second step, recent developments in international practice, legal theory and the respective case law of national courts and (arbitral) tribunals will be scrutinized. This course will end with a third step, asking whether the high expectations with regard to the possible progress in international dispute settlement of the post-millennium are still valuable today and whether and to what extent a more “realistic” look at international law and its interchanges with private international law is needed. 22. Finally, I would like to clarify my personal stake here : this course addresses the divide from the perspective of private international law focusing on the context and the background of proceedings where the divide is applied. However, developments in public international law will be addressed too, in order to

83

  Cooper and Kuner, Recueil des cours 382 (2017), 15 et seq.

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obtain a comprehensive view on the current situation 84. As a matter of principle, it is my understanding that legal doctrine has a specific function in guaranteeing the function and justice of a given regulatory system. Accordingly, legal science has the task to clarify and to explain the state of affairs and to – cautiously – pave the way for future development 85.

  It seems that there are even underlying psychological assumptions that either the “public” or the “private” side is superior to the other one. This approach becomes clear if one regards the divide through the lenses of feminist studies where the private side is regarded as a tool to make women invisible whereas men are dominant in the public (sphere), cf. Chinkin, EJIL 10 (1999), 387, 389 et seq. A similar idea of “publicness” being the better approach for regulation is made by von Bogdandy, Goldmann and Venzke, “From Public International to International Public Law : Translating World Public Opinion into International Public Authority”, EJIL 28 (2017), 115, 118 et seq. The same doctrinal approach is also found in the private law sphere, especially in the discussions about a transnational arbitral order where private law solutions are considered as more desirable than those of public law, see Gaillard, “Aspects philosophiques du droit de l’arbitrage international”, Recueil des cours 329 (2007), 53, 62 et seq. 85   From a conceptual point of view this course is largely based on a constitutional and positivist perception of international law, as described by Bianchi, International Law Theories (2016), pp. 44 et seq. 84

CHAPTER II

THE DOMESTIC PERSPECTIVE : SEPARATING DOMESTIC LITIGATION FROM FOREIGN AND INTERNATIONAL ADJUDICATION A.  Sovereign Immunity 1.  The 2004 UN Convention on State Immunity 23. Sovereign immunity is the classical “tool” of public international law that is engaged to delineate domestic and international disputes by means of the private-public divide 86. Whenever a State 87 is sued in a foreign court, international customary law prohibits any litigation unless the case falls under one of the recognized exceptions from immunity from adjudication 88. Such recognized exceptions apply when the defendant State waived its claim to immunity 89 or the claim relates to the commercial activities of the defendant State. Commercial   Oeter, in Peters et al. (eds.), Immunities, pp. 355, 356 et seq. summarizing diverging conceptual approaches to sovereign immunity ; similarly Fox and Webb, State Immunity (2015), pp. 1-5 (summarizing three different models of State immunity : absolute, restricted and as a procedural plea). 87   Immunities are also granted to State organs and other emanations of the foreign State. Peters, in Peters et al. (eds.), Immunities, p. 1, stresses that, according to different actors, the rationale of immunity differs and the scope and exceptions from immunity varies. 88  ICJ, 3/2/2012 Jurisdictional Immunities of the State (Germany v. Italy : Greece intervening), ICJ Reports 2012, para. 56 ; Hess, “Staatenimmunität und ius cogens im geltenden Völkerrecht : Der Internationale Gerichtshof zeigt die Grenzen auf”, IPRax (2012), 201 et seq. 89   Fox and Webb, State Immunity (2015), pp. 186 et seq.

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activities are often described as acta jure gestionis (as opposed to acta jure imperii). Here, the private-public divide is openly addressed – i.e., this is precisely where the foreign sovereign or public act (actum jure imperii) confines the jurisdiction of national courts against foreign states and their emanations. 24.  On 12 February 2004, the United Nations General Assembly adopted the UN Convention on State Immunity (UNCSI) after preparatory works of the International Law Commission (ILC) in the 1980s and extensive debates of the Legal Committee in the 1990s 90. The Convention has not yet entered into force 91, but it provides for an authoritative written text of the international law on State immunity 92. For this reason, it seems appropriate to approach the private-public divide in the context of State immunity from the perspective of the UN Convention 93.  In 1991, the ILC adopted Draft Articles on State Immunity, A/CN.4/462 ; A/CN.6/40/L.2, YbILC, 1991, II (Pt. 2), 13, cf. Hess, “The International Law Commission’s Draft Articles on State Immunity”, EJIL 4 (1993), 269 et seq. ; Fox and Webb, State Immunity (2015), pp. 288 et seq. 91  According to its Article 30, the Convention will enter into force when 30 States have ratified it. At present (7/8/2017), 28 States signed the Convention (including China) and 21 ratified it. 92   Fox and Webb, State Immunity (2015), p. 2 ; ECtHR, 14/3/2013, Appl. No. 36703/04, Oleynikov v. Russia, paras. 66 et seq. (applying the UNCSI as “customary international law”). In this case, the ECtHR held that upholding immunity in a civil lawsuit on the repayment of a debt (being a commercial transaction) was incompatible with Article 6, ECHR. 93   The ICJ referred to the Convention as an authoritative text of customary international law, see ICJ, 3/2/2012 Jurisdictional Immunities of the State (Germany v. Italy : Greece intervening), ICJ Reports 2012, at para. 55 ; this corresponds to the case law of the ECtHR, 3/3/2010, Appl. No. 15869/02, Cudak v. Lithuania, paras. 66-67 ; ECtHR, 17/7/2012, Appl. No. 156/04, Wallishauser v. Austria, para. 69, Schilling, “The Case Law of the ECtHR on the 90

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Article 10, UNCSI, provides for an exception from immunity for commercial transactions 94. The definition of commercial transactions is found in Article 2 (1) (c), UNCSI, which reads as follows : “(c) ‘commercial transaction’ means : (i) any commercial contract or transaction for the sale of goods or supply of services ; (ii) any contract for a loan or other transaction of a financial nature, including any obligation of guarantee or of indemnity in respect of any such loan or transaction ; (iii) any other contract or transaction of a commercial, industrial, trading or professional nature, but not including a contract of employment of persons. 2.  In determining whether a contract or transaction is a ‘commercial transaction’ under paragraph 1 (c), reference should be made primarily to the nature of the contract or transaction, but its purpose should also be taken into account if the parties to the contract or transaction have so agreed, or if, in the practice of the State of the forum, that purpose is relevant to determining the non-commercial character of the contract or transaction.” Immunity of States”, in Peters et al. (eds.), Immunities in the Age of Global Constitutionalism (2015), pp. 267, 269 et seq. 94  Article 10 (1), UNCSI, reads as follows : “1. If a State engages in a commercial transaction with a foreign natural or juridical person and, by virtue of the applicable rules of private international law, differences relating to the commercial transaction fall within the jurisdiction of a court of another State, the State cannot invoke immunity from that jurisdiction in a proceeding arising out of that commercial transaction.”

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25. This article puts forth an interesting approach to defining commercial transactions 95 : firstly, it lays down an autonomous concept of international law which does not refer to national law (especially not to the lex fori of the municipal court deciding on the granting of immunity) 96. Secondly, it comprises a description of core commercial transactions which are mainly based on contracts (and transactions) for sale and services (i) 97. The following alternative (ii) enumerates additional transactions which usually qualify as “commercial” (loans, guarantees and similar financial transactions) 98. The third alternative goes further and refers to “any other contract or transaction of a commercial, industrial, trading or professional nature” (iii). Here, as a result of the fact that in the provision the commercial activities are described in a general manner, the delineation might prove more complicated and a comprehensive assessment of the case at hand must be made. This assessment (which also applies to the first and the second prong) is described in the second paragraph : when evaluating the commercial nature of the activity of the State, the court should firstly consider the nature of the activity by investigating whether this activity can only be exercised by States or also by private persons. However, the objective pursued by the State when engaging in such an activity has to be taken into account, as well. As  It must be noted that this article has been subject to an intensive debate as it belonged to the most controversial provisions of the UNCSI, Fox and Webb, State Immunity (2015), pp. 419 et seq., who consider this article as “highly unsatisfactory” (p. 421). 96  The autonomous approach is not universally applied, see infra at para. 28 regarding the practice of German courts. 97  These are described as everyday businesses, Fox and Webb, State Immunity (2015), p. 422. 98  Here, the sovereign purpose of the transaction (concerning development or aid purposes may come into play), Fox and Webb, State Immunity (2015), p. 422. 95

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a result, the delineation between commercial and noncommercial acts is not easy to draw as it does not entail a binary enquiry but, rather, requires the court to consider four different factors : commercial and non-commercial 99 activity, public purpose and sovereign authority  . Nevertheless, Article 2 (1) (c), UNCSI, provides for helpful guidance as the provision enumerates the instances where, in most cases, the delineation is clear – moreover, these examples shall equally guide courts in the grey area where the delineation is more blurred. Article 2, UNCSI, also demonstrates that the privatepublic divide is not an issue of (simple) balancing of interests but of value statement and of comprehensive evaluation of the difficult situations where private conduct and public purposes are intermingled 100. 2.  State bonds 26.  The first practical example of situations where the private-public divide comes into play relates to an actual, but equally classical, topic : litigation pertaining to defaulting State bonds 101. In the recent Greek Government-debt crisis, international institutional lenders as well as private creditors have been forced to relinquish   van Aaken, in Peters et al. (eds.), Immunities in the Age of Global Constitutionalism (2015), pp. 131, 168 et seq. 100  As I will demonstrate in this course, addressing the divide requires an approach where core areas must be defined first in order to be able to find a balanced solution for the borderland cases where recourse to methods of private international law is equally helpful. 101   In 1929, the PCIJ decided on the claims of French bondholders against Serbia, see PCIJ, 12/7/1929, Certain Serbian Loans, Series A, No. 20/21. The claims had been espoused by France for diplomatic protection, generally Bröhmer, “State Immunity and Sovereign Bonds”, in Peters et al. (eds.), Immunities (2014), pp. 182, 183 et seq. ; Waibel, “Sovereign Defaults before International Courts and Tribunals” (2011), pp. 58 et seq. 99

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large parts of their credits 102. Already in 2012, the Greek Government enacted new legislation which introduced changes in the general conditions of the bonds and imposed a collective action clause for private bondholders 103. The imposition of the clause was facilitated by the fact that, according to the choice of law clauses, Greek law was applicable to the large majority of the bonds 104. Thus, Greek law No. 4050/12 introduced a legal mechanism (a collective action clause) aimed at amending by a majority vote of its holders the legal conditions that governed existing bonds. This mechanism eventually permitted a “cut” of 54.5 per cent of the value of the outstanding bonds. This cut was eventually accepted by 86 per cent of all the bondholders and formally confirmed by the Greek Government. As most of the loans were held by a Greek deposit bank, the original bonds were immediately replaced with new bonds 105. 27. However, not all private creditors were willing to accept this large devaluation of their loans 106. Many individual investors instituted lawsuits against the Hellenic Republic in German and Austrian civil courts. However, the German judiciary was reluctant to allow these lawsuits to proceed ; some courts even refused to  Another example is offered by the multiple lawsuits brought against Argentina after its economic crisis in 2002, see infra at paras. 208 et seq. 103   Law No. 4050/12 of 23 February 2012. On its effects see Arnold and Garber, ZZPInt 20 (2017), 171, 175 et seq. ; Chiotellis, “Sovereign Debt Restructuring and the International Legal Framework : The Greek Experience”, in Paulus (ed.), A Debt Restructuring Mechanism for Sovereigns (2014), pp. 99, 102 et seq. 104  As a consequence, private international law facilitated the restructuring of the bonds as Greek law was applicable. 105  Arnold and Garber, ZZPInt 20 (2017), 171, 178. 106  While institutional investors participated in the negotiations with the Greek Government, individual investors did not. 102

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serve the statement of claim on the Greek Government 107. The courts (in a formalistic way) held that the subject matter of the lawsuit related to a “sovereign bond” and, therefore, was not a “civil and commercial matter” within the meaning of Article 1 (1) of the EU Service Regulation 108. Eventually, the ECJ was asked to render an opinion on the (correct) interpretation of Article 1 of the EU Service Regulation. The Court did not address the issue of whether the subject matter of the litigation concerned a sovereign conduct, but it held that the service of a lawsuit should (simply) be permitted in order to inform the defendant about the ongoing litigation 109.  Landgericht Wiesbaden, 18/4/2013, IPRspr (2013), No. 250 ; Oberlandesgericht Frankfurt, 18/9/2014, BeckRS, 2015, No. 13561 ; Oberlandesgericht Schleswig, 4/12/2014, ZIP (2015), No. 1253 ; Oberlandesgericht Hamm, 11/12/2014, Juris ; Landgericht Osnabrück, 15/5/2015, RIW (2016), 76 ; Landgericht Bonn, 20/4/2016, BeckRS (2016), No. 10913 ; Oberlandesgericht Köln, 12/5/2016, ZIP (2016), No. 1249 ; Oberlandesgericht Schleswig, 7/7/2016, Juris ; BGH, 8/3/2016 p. 370, No. 16, Oberlandesgericht Oldenburg, 18/4/2016, IPRax (2017), 373 ; Oberlandesgericht Köln, 12/5/2016, IPRax (2017), 378 ; Oberlandesgericht Schleswig, 7/7/2016, IPRax (2017), 386. 108  This provision reads as follows : “(1) This Regulation shall apply in civil and commercial matters where a judicial or extrajudicial document has to be transmitted from one Member State to another for service there. It shall not extend in particular to revenue, customs or administrative matters or to liability of the State for actions or omissions in the exercise of state authority (acta jure imperii).” 109   ECJ, 11/6/2015, C-226/13, Fahnenbrock and Others, EU :C :2015 :383, paras. 45 et seq. – the ECJ held that the national court, when deciding on the service of process, must not exhaustively examine whether the claim is civil and commercial, and that a preliminary assessment is sufficient. For a different opinion, see : AG Bot, conclusions 9/12/2014, EU  :C  :2014  :2424 qualifying the underlying litigation as referred to a “jure imperii” activity, see infra at paras. 227 et seq. 107

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As a result, the Greek Government was served with such lawsuits. 28.  In a parallel case, however, the German Federal Court of Justice declared an action against the Hellenic Republic to be inadmissible. In the case at hand, the plaintiffs argued that the Greek legislator had infringed their property rights by devaluing and replacing the bonds. The Federal Court held that the subject matter of the dispute was not contractual and, rather, it directly related to Greek law No. 4050/12 on the restructuring of the bonds, which it held was to be qualified as a jure imperii activity 110. The court said 111 : “The distinction between sovereign and nonsovereign State activity is not based on the activity’s underlying motive or purpose ; nor can the distinction be made according to whether the activity is in a recognizable connection with sovereign functions of the State. This follows from the fact that the activity of a State – not necessarily, but by far in the largest part – serves sovereign purposes and tasks, and is connected with them in a recognizable context. The nature of the State act or of the resulting legal relationship is, however, decisive for the distinction. The question is whether the foreign State has acted in the exercise of its sovereignty, i.e. in public law, or as a private individual, that is, under private law . . . In accordance with the principles set out above, the action brought   Bundesgerichtshof, 8/3/2016, BGHZ 209, 191  =  NJW (2016), 1659, critically annotated by Geimer, “Vertragsbruch durch Hoheitsakt”, IPRax (2017), 344 ; Bundesgerichtshof, 19/12/2017, BeckRS (2017), 139435 ; same approach : Italian Court of Cassation, 27/5/2005, Riv. dir. int. e proc. 88 (2005), 856 (concerning Argentinian bonds). 111  I am grateful for the translations of these judgments into English, provided by Dr. Cristina Mariottini and Philippos Siaplaouras, MPI, Luxembourg. 110

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by the plaintiffs is contrary to the principle of State immunity. According to the prevailing view, borrowing by issuing sovereign bonds is a non-sovereign act . . . 112. It is apparent from the plaintiffs’ submissions that they do not oppose the decision by which the majority of the creditors authorized by the giro-system of the Greek Central Bank accepted the offer of the Hellenic Republic to replace their bonds with other bonds with a nominal value reduced by 53.5% and a longer term. Their action is rather directed against the withdrawal, ‘caused by the defendant’, of the bonds from their securities accounts. According to their submission, they claim property and possession of the paper, not rights arising from the paper. The plaintiffs do not base their claims on the acquired bonds or on the compensation due to non-performance of obligations but, rather, on the ‘breach of property and possession claims’ based on the forced replacement of the bonds. Under these circumstances, there is no apparent nonsovereign behavior of the defendant which could potentially give rise to liability and serve at least as an indirect foundation of their claims. Since the original terms of the loan did not include any so-called Collective Action Clauses, the defendant’s behavior, which could potentially give rise to liability, consists in the adoption of Law 4050/2012 of 23 February 2012 and the Decision of the Council of Ministers of 9 March 2012, on the basis of which the majority decision of the creditors became generally binding. The subsequent replacement of the bonds held by the plaintiffs and governed by Greek law is only one consequence of the legal situation resulting from the law of 23 February 2012

112

 Quotations omitted.

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in connection with the decision of the majority of the creditors and the decision of 9 March 2012. The adoption of this law is undoubtedly a sovereign act according to the aforementioned principles. In the present case, the defendant has (retroactively) amended its own law forming the basis for the bonds. This is precisely an example of the judicial review of the legality of measures of public authority that the doctrine of State immunity aims to prevent (cf. BVerfG, Decision of 17 March 2014 2 BvR 736/13, NJW 2014, 1723 No. 28 . . . [further references omitted].” 29. In the meantime, the Austrian Supreme Court came to the opposite conclusion 113 : it held several actions to be admissible because the plaintiffs had relied on the (alleged infringement of the) contractual relationship between the bondholder and the Greek State 114. The Supreme Court said : “In the instant case, the plaintiffs rely on two grounds : on the one hand, they seek performance of the terms of the bond or compensation for damages due to the lack of such performance ; on the other hand, they claim that the defendant State is infringing upon their private property rights by means of an unlawful legislative act. A distinction must be drawn between  It should be mentioned that neither court mentioned the existing conflicting case law. Nor did the Austrian Court refer to the UNCSI although Austria had ratified it. 114  Austrian Supreme Court, 20/5/2014, 4 Ob. 227/13 f. ; 30/7/2015, JBl (2016), 47 ; 31/8/2015, RdW (2016), 332. The judgment is in line with the case law of American courts, see : Republic of Argentina v. Weltover, Inc. et al., 504 US 607 (1992), World Holdings LLC v. The Federal Republic of Germany 613 F. 3d 1310 (11th Cir. 2010) ; and with English case law : NML Capital Ltd. v. Republic of Argentina [2011] UKSC 31. It must be noted that most of these lawsuits failed on the merits. 113

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the bases of these claims : legislation is one of the core areas of State action. Insofar as the plaintiffs base their claim on the debt restructuring law’s violation of a higher law, the legal basis of their claim is an act of sovereignty of the defendant State. In this case, State immunity is not dubious. Therefore, the dismissal of the action has to be confirmed as to this point. As for the plaintiffs’ claim seeking performance of the terms of the bond or compensation for damages due to the lack of such performance, the action has a contractual basis at its core. In this case, the State appears to act on the market like any other borrower. Jurisdiction cannot be denied on the grounds of the immunity of the defendant State ; borrowing by issuing government bonds is to be qualified as a ‘iure gestionis’ activity in accordance with unanimous doctrine [references omitted].” 30. The different outcomes in the German and Austrian cases are striking and constitute a reason for concern. Clearly, the different lines of argument put forth by the plaintiffs (who characterized their claims either as a tort (eventually) arising from an unlawful expropriation or as a contractual dispute over the non-performance of contractual obligations) played a decisive role in the admission of the lawsuits 115. Yet, as a matter of principle, the mere formulation of a claim by the plaintiffs cannot be the decisive criterion on which to determine the line of demarcation between acta jure gestionis and jure imperii 116. When addressing these issues, a more   In the meantime the Austrian Supreme Court filed two preliminary references to the ECJ on the interpretation of Article 7, No. 1 (a) of the Brussels I bis Regulation with regard to the place of performance of the contractual obligations, OGH, 25/4/2017, 10 Ob 34/16x. 116  A similar misunderstanding may be found in ECJ, case C-551/15, Pula Parking, EU :C :2017 :193, infra at paras. 56 et seq. 115

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sophisticated approach seems to be necessary : first, one should look at the UN Convention on State Immunity of 2004. Its Articles 2 (1) (c) (ii) and 10 (1) classify loans (and sovereign bonds) usually as commercial transactions 117. According to another doctrinal approach, it would be necessary to look at international practice on such demarcation 118. Here, the practice of national courts addressing this issue is not consistent although the majority of courts do not grant immunity in these constellations 119. Finally – and decisively – national courts should not over-estimate the immunity defence, which is not the only way to shield the foreign State against litigation in domestic courts. Rather, they should consider additional avenues to address the sovereign concerns of the defending State 120. In this respect, the Austrian proceedings are telling : to date, the Austrian cases have not (yet) been decided on the merits because several additional defences were raised against the claim, some of them relating to the public purpose of Greek law No. 4050/12 121.   Supra at paras. 23 et seq. The Convention has been ratified by 21 States ; it will enter into force after the 30th ratification. However, it is applied as an expression of customary international law by domestic and international courts, see infra at paras. 219 et seq. 118  And not at the lex fori as the German Federal Court did with a reference to the case law of the Constitutional Court in 1963 – rendered more than 50 years ago. 119   Goren, “State to State Debts : Sovereign Immunity and the ‘Vulture Hunt’  ”, Geo. Wash. Int’l L. Rev., 41 (2010), 681, 686 et seq. 120  This approach would be in line with the UNCSI. On the one-sided effects of State immunity, see infra at paras. 216 et seq. 121   It may be that the claims will eventually be dismissed on the merits because Greek law No. 4050/12 is part of the law applicable to the loans or because it qualifies as an overriding mandatory provision within the meaning of Article 9 of the Rome I Regulation, see infra at paras. 232 et seq. 117

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31.  Further developments regarding the Greek bonds should also be mentioned here : for instance, while these individual lawsuits were commenced in domestic courts, more than 6,000 private creditors sought to engage the jurisdiction of the European Court of Human Rights (ECtHR) in claims where they challenged the lawfulness of Greek law No. 4050/12 as conflicting with the right to property. They alleged that the intervention of the Greek Government amounted to an expropriation and was therefore incompatible with Article 1 of the First Additional Protocol to the ECHR. The ECtHR did not endorse this argument 122. As the Court stressed, the bond creditors had been well aware (or at least should have been aware) of the uncertainties of the international capital financial markets. Furthermore, in time of crisis, States are forced to take action in order to restore their economy. As a result, the Greek law served a justified objective. With regard to the inherent risk of State bonds, the Court held that the devaluation performed by the Greek Government was not excessive and did not transgress the margin of appreciation under the Convention. Additional proceedings, based on investment protection, are currently pending before ICSID arbitral tribunals. So far, these proceedings have not been successful 123. 32. The recurring litigation on the restructuring of the Greek Government debts depicts the current situation of dispute resolution in the context of the private-public divide. Unless they are bound by exclusive jurisdiction clauses, private creditors may select different avenues   ECtHR, 21/7/2016, Appl. Nos. 63066/14, 64297/14 and 66106/14, Mamatas et al. v. Greece, especially at paras. 118120. Similarly, the Court held that there was no violation of Article 14, ECHR (discriminatory treatment). 123   Example : Poštová banka, a.s. and Istrokapital SE v. The Hellenic Republic, ICSID Case No. ARB/13/8, Decision on Annulment, 29/9/2016, Ortolani, “Are Bondholders Investors ? Sovereign Debt and Investment Arbitration after Poštová”, Leiden J. Int’l L. 30 (2017), 383 et seq. 122

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for the resolution of their claims. They may try to initiate litigation in State courts (preferably in courts outside the defending State)  ; they may initiate investment arbitration ; or, again, try to gain access to international human rights courts. However, these avenues are not easily available to private litigants, and one should not overlook the huge litigation risks that come with such claims 124. Nevertheless, new (and aggressive) actors have stepped in and are trying to increase the pressure on States which are oftentimes unable, but sometimes also unwilling, to repay sovereign debts 125. However, as this course shall demonstrate, a balanced solution of these cases is not always contingent on public international law but may also be derived from parallel concepts of private international law. 3. Compensation of war damages by domestic courts : an evolving area ? (a)  Immunity for acta jure imperii 33. In the framework of the private-public divide, it seems necessary to also address the very core area of acta jure imperii that encompasses acts of warfare. Specifically, civil actions for war damages cannot be heard in fora other than the civil courts of those States whose troops have (allegedly) inflicted damage to individual victims 126. Usually, individual claims arising   Especially with regard to enforcement proceedings, see infra at footnote 698. 125   In particular, this has been the case since the Argentina bond litigation, see the critical assessment by Muir Watt, “Dette souveraine et main visible du marché : de nouveaux enjeux du droit international privé des contrats”, Rev. crit. 104 (2015), 331, 339 et seq., infra at paras. 208 et seq. 126  The admissibility of individual actions against the flag State of the troops still depends on the domestic law of the State concerned, see infra at para. 41. 124

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out of acts of warfare are espoused by the States and settled at the international level in peace treaties or similar instruments 127. While typically these instruments do not depart from individual grievances, they nevertheless adopt general (lump sum) solutions 128. As a result, often (considerable) groups of victims are left out and their losses are not addressed, either at the international or at the domestic implementation level 129. 34.  During the last decades, more and more individuals (often supported by human rights activists) have brought individual lawsuits in order to obtain compensation for damages arising from acts of warfare. They have based their claims on violations of international law (human rights, humanitarian law and jus cogens). Still, the broad majority of these claims have failed in domestic 130 and international courts 131. In 2012, the ICJ stated that lawsuits on war damages, even those resulting from the violation of fundamental human rights 132, cannot be heard by the civil courts of another State. The court said :  Tomuschat, in Peters et al. (eds.), Immunities in the Age of Global Constitutionalism (2015), pp. 87 et seq. ; D’Argent, Les réparations de guerre en droit international public (2002). 128  See infra at para. 86. 129   This was a recurrent issue in the context of reparations arising out of World War II, Hess, “Kriegsentschädigungen aus kollisionsrechtlicher und rechtsvergleichender Sicht”, BerDGVR 40 (2003), pp. 103 et seq. 130   Canadian S. Ct., Schreiber v. Germany and Canada, 147 ILR 276, paras. 13-18. 131   ECJ, 15/2/2007, case C-292/05, Lechouritou, EU :C :2007 : 102, paras. 37-39 ; ECtHR, 21/11/2001, Appl. No. 31253/96, McElhinney v. Ireland, para. 38  ; ECtHR, 14/1/2014, Appl. Nos. 34356/06 and 40528/06, Jones and Others v. UK ; ICJ, 3/2/2012, Jurisdictional Immunities of the State (Germany v. Italy : Greece Intervening), ICJ Reports 2012, paras. 72-79 (summarizing case law of national courts). 132  The cases at hand concerned war crimes committed by German soldiers in Greece during World War II, as well as 127

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“93. This argument therefore depends upon the existence of a conflict between a rule, or rules, of jus cogens, and the rule of customary law which requires one State to accord immunity to another. In the opinion of the Court, however, no such conflict exists. Assuming for this purpose that the rules of the law of armed conflict which prohibit the murder of civilians in occupied territory, the deportation of civilian inhabitants to slave labour and the deportation of prisoners of war to slave labour are rules of jus cogens, there is no conflict between those rules and the rules on State immunity. The two sets of rules address different matters. The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State. They do not bear upon the question whether or not the conduct in respect of which the proceedings are brought was lawful or unlawful.” 35. In the legal literature, this case law has been criticized for its formalistic approach. Indeed, it is true that the exception of State immunity directly refers to the substance of the case and that, therefore, the conflict between jus cogens and State immunity might also ground a new exception of State immunity 133. In this respect, the reasoning of the ICJ that there was no conflict between (granting) State immunity and mandatory (substantive) norms, appears to be too formalistic 134. Furthermore, the unlawful “detention” of Italian prisoners of war during World War II in German concentration camps. 133   Dissenting opinion of ad hoc judge Gaja, in ICJ, Jurisdictional Immunities of the State, ICJ Reports 2012, pp. 309, 318 et seq. (at para. 10). 134   In procedural law, the problem has been described as the socalled “doppelrelevante Tatsachen” (double relevant facts) which are decisive for the assumption of jurisdiction (based on contract or tort) and for the outcome of the proceedings

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other critics have challenged the majority decision of the ICJ for not having sufficiently reflected the (shifting) 135 position of the individual in international law  . Nonetheless, whether the position of the individual has really advanced to such an extent that one may assume that such position can be effectively balanced against the plea of immunity of the defendant State (or the international organization) is still an open issue 136. In addition, “balancing immunity” is not an easy task since it paves the way to two possible outcomes, only : either to admit the lawsuit or not. Any other outcome is excluded, unless the solutions made available according to private international law are pursued 137. All in all, one must conclude that the ICJ reinforced the classical approach to State immunity – including the delineation between commercial activities and actas jure imperii. 36. Still, the unease with the present situation in international law has been highlighted in the decision of the Italian Constitutional Court invalidating the Italian legislation implementing the judgment of the ICJ in Germany v. Italy 138. The Constitutional Court held that on the merits – whether a claim based on contract or tort exists. In the legal literature it is acknowledged that a clear separation is not possible. 135   Peters, in Peters et al. (eds.), Immunities in the Age of Global Constitutionalism (2015), pp. 1, 3 et seq. 136  See infra at paras. 224 et seq. 137   See infra at paras. 225 et seq. 138  The Italian parliament had passed Law No. 5 of 14/1/ 2013 on the Accession by the Italian Republic to the United Nations Convention on Jurisdictional Immunities of States and Their Property, signed in New York on 2 December 2004. Article 3 of Law No. 5/2013 explicitly excluded the jurisdiction of Italian courts for actions related to war crimes committed by the Third Reich, including in instances of ongoing proceedings. The provision was annulled by the Italian Constitutional Court, 22/10/2014, Judgment No. 238/2014. An English translation is available at : http :// www.cortecostituzionale.it/documenti/download/doc/

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the fundamental right to access to justice under the Italian constitution did not allow the Italian lawmaker to enact a law which denied the victims of Nazi atrocities the right to bring a lawsuit before the Italian courts against the Federal Republic of Germany for the compensation of the damages suffered 139. This was a bold statement, yet one may doubt whether this reasoning is really convincing : Italian victims could bring lawsuits (for compensation) before German courts – hence, access to justice was available. The issue was that German courts would not award compensation, either under domestic law, or by reference to international standards 140. Until today, the dispute has reached a stalemate as negotiations between the two Governments have not yet been undertaken 141. recent_judgments/S238_2013_en.pdf (visited on 13 April 2017). 139  The Constitutional Court held : “Therefore, in an institutional context characterized by the centrality of human rights, emphasized by the receptiveness of the constitutional order to external sources (Judgment No. 349/347), the denial of judicial protection of fundamental rights of the victims of the crimes at issue (now dating back in time) determines the completely disproportionate sacrifice of two supreme principles of the Constitution. They are indeed sacrificed in order to pursue the goal of not interfering with the exercise of the governmental powers of the State even when, as in the present case, state actions can be considered war crimes and crimes against humanity, in breach of inviolable human rights, and as such are excluded from the lawful exercise of governmental powers.” Judgment No. 238/2014, at No 3.4. 140   Correctly stated by Palchetti, Italian concerns after sentenza 238/2014 : possible reactions, possible solutions, at : http :// verfassungsblog.de/italian-concerns-after-sentenza2382014-possible-reactions-possible-solutions/. 141  As urged by the ICJ, Italy v. Germany, ICJ Reports 2012, para. 104. The current stalemate was discussed in May 2017 at a conference hosted at Villa Vigoni among German and Italian scholars who eventually did not agree on the principles to be applied and finally invoked the good will

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(b)  Filling the gaps of international law by domestic remedies 37. The legal situation and the enduring critic with regard to the immunities of international organizations is similar to the situation of State immunity 142. In several 143 cases, the United Nations  and NATO (including 144 individual member States)  were sued for acts (and alleged crimes) committed by troops acting under international command. Here, the procedural status of the troops is often regulated by international conventions (which must be accepted by the State where the operations take place) 145. However, individual redress is often not available. Individuals who had suffered damages arising from warfare operations have nevertheless tried to sue for compensation. International organizations and States acting in international armed conflicts have successfully invoked immunity against these individual lawsuits. Although domestic courts expressed their discomfort regarding the lack of alternative remedies, the plea of immunity was ultimately upheld. of the Government to come to an amicable solution. The livestream of the conference may be found at : http :// verfassungsblog.de/category/themen/remedy-againstimmunity/. 142  See infra at paras. 43 et seq. 143  The most prominent case in this respect was the lawsuit brought by Bosnian victims (and their relatives) against the atrocities committed in Srebrenica, ECtHR, 11/6/2013, Appl. No. 65542/12, Stichting Mothers of Srebrenica and Others v. The Netherlands, infra at footnote 177. 144   ECtHR, 12/12/2001, Appl. No. 52207/99, Banković v. Belgium ; Bundesgerichtshof, 2/11/2006, BGHZ 169, 348 (Varvarin) ; confirmed by the Federal Constitutional Court (Bundesverfassungsgericht), 13/8/2013, BeckRS (2013), 55213, paras. 52 et seq. 145   Fox and Webb, State Immunity (2015), pp. 606 et seq. on the Agreement of EU Member States concerning the status of military and civilian staff to the Institutions of the Union (EU SOFA), OJ 203 L 321/6.

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38.  Recent case law of Dutch, German and English courts might provide an avenue to overcome the shortcomings of international law. In The Hague, victims as well as relatives of victims of the atrocities committed by Bosnian Serbs in Srebrenica in July 1995 brought an action against the Dutch Government asserting that the so-called Dutchbat compound had not prevented the deportation of Bosnian Muslim men from the protection zone (and their subsequent assassination by Serbs) 146. Originally, the lawsuit was brought against the State of the Netherlands and the United Nations. The court ruled that the lawsuit against the United Nations was inadmissible 147, but eventually allowed the claim against the Dutch Government 148. On the merits, the court applied Dutch domestic law on State responsibility, but derived the unlawfulness of the compartment of the Dutchbat soldiers from international law 149. As a result, the court ruled that the violation of mandatory international law   District Court, The Hague, 16/7/2014, ECLI :NL :RBDHA : 2014 :8748,available at : https ://uitspraken.rechtspraak.nl/ inziendocument ?id=ECLI :NL :RBDHA :2014 :8748. The Court of Appeal, The Hague, 27/6/2017, confirmed the judgment but held that the responsibility of the State was limited to those victims who had been delivered by the Dutchbat troops to the Serb insurgents. For background information concerning the proceedings cf. Klep, “The Unfulfilled Promise of Protection – The Netherlands and Srebrenica”, in Malcontent (ed.), Facing the Past (2016), pp. 323, 327 et seq. 147   Judgment of 10/7/2008 ; remedies against the dismissal were not successful, Hoge Raad, 13/4/2012. Eventually, the ECtHR, 11/6/2013, App. No. 65542/12, Stichting Mothers of Srebrenica and Others v. The Netherlands, declared the complaint without merit with regard to Article 6, ECHR. 148   On the merits, the court only gave a declaratory judgment. 149  At paras. 4.167-4.169, the Court stated that the unlawful actions were acta jure imperii but that the Netherlands could be summoned to appear in a court of their own jurisdiction (para. 4.170) and applied Dutch law to the claim of the merits (para. 4.171). 146

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entailed compensation at domestic level. Further, the court held that the (alleged) illegal behaviour of the State authorities in warfare fell under the jurisdiction of the competent courts of the State concerned 150. 39. Yet, the approach of German courts in this respect remains different. According to a consolidated case law, German courts have not allowed claims for State liability based on acts of warfare 151. Recently, in October 2016, the Supreme Federal Civil Court gave a judgment on the Kunduz-incident which might indicate a possible shift of the case law 152. Afghan plaintiffs sued the Federal Republic of Germany for damages arising out of the September 2009 bombing, in the Kunduzarea, by ISAF troops of lorries (transporting gas). The local ISAF commander (a German officer) mistakenly considered that the tanks were driven by Taliban rebels and requested the support of allied air forces. However, this assumption was misguided, and several civilians were either killed or heavily injured. The Federal Civil Court allowed the lawsuit brought by the victims and their relatives but dismissed it on the merits. The court expounded several different lines of reasoning : first, it held that international law of warfare was not directly 153 applicable to individual claims for compensation  . Furthermore, it stated that German domestic law on State responsibility (Amtshaftungsrecht) was not applicable either, since it was conceived to apply only to  The judgment was confirmed on appeal as well as on second appeal. 151   Bundesgerichtshof, 26/6/2003, BGHZ 155, 279, 291 ; 2/11/ 2006, BGHZ 169, 348, paras. 6 et seq. ; confirmed by the Constitutional Court, NJW (2006), 2542, and 13/8/2013, BeckRS (2013), 55213, paras. 45 et seq. 152   Bundesgerichtshof, 6/10/2016, NJW (2016), 3556  ; the judgment was criticized by Schnabel, NJW (2017), 128, 130, and by Schmalenbach, JZ (2017), 425 et seq. 153  Bundesgerichtshof, 10/6/2016, NJW (2016), 3556, paras. 1517. 150

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“peaceful” or “ordinary” situations 154. Nevertheless, in a lengthy (second) part of the judgment the court did apply the German law on State responsibility to the case. Contrary to what it had previously stated, the court applied standards of international law on warfare in the framework of national law in order to decide on the lawfulness of the State activities. Finally, it came to the conclusion that international law had not been infringed in the case at hand 155. 40.  The two judgments illustrate that characterizing activities as acta jure imperii does not necessarily entail that individuals affected by these activities are left without redress. For instance, the domestic courts of the defendant State might provide such redress 156. However, the inherent weakness of this approach is that it is left to the legislative discretion of the defendant State to determine to which extent liability under domestic law will be available to the affected individual 157. 41.  In this respect, a structural deficiency of public international law becomes apparent : international law usually does not address the internal affairs of States (and other subjects of international law) 158. Although  Bundesgerichtshof, 6/10/2016, NJW (2016), 3556, paras. 1839. Here, the Court referred to the prerogative of the Parliament to enact specific legislation on compensation, para. 39. 155   Bundesgerichtshof, 6/10/2016, NJW (2016), 3556, paras. 40 et seq. This part of the judgment appears to be telling : the Court was in fact not required to give any additional reasons since it had already denied the applicability of the domestic law to State responsibility. However, obviously the judges felt a need to motivate their decision by means of a second prong of reasoning. 156  See infra at paras. 220 et seq. (regarding the case law of the ECtHR). 157  With regard to access to justice the situation is different under Article 6, ECHR, see infra at paras. 220-221. 158   However, it must be noticed that the most important exception relates to human rights, see infra at paras. 108 et seq. 154

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this dogma has been maintained for a long time, the protection of human rights fundamentally challenges this situation 159. This matter was recently addressed by the UK Supreme Court in three judgments given on 17 January 2017 on claims for the compensation of damages resulting from the involvement of British troops and secret services in the “war against terror”. In the first judgment, Rahmatullah (No. 2) v. Ministry of Defence and Another, the Supreme Court held that the detention of private individual suspects in the context of military operations in Iraq during an international armed conflict was to be considered as an act of State for which the Government could not be held liable 160. However, in a parallel case, unrelated to military operations (but related to the operation of secret services), the Supreme Court held that the act of State doctrine was limited by a public policy exception which deemed as admissible a claim for the damages suffered as a result of violations of the prohibition against torture and (according to the concurrent opinion of some of the judges) violations of jus cogens under international law 161. Finally, the  It goes without saying that this fundamental change has been largely recoognized by scholars of public international law, cf. Paulus, Die internationale Gemeinschaft im Völkerrecht (2001), pp. 233 et seq. 160   Rahmatullah (No. 2) (Respondent) v. Ministry of Defence and Another (Appellants) and Mohammed and Others (Respondents) v. Ministry of Defence and Another (Appellants), [2017] UKSC 1. In this case, Article 5, ECHR, was not applicable and the Court did not consider any exception from the act of state doctrine. However, that Court clearly stated that courts should carefully examine whether the case really involved an act of State, paras. 36-37. 161   Belhaj and Another (Respondents) v. Straw and Others (Appellants) and Rahmatullah (No. 1) (Respondent) v. Ministry of Defence and Another (Appellants), [2017] UKSC 3 (per Lord Mance who adopted a comparative law approach and, therefore, also referred to the case law of the Bundesgerichtshof at paras. 70-71). 159

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Supreme Court applied Article 5 of the ECHR to the unlawful detention of suspect insurgents by British military forces engaged in peacekeeping operations in Afghanistan under the mandate of the United Nations Security Council 162. In the case at hand, there was a split among the Lord Justices as to whether the requirements of Article 5 of the ECHR were directly applicable or had to be accommodated to the law of international warfare. However, the Supreme Court unanimously held that the application of the act of State doctrine (in favour of the Crown) was subject to a public policy exception endorsing the fundamental human rights of the affected individuals. 42.  Again, these judgments depict a growing willingness of domestic courts to admit individual lawsuits within the framework of private international law which finally allows the control and the sanctioning of severe violations of human rights. However, the mere involvement of human rights considerations does not entail that a civil lawsuit will be successful. The case law of the UK Supreme Court shows that there might be possibilities to overcome the broad scope of the public law taboo (excluding any possibility for dispute resolution in claims involving acta jure imperii) and to provide for more balanced solutions by the judicial review of the behaviour of State authorities performed by their competent domestic courts.163 However, this approach does not exclude the possibility to consider the political implications of the case in the merits phase of a   Abd Ali Hameed Al-Waheed (Appellant) v. Ministry of Defence (Respondent) and Serdar Mohammed (Respondent) v. Ministry of Defence (Appellant), [2017] UKSC 2. However, the majority stressed the fact that the operation took place in a non-international armed conflict (paras. 14, 113, 148 and 224). As a result, the arguments of the ECtHR in case No. 29750/09, Hassan v. UK, were extended to noninternational armed conflicts (by analogy). 163   See infra at paras. 214 et seq.

162

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lawsuit. For the moment, it suffices to state that the review of acta jure imperii (even in warfare constellations) is undergoing some important developments. 4.  The specific situation of international organizations 43.  International organizations equally enjoy immunities under public international law. However, the immunities of international organizations must be clearly distinguished from the immunity of States : on the one hand, these immunities are derived from the (foundational) treaty of the organization itself (or from a seat or a headquarters agreement). Therefore, the immunity of international organizations originates in international treaties ; it is not based on international customary law 164. On the other hand, the distinction between commercial and non-commercial activities does not apply to the immunities of international organizations 165. These immunities are functional in the sense that all activities of the organization are covered by immunity in order to permit the organization to fulfil its tasks 166.  Wood, “Do International Organizations Enjoy Immunity under Customary International Law ?”, in Blokker and Schrijver (eds.), Immunity of International Organizations (2015), pp. 29 et seq. (concluding at pp. 59 et seq. that no rule of customary international law regarding the immunity of international organizations does exist). 165  Webb, “Should the 2004 UN State Immunity Convention Serve as a Model/Starting Point for a Future UN Convention on the Immunity of International Organizations ?”, in Blokker and Schrijver (eds.), Immunity of International Organizations (2015), pp. 61, 63 et seq. 166   Reinisch, “Privileges and Immunities”, in Cogan, Hurd and Johnstone (eds.), Oxford Handbook on International Organizations (2016), pp. 1049 et seq. ; Happold, “The Responsibility of the UN and the International Rule of Law”, in Feinäugle (ed.), The Rule of Law (2016), pp. 259, 264 et seq. (“although Article 105 suggests that the UN immunity is functional, in practice it is absolute”). 164

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44. It goes without saying that this comprehensive system of functional immunities has been challenged in both domestic and international courts. In practice, however, the most important instances have been addressed by means of specific forms of alternative remedies : when international organizations conclude (commercial) contracts with non-State actors, arbitration clauses may provide for an alternative dispute settlement mechanism 167. The United Nations General Conditions of Contracts provide for dispute settlement clauses such as conciliation and arbitration 168. Moreover, international organizations provide for internal administrative review boards with regard to disputes concerning their staff. In this regard, several institutions have been established : within the United Nations, there exists an internal Administrative Tribunal of two instances which reviews disputes among the organization and 169 its employees  . Within the International Labour Organization there is an administrative tribunal which also hears disputes between other organizations and their

 The insertion of these dispute settlement clauses ultimately depends on the willingness of the international organization to agree to them. Sometimes, dispute resolution clauses refer to the internal dispute settlement bodies of the organization itself, cf. Boisson de Chazournes, “Immunités, responsabilisation des organisations internationales et protection des droits individuels”, in Peters et al. (eds.), Immunities in the Age of Global Constitutionalism (2015), pp. 285, 290 et seq. (regarding the inspection bodies of the World Bank). 168   Burci, “Enforcement versus Immunity in the United Nations”, in Feinäugle (ed.), The Rule of Law (2016), pp. 269, 290. 169  Villalpando, “International Administrative Tribunals”, in Cogan, Hurd and Johnstone (eds.), Oxford Handbook on International Organizations (2016), pp. 1085, 1090 et seq. describing recent reforms of the UN Administrative Tribunal. 167

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employees 170. Already in 1954, in its Advisory Opinion on the Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, the ICJ recognized the necessity of establishing an internal review board for staff disputes. The Court said : “The Charter contains no provision which authorizes any of the principal organs of the United Nations to adjudicate upon these disputes, and Article 105 [of the UN Charter] secures for the United Nations jurisdictional immunities in national courts. It would, in the opinion of the Court, hardly be consistent with the expressed aim of the Charter to promote freedom and justice for individuals and with the constant preoccupation of the United Nations Organization to promote this aim that it should afford no judicial or arbitral remedy to its own staff for the settlement of any disputes which may arise between it and them.” 171   Today, the ILO Tribunal is open to more than 58,000 international civil servants who are serving or former officials of 62 international organizations. It is composed of seven judges, all of different nationalities, who are appointed for a renewable period of three years. Its case law comprises over 3,800 judgments available online, http :// www.ilo.org/tribunal/lang-en/index.htm. Cf. Villalpando, in Cogan, Hurd and Johnstone (eds.), Oxford Handbook on International Organizations (2016), pp. 1085, 1087 et seq. 171  ICJ, 13/7/1954, ICJ Reports 1954, 47, 56. The UN Administrative Tribunal had been established by the General Assembly to hear applications alleging nonobservance of contracts of employment of staff members of the UN Secretariat. In its Advisory Opinion the ICJ considered that the General Assembly had established the tribunal by its implied powers under the UN Charter. However, the General Assembly was not entitled on any grounds to refuse to give effect to an award of compensation made by the Administrative Tribunal in favour of a UN staff member whose contract of service had been terminated without his consent. The Court stated 170

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45.  This regulatory concept, which combines (or even conditions) the immunity of the international organization with alternative redress, was taken up by the ECtHR in the landmark decision Waite & Kennedy v. Germany 172. This case arose out of a labour dispute within the European Space Agency. The applicants had been employees of the German branch of the Space Agency. When their (recurrent short-term) contracts were no longer prolonged, they initiated litigation before the German labour courts which, however, granted immunity to the Agency. Finally, the case ended at the ECtHR which recognized that claims against international organizations involved the right of access to justice guaranteed by Article 6, ECHR. However, the Court held that the right of access to justice might be limited for legitimate purposes such as the functioning of the international organization. In this context the court said : “For the Court, a material factor in determining whether granting ESA immunity from German jurisdiction is permissible under the Convention is whether the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention.” 173

that the tribunal was an independent and truly judicial body pronouncing final and binding judgments and not merely an advisory or subordinate organ of the General Assembly. Its judgments were therefore binding on the UN Organization and thus also on the General Assembly. 172  ECtHR, 18/2/1999, Appl. No. 26083/94, Waite and Kennedy v. Germany. 173  ECtHR, 18/2/1999, Appl. No. 26083/94, Waite and Kennedy v. Germany, para. 68.

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175 46. National 174 and international courts  have followed this line of argument in many labour and employment disputes. Immunity from suit is granted to an international organization when its employees have access to adequate alternative remedies. However, the case law of national courts is not entirely consistent and it is limited to employment disputes 176. The ECtHR did not uphold this approach in the Srebrenica case where the relatives of Bosnian victims sued the United Nations because the UN forces had not protected their male relatives against the atrocities (murders) committed by Serb insurgents. The ECtHR held that “in the absence of an alternative remedy the recognition of immunity is not ipso facto a violation of the right of access to a court” 177. This broad statement must be regretted. As a result, the issue of the responsibility of the United Nations 178 for the failure of protecting the Bosnian civil population was ultimately not addressed 179. Perhaps, the

 German Constitutional Court, 10/11/1981, Hetzel v. Eurocontrol, BVerfGE 59, 63, 91 ; Cour d’Appel de Paris, 19/6/1998, UNESCO v. Boulois, YB Comm Arb. XXIV (1999), 294 et seq. 175   Rubio v. International Postal Union, ILO Administrative Tribunal, 10/7/1997, Judgment No. 1644, para. 10. 176   Reinisch, in Cogan, Hurd and Johnstone (eds.), Oxford Handbook on International Organizations (2016), pp. 1049, 1064 et seq. with further references. See infra at paras. 217 et seq. 177  ECtHR, 11/6/2013, App. No. 65542/12, Stichting Mothers of Srebrenica and Others v. The Netherlands, especially at para. 164. The ECtHR explicitly followed the holding of the ICJ in Jurisdictional Immunities of the State on the legal nature of immunity being a procedural bar to the admissibility of a (civil) claim (supra at para. 38) although the two types of immunities must be clearly separated. 178  Although the Netherlands was the defendant State before the ECtHR. 179  A similar problem arose concerning compensation claims regarding the UN mission in Haiti where Nepalese soldiers 174

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financial consequences of a judgment in favour of the many individual plaintiffs were ultimately considered as a threat to the functioning of the United Nations, in its role as “the” global international organization 180. Finally, a limited access to the Dutch courts was granted with regard to the responsibility of the Netherlands for the failure of the Dutch combat forces to protect the Bosnian internees 181. 47. In the legal literature, additional exceptions from immunity are discussed, especially with regard to “acta jure gestionis” of international organizations 182. In this context, the growing privatization of activities of international organizations has been addressed, including the growing tendency to engage in private-public partnerships 183. Again, the private-public divide comes into play. However, it is generally admitted that in this framework the delineation between official acts of the organization made under its mandate and loosely related under the command of the UN stabilization missions had infected large parts of the local population with cholera according the credible evidence, Wagner, “Cholera in Haiti : Lethal to UN’s Absolute Jurisdictional Immunity ?”, in Feinäugle (ed.), The Rule of Law (2016), pp. 297, 300 et seq. A class action against the United Nations failed in the 2nd Circuit, Georges v. United Nations, No. 15-455 (2nd Cir. 2016). 180  In this respect, the “functional” approach to the immunities of international organizations impacted on the outcome of the domestic proceedings, see Burci, in Feinäugle (ed.), The Rule of Law (2016), pp. 269, 287 et seq. 181  See supra at para. 38. 182   Boisson de Chazournes, in Peters et al. (eds.), Immunities in the Age of Global Constitutionalism (2015), pp. 285, 288 ; Webb, in Blokker and Schrijver (eds.), Immunity of International Organizations (2015), pp. 61, 64 et seq. 183  This development corresponds to tendencies of State authorities to use private law remedies in order to overcome hurdles of public law in cross-border transactions, see infra at paras. 54 et seq.

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private (or commercial) activities might be even more complicated than in the context of State immunity 184. 48. In addition, a debate about the extension of immunities to joint ventures and public private partnerships between individuals (or businesses) and interna185 tional organizations is ongoing  . However, these hybrids should not be exempted from the review by national courts ; as their status is not based on public international law there is no reason to limit the right of affected individuals to access to a court by an extension of international immunities to activities performed by those – private – entities 186. In this context, the fundamental guarantee of access to justice (Article 6, ECHR) must prevail 187. 49.  In conclusion, two aspects in the developments of the immunities of international organizations appear to be of particular interest : on the one hand, the fact that in employment disputes the concept of sovereign immunities has been combined with the quest for alternative judicial (or quasi-judicial) redress to be   Boisson de Chazournes, in Peters et al. (eds.), Immunities in the Age of Global Constitutionalism (2015), pp. 285, 289 ; Gaillard and Pingel-Lenuzza, “International Organizations and Immunity from Jurisdiction : To Restrict or to Bypass”, ICLQ 51 (2002), 1, 5 et seq. 185   Boisson de Chazournes, “Relations with Other International Organizations”, in Cogan, Hurd and Johnstone (ed.), Oxford Handbook on International Organizations (2016), pp. 693, 701 et seq. 186  In this regard, the immunities accorded by Switzerland to the Global Fund to Fight Aids, Tuberculosis and Malaria (a partnership between the Bill Gates Foundation and the WHO) of 2008, a Swiss foundation of a private law character (Article 80, Swiss Civil Code), seems to be highly problematic, Peters, in Peters (ed.), Immunities in the Age of Constitutionalism (2014), pp. 1, 17 ; Krieger, “Immunität  : Entwicklung und Aktualität als Rechtsinstitut”, BerDGesVR 46 (2014), 233, 247 et seq. 187  This issue has not been addressed by national or international courts. 184

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provided by the organizations to their staff 188 ; on the other hand, the re-emergence of the private-public divide that may be observed with regard to the growing activities of international organizations pursuing commercial and charitable objectives. It remains to be seen to what extent the functional approach will be combined with an assessment which includes an effective judicial protection of individuals affected by the expanding activities of international organizations 189. B.  Exercising Public Authority in Cross-Border Settings 1.  The principle of territoriality and the exercise of public authority 50. Let us change the perspective and ask whether and to what extent States and public entities (as claimants) are allowed to exercise public authority in cross-border settings 190. Here, the starting point seems to be clear. According to the territoriality principle, public law claims do not transgress the border of a given State without the permission of the foreign State concerned 191. In other words : organs of a foreign State are not permitted to exercise any public authority on the   In this respect, the establishment of internal (but independent) claims commissions for the settlement of claims of individuals against the international organization might be a welcome development, Schrijver, “Beyond Srebrenica and Haiti : Exploring Alternative Remedies against the United Nations”, in Blokker and Schrijver (eds.), Immunity of International Organizations (2015), pp. 329, 336 et seq. 189  See infra at paras. 216 et seq. 190   Collins, “Public Law Claims”, in Muir Watt (ed.), Private International Law and Public Law (2015), pp. 58 et seq. ; the classical statement was made by the US Supreme Court, Schooner Exchange v. McFaddon, 11 US (7 Cranch) 116, 136 (1812). 191   For a modern assessment cf. Ryngaert, Jurisdiction in International Law (2015), pp. 42 et seq. 188

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territory of another State – this prohibition operates to preclude a foreign State from bringing a public law claim in foreign courts 192. 51.  The significance of this issue was recently highlighted by the German Constitutional Court 193. In the case at hand, a constitutional complaint had been filed against the decision of the German Government to permit the Turkish Prime Minister to speak, in Oberhausen (a town in North Rhine Westphalia), at a rally on the 2017 referendum 194 in support of the amendment to the Turkish constitution. While the Court did not allow the lawsuit, it made a clear statement about the position of foreign officials on German soil : first, it held that without explicit permission by the German Government, there is no right of a foreign head of State or Government to enter German territory or to exercise public functions on German soil. Secondly, foreign heads of State or government officials acting in their official capacity in Germany are not entitled to claim any form of protection on the basis of fundamental or human rights. As a result, territoriality was held to limit the exercise of public authority on foreign soil. 52.  This being said, there are other situations where the delineation has become more difficult 195. Nevertheless,   Mann, Recueil des cours 111 (1964), 145 et seq. But note that the content of the territoriality principle is much less settled than often pretended, cf. Domej, Internationale Zwangsvollstreckung und Haftungsverwirklichung (2016), pp. 165 et seq. 193   German Constitutional Court, 8/3/2017, No. 2, BvR 483/ 17, available at : http ://www.bundesverfassungsgericht.de/ SharedDocs/Entscheidungen/DE/2017/03/rk20170308 _2bvr048317.html. 194   Of Turkish citizens, including those living abroad. In the referendum, the Turkish community living in Germany played an important role. 195  An interesting example regarding the “private” activities of heads of States is the communication of US President D. Trump via Twitter. At first sight, one might be inclined 192

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as the German Constitutional Court clearly stated, the cross-border exercise of public authority is possible with the consent of the other State. The scope of this consent can be particularly broad. For instance, the police might be empowered to prosecute suspects crossing open borders 196 ; similarly, cross-border attachments of assets might be permitted 197. Yet, the scope of the consent given by the State is not always clear as the example of crossborder judicial assistance demonstrates. In this area of law, it is unsettled whether the cross-border gathering of information for court proceedings is only permitted in the framework of international instruments on judicial co-operation or whether “informal” ways of collecting information abroad are equally permitted. Here, an unresolved issue relates to the activities of court-appointed experts on foreign soil. Some authors argue that these activities are permitted as long as the expert acts without exercising any coercion and as a “private person” 198. Others stress 199 that the expert is acting as an agent of the court, under the court’s authority, and that the expert’s to qualify these messages as a private (or personal) way of communication. However, according to Mr. Trump, his tweets are part of “modern presidency” and, therefore, belong to the official communication of the US President. Thus, they qualify as “public” acts done with the authority of the American President. As a consequence, persons (victims) targeted by those tweets cannot institute litigation against D. Trump based on their “private” nature. 196  Within the European Union, cross-border police operations are permitted by the so-called Schengen framework. 197  This is the case under Regulation (EU) 655/2014 on the cross-border seizure of bank accounts, OJ EU 2014 L 189/58. 198   Schlosser, “Die Tätigkeit des gerichtlichen Sachverständigen auf fremdem Territorium”, in Festschrift Klamaris (2016), pp. 685 et seq. ; Schlosser, in Schlosser and Hess, Europäisches Zivilprozessrecht (Commentary, 2015), Article 1, Hague Convention on the Taking of Evidence, para. 6. 199  Cour d’Appel de Versailles, 9/4/1993, Rev. crit. (1995), 80.

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activities relate to the foreign court’s taking of evidence 200. Such activity is subject to international instruments such as the European Regulation on the Taking of Evidence 201 or the Hague Convention on the Taking of Evidence 202, both of which require the consent of the requested State for any taking of evidence on its soil 203. Yet, the co-operation mechanisms of those instruments have proved to be too complicated and cumbersome. As a result, modern practice has largely transgressed the old conception of territoriality as imposing an unassailable limit to the exercise of foreign public authority 204. 53. Today, the biggest challenge to territoriality is posed by the development of international exchanges stemming from global investments and communication 205. The deep transformation of global communication and the free flow of capital entail major consequences for the regulatory powers of States which try to impose rules not only on actors within the territory but also on all such activities affecting their territory. During the last decades, deregulation and privatization have empowered strong   Hess, “Judicial Cooperation”, in Gottwald and Hess (eds.), Procedural Justice (2014), pp. 387, 406 et seq. (with further references). 201  Regulation (EU) 1206/2001, OJ 2001 L 174, Article 17 ; ECJ, 21/2/2013, case C-332/11, ProRail, EU :C :2013 :87. 202   Convention on the Taking of Evidence Abroad in Civil or Commercial Matters of 18 March 1970, 847 UNTS 231. 203   In case C-332/11, ProRail, EU :C :2013 :87, the ECJ declared that in the European Judicial Area, the expert appointed by the court might also act without any permission of the competent authorities of the other Member State concerned. However, it is still unclear whether the judgment intended to deviate from the existing legal regime, see Schlosser, Festschrift Klamaris (2016), pp. 685, 690 et seq. 204   Hess, in Gottwald and Hess (eds.), Procedural Justice (2014), pp. 387, 408. 205   Basedow, Recueil des cours 360 (2012), paras. 68 et seq. ; Cooper and Kuner, Recueil des cours 382 (2017), 25 et seq. 200

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transnational actors (or better : specialized businesses) to establish and impose self-regulated regimes at a global level 206. However, the global financial crisis (after Lehman, 2008) and the growing misuse of the internet to the detriment of privacy and data protection has triggered an increased intervention of regional (such as the European Union) or national regulators in order to address activities (not actors) affecting individuals within their territories 207. Therefore, one might even argue that a “breakdown” of territoriality has occurred since the millennium 208. However, territoriality as a concept of jurisdiction has resurfaced again : not only in the form of extraterritorial jurisdiction, but also as “extraterritoriality 2.0” 209. 2.  Enforcing public law claims in foreign domestic courts 54.  Another (classical) option that might be engaged to enforce public interests in cross-border settings is using these interests to ground a private claim before a foreign court. Regarding the position of foreign States and public authorities acting as claimants in foreign courts, the starting point is clear. As far as civil and commercial claims are concerned, a foreign public authority is entitled to pursue these claims in foreign fora. In this respect, the authority is assimilated to any other foreign party. Yet, with regard to public law claims, the situation is different. According to a firmly established   See infra at paras. 126 et seq. regarding the activities of ISDA and at paras. 132 et seq. on international sports law. 207  Scott, CMLR, 2014, 1343, 1345 et seq. Infra at paras. 138 et seq. (regarding data protection). 208   Cooper and Kuner, Recueil des cours 382 (2017), 30 ; Michaels, “Jurisdiction after Territoriality”, in Slot and Bulterman (eds.), Globalization and Jurisdiction (2004), pp. 105, 106 et seq. 209   See infra at paras. 212 et seq. 206

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rule of international law, any direct enforcement of public claims in cross-border cases is excluded 210. Therefore, in order to enforce across borders administrative acts on tax matters or administrative fines, public authorities must co-operate 211. The authorities of the State issuing such acts are barred from using the civil or administrative courts of other States absent a special agreement or regime permitting the cross-border enforcement of public law claims 212. Yet, the qualification of an underlying act as “private” or “public” might entail difficulties as the following examples demonstrate. 55. The ECJ was asked to decide several cases in which the distinction between private and public claims under Article 1 (1) of the Brussels I bis Regulation 213 was blurred 214. Often, public authorities tried to enforce across border “public law claims” by reframing them   Dutta, Durchsetzung öffentlich-rechtlicher Forderungen (2006), pp. 17 et seq., who eventually concludes that international law does not preclude the enforcement of public claims in foreign courts (p. 176) ; in the common law, this principle is called the revenue role, cf. Schlosser, Recueil des cours 284 (2000), 330 et seq. ; critical Basedow, Recueil des cours 360 (2012), paras. 573-575. 211  This was clearly expressed by the ECJ in one of the first judgments on the Brussels Convention, 14/10/1976, case C-29/76, LTU v. Eurocontrol, EU :C :1976 :137, cf. Schlosser and Hess, Art. 1, EuGVVO (Commentary, 2015), para. 7. 212   Conversely, private claims may also be enforced through the co-operation of public authorities. A prominent example in this respect is the co-operation of Central Authorities regarding the cross-border enforcement of maintenance claims, cf. Hess, in Gottwald and Hess (eds.), Procedural Justice (2014), pp. 387 et seq., see infra at paras. 158 et seq. 213   See the text supra at para. 1. 214   ECJ, 11/4/2013, case C-645/11, Sapir and Others, EU :C :2013 :228 ; ECJ 12/9/2013, case C-49/12, Sunico and Others, EU :C :2013 :545 ; critically Kohler, “Abschied von der autonomen Auslegung des Begriffs Zivil- und Handelssache ?”, IPRax 2015, 52. 210

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into “civil claims”, i.e. characterizing a claim for pension fraud as a claim of unjust enrichment 215 or a claim for unpaid VAT as a claim for tortious conspiracy 216. While the case law of the ECJ in this area has become more permissive, it is nevertheless filled with uncertainties 217. 56.  The latest decision was rendered in case C-551/15, Pula Parking 218. The facts of this case are quite simple : in September 2010, a German resident had parked his car in a public parking space in Pula, Croatia, while visiting the town as a tourist. He failed to pay for the parking. Five years later, the publicly-owned company Pula Parking, d.o.o., entrusted with the administration of the parking space (and with the power to collect outstanding debts), requested a public notary in Croatia to issue a writ of enforcement against Mr. Tederahn for the amount of 100 HRK (appr. € 13.15). The writ was sent to the defendant by (simple) mail. Eventually, the defendant challenged the writ in the Croatian court and argued that the matter did not fall within the scope of “civil matter”. In line with the applicable national procedure, the case was transferred to the Pula Municipal Court which referred to the ECJ the question of whether Regulation (EU) No. 1215/2012 was applicable in the present case. 57.  The ECJ confirmed the necessity to interpret Article 1 (1) of the Regulation in an autonomous way,   ECJ, 11/4/2013, case C-645/11, Sapir and Others, EU :C :2013 :228. 216   ECJ, 12/9/2013, case C-49/12, Sunico and Others, EU :C :2013 :545. 217   Pfeiffer, “Die Fortentwicklung des Europäischen Prozessrechts durch die neue EuGVO”, ZZP 127 (2014), 411 ; Kohler, IPRax (2015), 52, 55, see also infra at paras. 149 et seq. (on the cross-border enforcement of public law orders by family law instruments). 218   ECJ, 3/9/2017, case C-551/15, Pula Parking, EU :C :2017 : 193 – this judgment was the first case where the ECJ addressed the (recast) Regulation 1215/2012 in the substance. 215

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independently from the specific approach in the Member State concerned (Croatia). The Court stressed the “contractual nature” of the unpaid debt. It emphasized that the “parking debt” was not coupled with a fine and, rather, it was a “mere compensation for the services rendered”, i.e. the “provision” of a parking space to 219 the German tourist  . Following the conclusion of 220 AG Bobek  , the Court characterized the underlying legal relationship as a contractual one. The contractual relationship between the parties was subsequently classified as a “private one” and, finally, assimilated to a civil and commercial matter 221. 58. The legal reasoning developed by the ECJ is not convincing. The Court characterized the parties’ underlying relationship as contractual although no explicit contract was actually concluded. To the contrary, the mere parking of the car in a public space cannot amount to the conclusion of a lease contract – the streets in Pula are subject to a public law regime – similar to highways and regional streets 222. Of course, the administration may change the regime by gating the streets and requesting a   ECJ, 9/3/2017, case C-551/15, Pula Parking, EU :C : 2017 :193, paras. 34-36. In this respect, the ECJ did not explain why a “contractual relationship” existed between the municipal authorities of Pula and the tourist or between the parking authority and the tourist. The simple parking of a car in a public street does not amount to the conclusion of a contract. 220   Conclusion AG Bobek, 27/10/2016, case C-551/15, EU :C :2016 :825, para. 49. 221   ECJ, 9/3/2017, case C-551/15, Pula Parking, EU :C : 2017 :193, para. 38. 222   Hess, “Factual Contracts in European Law  ? Critical Reflections on the Conclusions of AG Bobek of October 27, 2016 in case C-551/15”, post on conflict of laws, 22 November 2016, http ://conflictoflaws.net/2016/factualcontracts-in-european-law-critical-reflections-on-theconclusions-of-ag-bobek-of-october-27-2016-in-case-c55115-pula-parking-tederahn-2/. 219

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payment for the use. However, as far as public streets are concerned there is at least a presumption that their use is subject to public regulation. Assuming the conclusion of a contract without any wilful act of concluding it is too far-reaching 223. Moreover, the fictitious contract is used by the Court as the main ground for the assumption of a private law relationship. Again, this reasoning is unconvincing : the mere existence of a contract between a public authority and a private individual does not signify the existence of a private law relationship 224. 59.  Eventually, the ECJ opened the door for public authorities to “privatize” debt collection in cross-border settings. As a result, public authorities may freely choose in which way to proceed : in domestic settings, they may prefer to directly collect outstanding debts by means of administrative acts. In cross-border situations, they may adopt a private law approach by stressing the “services” rendered to the foreign tourists. Yet, one might wonder whether public authorities are really free (like subjects of private law) to decide how they impose fees on citizens and to what extent they may depart from the framework of public law (confining their “freedom” of activity). 60.  Besides, it should be noted that the broad approach of the ECJ will encourage private debt collectors to offer their “services” to local authorities in order to “collect” administrative fines (or, better framed : to collect private service fees from EU citizens at high prices) 225. Eventually, the respect of local laws (on paying parking  In addition, for the user of parking space, it remains entirely unclear with whom the “contract” is concluded : the local administration, the authority/entity monitoring the street, the local police ? 224   This demonstrates the French doctrine of the public law contract (contrat public ou administratif), see Audit and Schill, “Introduction”, in Audit and Schill (eds.), Transnational Law of Public Contracts (2016), pp. 3, 5. 225   Example  : (exorbitant) entry fees for cars in London might be enforced Europe-wide by private debt collectors. 223

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fees) might be improved although the frustration of EU citizens about a Union which is encouraging “free enforcement riders imposing unreasonable fees” will certainly increase 226. This side effect of the Pula case seems to be rather unwelcome. 3.  Regulatory litigation and regulatory arbitration (a)  Public interests in civil litigation : European developments 61.  Similar phenomena are found in the context of the regulatory concept of (parallel) public and private enforcement. This concept relates to the growing tendency of lawmakers to not only enforce public interests by means of governmental or administrative authorities, but also complement them by means of private litigation 227. Here, individual claimants act as so-called “private public attorneys” – they litigate not only in their own interest 228 but also in the interest of the broader (public) interest of the law 229. This regulatory approach has been mainly adopted in the context of (international) economic Corresponding services are already promoted at specialized websites. 226   Under the present circumstances, this does not appear to be a viable solution for strengthening the trust of citizens in the achievements of EU law. 227   Hodges and Creutzfeld, in Micklitz and Wechsler (eds.), The Transformation of Enforcement (2016), pp. 115 et seq., highlighting the additional importance of criminal law. 228   Seeking the recovery of damages, Hodges, “US Class Actions : Promise and Reality”, in Micklitz and Wechsler (eds.), The Transformation of Enforcement (2016), pp. 199, 202. 229  As far as private parties are concerned, the concept favours the implementation and extension of collective redress, see infra at para. 65. ; Burbank, Farhang and Kritzer, “Private Enforcement of Statutory and Administrative Law in the United States”, in Gottwald and Hess (eds.), Procedural Justice (2014), pp. 197, 224 et seq.

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law, especially in competition law 230, securities law 231, but also in intellectual property law 232 and consumer protection 233. The advantage of this approach lies in the flexibility of the regulatory tools applied : by using remedies of private law for the enforcement of public goals, regulators may go cross-border without being bound by constraints of international law 234. Lawsuits in this area usually seek injunctive relief or compensation of damages. In both cases, the (alleged) infringement is mainly based on norms prescribing a specific behaviour (often setting a regulatory framework to an economic sector) whereas the relief sought is based on remedies of private law 235. 62. The regulatory concern relates to the extraterritorial application of domestic law. When seeking injunctive or compensatory relief for the infringement of mandatory economic law in civil courts, national courts may control and sanction the conduct of defendants situated in other jurisdictions who might act in a more permissive legislative framework 236. From their   Directive 2014/104/EU on actions for damages for the infringement of national and EU competition law, OJ 2014 L 349/1, Drexl, “The Interaction between Private and Public Enforcement in European Competition Law”, in Micklitz and Wechsler (eds.), The Transformation of Enforcement (2016), pp. 135 et seq. 231   Kronke, “Capital Markets and Conflict of Laws”, Recueil des cours (2000), 245, 272 et seq. ; Ryngaert, Jurisdiction, pp. 11 and 16. 232  Directive 2004/48/EC on the enforcement of intellectual property rights, OJ 2004 L 157/45. 233  Directive 2009/22/EC on injunctions for the protection of consumers’ interests, OJ 2009 L 110/30. 234   Buxbaum, “Transnational Regulatory Litigation”, Virginia J. Int’l L. 46 (2006), 251 et seq. 235   Burbank, Farhang and Kritzer, in Gottwald and Hess (eds.), Procedural Justice (2014), pp. 197, 239 et seq. 236  This conflict mainly arises in the Internet ; first case related to the sale of Nazi memorabilia via Yahoo. While these sales were permitted in the United States (where the website was 230

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perspective, there is no compelling need to refrain from activities which are fully permitted at their place of residence. However, in an extraterritorial setting, the targeted conduct must impact addressees in the 237 jurisdiction of the court seised  . Allowing these lawsuits may result in the extraterritorial application of national law to conduct carried out abroad 238. 63.  Yet, the extraterritorial application of (mandatory) national or regional law requires that several procedural and substantial preconditions be satisfied : first, the jurisdiction of the court seised must be established with regard to the foreign defendant and his or her conduct abroad. In this respect, recent developments portray a tendency to expand the realm of European procedural law to third State defendants : although the Brussels I Regulation (2001) was based on the basic principle that the defendant must be domiciled within the Member States of the Internal Market, the recast Brussels I bis Regulation (of 2012) allows lawsuits against defendants from third States in several circumstances : for instance, in consumer cases, the consumer may bring an action against the trader domiciled in a non-EU Member State hosted), it was prohibited by criminal law in France (where the website was accessed). French courts ordered Yahoo to close the website ; American courts did not recognize the judgment, cf. La Ligue contre le Racisme et Antisémitisme et l’Union des Etudiants Juifs de France c. Yahoo, TGI Paris, order of 22/5, 22/8 and 20/11/2000, Schultz, EJIL 23 (2008), 799, 809 et seq. 237   The issue was discussed by the US Supreme Court in Morrison v. National Australia Bank, 561 US 247 (2010), see infra at para. 69. 238   Colangelo, “What Is Extraterritorial Jurisdiction”, Cornell L. Rev. 99 (2014) 1303 et seq., Ryngaert, Jurisdiction (2008), pp. 75 et seq. ; Scott, “The New EU ‘Extraterritoriality’ ”, CMLR 51 (2014), pp. 1343, 1363 (on new legislative techniques of the European Union enlarging extraterritoriality).

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at the court of his or her domicile (Article 17 (1), Brussels I bis Regulation) 239. 64. A pertinent example of the extensive use of Articles 17 and 18 of the Brussels I bis Regulation is the Schrems II case which is currently pending before the ECJ 240. In this case, M. Schrems (an Internet activist and a doctoral law student of the University of Vienna) brought a lawsuit against Facebook Ireland in the District Court of Vienna. The plaintiff bases the jurisdiction of the Austrian Court on Articles 15 and 16 of the Brussels I Regulation (2001) 241 as Facebook usually establishes contractual relations with its users. He also represents six additional plaintiffs (from Austria, Germany and India) who assert to be consumers. The plaintiff claims compensation for damages (of 500 euros for each consumer) allegedly arising out of the violation of personality rights perpetrated by Facebook as a result of the infringement,   Schlosser, in Schlosser and Hess, Article 17, Brussels I bis Regulation (Commentary, 2015), para. 1. 240   Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 19 September 2016 – Maximilian Schrems v. Facebook Ireland Limited, Case C-498/16. The Austrian Court referred the following question : “2. Is Article 16 of Regulation (EC) No. 44/2001 to be interpreted as meaning that a consumer in a Member State can also invoke at the same time as his own claims arising from a consumer supply at the claimant’s place of jurisdiction the claims of others consumers on the same subject who are domiciled (a) in the same Member State ; (b) in another Member State ; or (c) in a non-Member State, if the claims assigned to him arise from consumer supplies involving the same defendant in the same legal context and if the assignment is not part of a professional or trade activity of the applicant, but rather serves to ensure the joint enforcement of claims ?” 241  Now Articles 17 and 18 of the Brussels I bis Regulation. As Articles 15 and 16 of the old Brussels Regulation only apply to defendants within the European Union, the lawsuit was brought against Facebook Ireland. 239

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according to the plaintiff, of several standards of the EU Data Protection Directive. Furthermore, the plaintiff allegedly represents more than 50,000 individuals whose personality rights were (allegedly) infringed by Facebook 242. The Austrian Supreme Court referred to the ECJ the question of whether assigned claims of consumers can be brought by another consumer under Articles 15 and 16 of the Brussels I Regulation 243. If the ECJ allows the filing of the assigned claims at the plaintiff’s domicile, the initiation of collective claims of consumers would be largely facilitated. Under the new Articles 17 and 18 of the Brussels I bis Regulation (2012), consumers domiciled in the European Union can sue Facebook, a Californian corporation, directly at their State of domicile. In his conclusion of 14 November 2017, AG Bobek argued that Article 18 of the Brussels I bis Regulation does not apply to assigned claims even if the assignor and the assignees are consumers 244. 65.  The enlargement, in 2012, of the scope of this head of jurisdiction to third State defendants was explained with the need of improving consumer protection in the Internal Market – the public interest of regulating the market by protecting weak parties 245. However, the consequences of this change are far-fetched : in the era of the Internet, almost every business offering online  Obviously, these claims will be invoked against Facebook once the “pilot case” has been won. The case is backed by a litigation financer (Roland Prozessfinanz) which will take 20 per cent of the eventual profits. 243   Austrian Supreme Court, 6 Ob 23/16z, judgment of 20/7/2016. 244  Opinion AG Bobek, 14 November 2017, case C-498/16, Schrems II, EU:C:2017:863, paras. 69 et seq. In its judgment of 25 January 2018, the Court followed the Conclusions of the AG, ECJ, case C-498/16, Schrems II, EU :C:2018:37. 245   Mankowski, “Änderungen im internationalen Verbraucherprozessrecht durch die Neufassung der EuGVVO”, RIW (2014), 625, 626. 242

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services to European consumers is subject to the reach of European consumer law. 66.  Similarly, several specific EU instruments require economic actors domiciled in third States to open an establishment within an EU Member State in order to subject their activities in the European Union to the jurisdiction of EU courts. Once this establishment has been opened, civil lawsuits can be filed at the seat of the establishment (Article 7, No. 5, JR) 246. Finally, according to Article 7, No. 2, of the Brussels I bis Regulation jurisdiction based on tort may be established against a defendant domiciled in a Member State if the tortious conduct took place within the Union. However, defendants in third States are not subject to jurisdiction for tortious conduct under Article 7, No. 2, of the Brussels I bis Regulation. In these cases, the jurisdictional rules of the EU Member States apply. However, some EU instruments providing for a stronger protection of specific interests (and rights) allow lawsuits against third State defendants at the place where the tort was committed or the damage sustained 247. Finally, some EU instruments even create a head of jurisdiction against third State   Under the Brussels I bis Regulation, Article 7, No. 5, limits the jurisdiction to activities of the branch. Other EU instruments go further : for instance Article 97 (2) of Regulation (EC) No. 207/2009 on Community Trade Marks (EU Trademark Regulation) states that : “the provisions of Chapter II of the Brussels I Regulation which are applicable to persons domiciled in a Member State shall also be applicable to persons who do not have a domicile in any Member State but have an establishment therein”. Recently, the ECJ, 18/5/2017, Case C-617/15, Hummel Holding, ECLI :EU :C :2017 :390, held that the “establishment” under Article 97 of the EU Trade Mark Regulation also applies to “grandchild establishments”. This case law enlarges the territorial scope of the Regulation considerably. 247  Example : Article 97 (5) EU Trademark Regulation – this article confines the jurisdiction to the damages arising out of the infringement in the respective EU Member State. 246

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defendants at the plaintiff’s domicile 248. These examples demonstrate how the concept of private enforcement impacts on the rules of jurisdiction 249. 67. The second precondition for the extraterritorial application of mandatory law is an enlargement of the conflict of law rules in the sense that specific mandatory norms are applied to conduct abroad. In international commercial and economic law, conflicts of law rules are often designed in such a way that the activities within a specific region (or market) are protected against any infringement coming from abroad. Similarly, Article 6 (3) of the Rome II Regulation 250 connects cartel claims  Example : Article 97 (2), EU Trademark Regulation, which states : “If the defendant is neither domiciled nor has an establishment in any of the Member States, such proceedings shall be brought in the courts of the Member State in which the plaintiff is domiciled or, if he is not domiciled in any of the Member States, in which he has an establishment.” This provision establishes a clearly exorbitant head of jurisdiction against third State defendants. 249   These developments are explained in detail infra at paras. 138 et seq. 250  Regulation (EC) No. 864/2007, OJ 2007 L 199/40, Article 6 (3) reads as follows : “(a) The law applicable to a non-contractual obligation arising out of a restriction of competition shall be the law of the country where the market is, or is likely to be, affected. (b) When the market is, or is likely to be, affected in more than one country, the person seeking compensation for damage who sues in the court of the domicile of the defendant, may instead choose to base his or her claim on the law of the court seised, provided that the market in that Member State is amongst those directly and substantially affected by the restriction of competition out of which the non-contractual obligation on which the claim is based arises ; where the claimant sues, in accordance with the applicable rules on jurisdiction, more than one defendant in that court, he or she can only choose to base his or her claim on the law of that court if the restriction of competition on which the claim against each of these defendants relies directly and 248

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with the market where the infringement took place. Here, the concept of protecting a specific “space” (or area) becomes evident. Conduct performed outside of the European Internal Market is targeted whenever it affects the Internal Market. The protective (and regulatory) concept of the provision is clearly one-sided. 68.  The practical impact of private law enforcement is enhanced by procedural devices such as collective redress, access to information, and cost shifting rules which shall empower the private party to effectively bring representative actions 251. Consequently, private law enforcement conceptually changes the underlying model of civil procedure which is conceived as a private process between two individual litigants 252. As a result, the distinction between private and public litigation becomes blurred 253. Public interests are implemented by civil law remedies – restrictions of public international law on the exercise of public authority are tainted by the private law context of the respective domestic litigation. (b)  The situation in the United States 69.  Private law enforcement as a regulatory concept 254 was originally developed in the United States  . substantially affects also the market in the Member State of that court.” 251  See infra at paras. 139 et seq. concerning the extraterritorial application of the EU General Data Protection Regulation. 252   Jauernig and Hess, Zivilprozessrecht (30th ed., 2011), § 1, para. 9 ; Hess, “Private Law Enforcement und Kollektivklagen”, Juristenzeitung (2011), 66 et seq. 253   Hensler and Thornburg, “The Public Dimension of Private Collective Litigation : A Comparative Analysis”, in Hensler, Hodges and Tzankova (eds.), Class Actions in Context (2016), pp. 259 et seq. 254   Burbank, Farhang and Kritzer, in Gottwald and Hess (eds.), Procedural Justice (2014), pp. 197, 212 et seq. ; Colangelo,

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However, its extraterritorial application has suffered from several drawbacks since 2010 when the US Supreme Court held that the application of US economic law to activities taking place abroad was only possible when Congress explicitly stated that it should apply to conduct abroad. In the landmark decision Morrison 255, which was followed by RJR Nabisco 256, the US Supreme Court largely curbed the extraterritorial application of US economic law in international cases 257. In Kiobel, the US Supreme Court denied the (extraterritorial) application of the ATCA to violations of customary 258 international law committed abroad  (with rather Cornell L. Rev. 99 (2014) 1333 et seq. ; Buxbaum, Virginia Int’l L. 46 (2006), 251 et seq. 255   Morrison v. National Australia Bank, 561 US 247, 266 (2010) holding that Section 10 (b) of the Securities Exchange Act (1934) only applies to purchase and sales of securities in the United States. 256   RJR Nabisco, Inc., v. European Community, 136 S. Ct. 2090 (2016) holding that the private cause of action (Section 1964) under the Racketeer Influenced and Corrupt Organization Act does not apply to conduct outside of the United States. As a result, a lawsuit initiated by the European Union against a US corporation (which was based on alleged smuggling of cigarettes and money laundering) was dismissed. 257  According to the “presumption against extraterritoriality”, US law does not apply in an extraterritorial way (to parties domiciled abroad) unless Congress clarifies its will that the pertinent legal (usually : regulatory) provision shall be applied to legal situations/addresses outside the United States, Morrison, 561 US 247 (2010), at 255 ; Brilmayer, “New Extraterritoriality : Morrison v. National Australia Bank, Legislative Supremacy, and the Presumption against Extraterritorial Application of American Law”, SW L. Rev. 40 (2011), 655 et seq. It should be noted that the presumption had been discussed since the 1990s, Ryngaert, Jurisdiction (2008), pp. 63 et seq. 258  In the 1990s there were attempts of the US human rights movement to transpose this approach to violations of international law by foreign States and businesses. Here, the underlying idea was that individual plaintiffs who

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limited exceptions 259). In Bauman v. Daimler 260 the Supreme Court curtailed the general jurisdiction of US courts over foreign corporations based on doing business of the defendant in the district of the court seised. As a consequence, so-called f-cubed (class) actions brought by foreign plaintiffs against foreign defendants in US 261 courts have become an exception  . Nevertheless, there are still prominent international cases decided by US courts 262. However, as I will demonstrate 263, the European Union has embraced the opposite approach with regard to data protection. cannot access international tribunals may nevertheless seise domestic civil courts in order to enforce the right granted to them under international law. Yet, the US Supreme Court barred this legal concept in Kiobel v. Royal Dutch Petroleum Co., 132 S. Ct. 1738 (2013), supra at footnote 43. 259   Dittmers, “The Applicability of the Alien Tort Statute to Human Rights Violations by Private Corporations”, Journal of Science, Humanities and Art (2017), addressing the liability for “aiding and abetting” human rights. 260   Daimler AG v. Bauman, 134 S. Ct. 746 (2014), Silberman, “Daimler AG v. Bauman : A New Era for Judicial Jurisdiction in the United States (2015)”, New York University Public Law and Legal Theory Working Papers, Paper 522. 261  In Morrison, the Supreme Court expressly held that the extraterritorial application of US law was not beneficial : “While there is no reason to believe that the United States has become the Barbary Coast for those perpetrating frauds on foreign securities markets, some fear that it has become the Shangri-La of class-action litigation for lawyers representing those allegedly cheated in foreign securities markets.” Morrison v. Nat’l Austl. Bank Ltd., 130 S. Ct. 2869, 2886 (2010). 262  A recurrent issue relates to the application of the ATCA to private actors (corporations). The US Supreme Court is expected to decide on this issue soon, cf. In re Arab Bank, PLC Alien Tort Statute Litigation, 808 F. 3d 144 (2d Cir., 2015) which is currently pending in the US Supreme Court. 263  See infra at paras. 138 et seq.

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(c)  Regulatory settlements 70.  Regulatory litigation does not necessarily end in a judgment. A much more comprehensive regulatory scheme is achieved when parties settle and the competent civil courts endorse the settlement as a binding agreement 264. Especially in collective litigation, a class action settlement may to a large extent substitute regulation by public authorities 265. In this setting, considerations relating to territoriality do not play any considerable role. In the past years, class action settlements have been largely used to regulate the consequences of misbehaviour, especially in security and cartel cases. Recently, public regulators have adopted this approach by negotiating settlements in case of (major) violations of financial or environmental protection law. Here, public authorities use a “private” approach to regulate (and to finance) their policies 266. At  If the settlement is based on an opt-out mechanism, also non-participating class members will be bound. 265   Bilsky and Fisher, Rethinking Settlement, Theoretical Inquiries in Law 15 (2014), 77, 86 et seq. referring to Fiss, “Against Settlement”, Yale LJ 93 (1984), 1073 et seq. who (in the American domestic context) distinguishes two different conceptions of civil litigation : the dispute resolution model and the public norm elaboration model. 266  Prominent and recent examples are provided by the 2016 settlements between Volkswagen and the United States Environmental Protection Agency regarding the diesel scandal. According to the description of EPA, Volkswagen agreed to spend up to 14.7 billion US dollars to settle allegations of using “defeat devices” to cheat emissions tests and deceive customers. Volkswagen will offer consumers a buyback and lease termination for nearly 500,000 model year 2009-2015 2.0 litre diesel vehicles sold or leased in the United States, and provide additional compensation to consumers, at a cost of up to 10 billion US dollars. In addition, Volkswagen will spend 4.7 billion US dollars to mitigate the pollution from these cars and invest in green vehicle technology. https  ://www.epa.gov/enforcement/ volkswagen-clean-air-act-civil-settlement. 264

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the same time, the targeted businesses cannot challenge the settlement in court as they have agreed (or have been forced to agree) to the settlement. This development appears to be problematic 267. 71. A pertinent example in this respect was the Google Book Search Settlement – a case which finally did not end in a binding result : in this case, litigation started in New York in September 2005, when the American Authors Guild and the American Association of Publishers (on behalf of the authors and the publishers) brought two class actions against Google Inc. which had launched a broad programme aimed at digitalizing books held by public libraries. Digital copies of the books were made available online – public domain books entirely, other books partially (so-called snippets). Both lawsuits were initially based on federal law on the protection of copyrights (17 USC, § 106). In the proceedings, it became evident that the parties involved were not only from the United States, since the Google book search project also included foreign authors and publishers. As a result, the case was not only about the infringement of US copyrights but of copyrights anywhere in the world 268. Shortly after the filing of the lawsuit, parties commenced negotiations in order to settle the case. In October 2008, Google announced that an agreement was reached whereby it would pay 125 million   Kurer, Legal and Compliance Risk (2015), pp. 22 et seq. (describing pressure exercised by investigations of US authorities on foreign companies based on criminal and civil law) ; different opinion Bilsky and Fisher, Theoretical Inquiries in Law 15 (2014), 77, 97 et seq. (addressing the Holocaust litigation in the 1990s and after the Millennium in US courts). 268   Hess, “Das Google Book Search Settlement – Gefahr einer weltweiten Amerikanisierung und Monopolisierung des Urheberrechts ?”, in Reuß and Rieble (eds.), Autorenschaft als Werkherrschaft in digitaler Zeit (2009), pp. 67 et seq. 267

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US dollars ; in return, the agreement included licensing agreements allowing Google to sell personal and institutional subscriptions to its database. However, several foreign Governments and the US Department of Justice filed amicus curiae briefs and statements of interest expressing concerns that the settlement would infringe international law 269 as well as US antitrust law 270. 72.  In response to these interventions, the parties negotiated a second settlement of a more limited scope. The new settlement only applied to books of US, British and Australian authors, and Judge Chin proposed to replace 271 the opt-out settlement with an opt-in settlement  . Yet, parties were unable to reach an agreement and, finally, Judge Chin certified the Authors Guild as the representative of a class of US authors under Rule 23 (b), FRCP 272. However, in 2013, the Court of Appeal overturned the class certification 273. Eventually, the lawsuits were dismissed entirely as the federal courts considered that Google’s digitalization was covered 274 by the “fair use exception” of 17 USC, §  107  .   Authors Guild Inc. v. Google, Inc., 770 F. Supp. 2d 666, 684-686 (SDNY, 2011) summarizing “international law concern”, especially a potential violation of the Berne Convention on Copyrights. 270  Department of Justice, Statement of Interest, 18 September 2009, ECF No. 720. 271   Authors Guild, Inc. v. Google, Inc., 770 F. Supp. 2d 666, 686 (SDNY, 2011) – the court ultimately refused to approve the settlement. 272   Authors Guild, Inc. v. Google, Inc., 282 FRD 384 (SDNY, 2012). 273   Authors Guild, Inc. v. Google, Inc., 721 F. 3d 132 (2nd Cir., 2013) – the appellate court of appeal reversed because it considered that the certification of the class was premature in the absence of a preliminary determination of the “fair use” defence. 274   Authors Guild, Inc. v. Google, Inc., 804 F. 3d 202 (2nd Cir., 2015). 269

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Consequently, Google has continued the digitalization project without compensating authors and publishers. 73. The Google book search settlement case illustrates the far-reaching regulatory dimensions of the US class action (and of collective redress in general) : as the initial lawsuit was based on a class comprising all authors of books which had been digitalized by Google, the lead plaintiffs eventually brought an action “on behalf of the world” 275. At the same time, the applicable standards and laws remained equally unclear 276. The first settlement proposal was based on US copyright law – using the broad permissive concept of “fair use” as a tool to establish the digitalization as an inherent limit of the copyright 277. However, the fair use concept is a specific feature of US law, not known by other copyright systems. Finally, the parties tried to take profit from two major features of the US civil justice system : the possibility to bring a lawsuit for a broad group of represented plaintiffs and the possibility to settle the case in the shadow of the law by negotiating and concluding an agreement to be approved by the court. As a class action settlement qualifies as a judgment, it may be recognized  From the perspective of international procedural law, this effect appears to be surprising : with regard to defendants, most heads of jurisdiction intend to protect parties from being subjected to courts without any connection to the subject matter of the dispute. No similar protection exists with regard to plaintiffs. An opt-out mechanism offers only a weak protection against adverse effects of a lawsuit in a foreign forum – especially when the lawsuit is lost and the respective plaintiff faces adverse preclusive effects (precluding him from filing the claim individually). 276   The international dimensions only appeared when foreign Governments and authors submitted amici curiae briefs. 277  This argument was finally endorsed by the Federal Court of the 2nd Circuit, Authors Guild, Inc. v. Google, Inc., 804 F. 3d 202 (2nd Cir., 2015). 275

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and enforced outside the United States 278. As a result, the regime established by the parties (under the loose supervision of the judge) should operate as a regulation of unlimited territorial scope. In the meantime, the US model of transnational dispute settlement and regulation has been copied by other jurisdictions, especially by the Netherlands 279. 74. Thus far, the Google book search case also portrays the limits of regulatory litigation. On the one hand, the original idea of the plaintiffs to certify a “world class” of authors was rejected by the federal court. In addition, the Google book search case demonstrates that negotiation powers of private parties are limited by mandatory law, especially antitrust law. However, negotiations between (private) parties on settlements are doubtful when one side has not explicitly been given power of attorney by the represented parties. Still, this is the fundamental deficit of the “opt-out” model in collective litigation 280. Yet, these limits are less stringent when public authorities are involved in the litiga281 tion/negotiation process  . In cross-border settings,   Hess, “Die Anerkennung eines Class Action Settlement in Deutschland”, JZ (2000), 373 et seq. ; recently C. A. Ghent, 27/3/2017, recognizing an American class action settlement (based on opt out), available at : https ://www.rechtbankentribunaux.be/sites/default/files/public/content/lh_-_ geanonimiseerd.pdf. 279  On the WCAM see Hensler, “ ‘A Class Action ‘Mash-Up’ : In Re Royal Dutch/Shell Transport Securities Litigation”, in Hensler, Hodges and Tzankova (eds.), Class Actions in Context (2016), pp. 170, 178 et seq. (describing the strategic use of the WCAM proceedings against securities litigation in the United States). 280  This issue is often described as the principal agent problem in collective litigation, Hensler, “Class Actions in Context”, in Hensler, Hodges and Tzankova (eds.), Class Actions in Context (2016), pp. 387, 393 et seq. 281  However, public authorities are usually only empowered to negotiate solutions in the framework of their legislative/ administrative empowerment. 278

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however, there remains the concern that the “negotiated solution“ transgresses the limits of mandatory law – especially when the “agreed” solution is imposed by the stronger party (without any substantial review by a court). (d)  Regulatory arbitration 75. Similar developments are found in arbitration which is sometimes used as a shield against State intervention into the regulatory activities of private actors 282. Particularly illustrative of such cases are the online dispute mechanisms set up to solve disputes on the assignment of domain names. The registration and the assignment of Internet domains is organized and controlled by ICANN, a non-profit organization under the law of California 283. Since 1998, ICANN administers access to the Internet (by operating the Internet Assigned Names Authority, IANA, and by maintaining the Domain Name System root zone, DNS, which includes Internet protocols and IP-addresses). ICANN sets technical standards which shall maintain the stability of the Internet and which are applied worldwide 284. The principal participants and constituencies of ICANN are private organizations, although ICANN’s internal structures are structures in such a way as to represent the global Internet community 285. In addition, more than 111  The most prominent example is sports arbitration, see infra at paras. 132 et seq.   Hartwig, “ICANN – Governance by Technical Necessity”, in Bogdandy et al. (eds.), The Exercise of Public Authority by International Institutions (2010), pp. 575 et seq. ; Zekoll, Online Dispute Resolution (2014), pp. 9 et seq. 284  As DNS and regulator, ICANN exercises authority over core constitutive elements of the Internet, Zekoll, Online Dispute Resolution (2014), p. 10. 285  ICANN is currently composed of three Supporting Organizations  : The Generic Names Supporting Organization (GNSO) deals with policy making on generic top-level 282 283

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Governments are represented by ICANN’s governmental advisory committee 286 ; also, international organizations participate as observers 287. The organizational structure and the different political influences within ICANN have been a matter of intense debate and concern, especially after the NSA scandal as revealed in 2012. Since then, the influence of the US Government has been decreased and, in 2016, ICANN was completely detached from the US Government. 76.  Since 1999, ICANN introduced online procedures aimed at resolving trademark and domain name disputes arising out of so-called “cybersquatting” 288. It adopted a “Uniform Domain Name Dispute Resolution Policy” (UDRP) which provided for an online procedure for the quick resolution of trademark disputes related to “cybersquatting” 289. The UDRP applies on the basis of an adhesion contract : in order to be accredited (and to become the holder of a domain), applicants have to agree to a standard contract which contained a dispute resolution clause in favour of an ICANN-approved 290 dispute resolution service provider  . The dispute domains (gTLDs). The Country Code Names Supporting Organization (ccNSO) is in charge of policy making on country-code top-level domains (ccTLDs). The Address Supporting Organization (ASO) deals with policy making on IP addresses. 286  A similar organizational structure is found at the WADA, see infra at para. 133. 287   Mariottini, in Hess, Bergström and Storskrubb (eds.), EU Civil Justice (2016), pp. 57, 58 (footnote 2). 288  This practice includes the bad faith registration of domain names (similar to trademarks) in order to “sell” them to the owner of the trademark. Zekoll, Online Dispute Resolution (2014), p. 10. 289  The elaboration of the dispute settlement procedure was made in co-operation with WIPO, the World Intellectual Property Organization, a specialized agency of the United Nations, Zekoll, Online Dispute Resolution (2014), p. 12. 290  There are currently three regional approved providers : in Europe, it is the Czech Arbitration Centre in Prague.

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resolution clause is not exclusive, hence parties remain free to go to State courts. The arbitration proceedings are designed very effectively : with low fees and with a decision given within 10 days. As a result, the majority of such disputes are decided by arbitration 291, and arbitral tribunals have established an impressive case law building up precedents 292. 77. In 2011, ICANN’s board decided to largely extend the generic Top Level Domains (gTLDs) 293 to new categories which correspond to brands or names of companies and organizations but not individuals 294. Therefore, an organization or a business could apply to register, for instance, “.volkswagen” or “.taxi” or “.bayern” 295. The new gTDLs were served by more than 900 registrars responsible for the registration and operation of the new domains. Again, the whole process was based on standard terms elaborated by ICANN. Each applicant had to consent to these terms which include a sophisticated application procedure 296 as well as a dispute resolution scheme 297. The registration fee amounted to 185,000 US dollars 298. Therefore, only   Zekoll, Online Dispute Resolution (2014), pp. 13-15.   Kaufmann-Kohler, “Arbitral Precedent  : Dream, Necessity or Excuse ?”, Arb. Int’l 23 (2007), 357, 367 et seq. 293  This is nothing more than the suffix at the end of a domain name. In the 1980s, only seven gTDLs were admitted : .com, .edu, .gov., .int, .mil, .net, and .org. Another gTDL relates to abbreviations of countries. 294   Mariottini, in Hess, Bergström and Storskrubb (eds.), EU Civil Justice (2016), pp. 57, 59. 295  For a list of different gTDL domains cf. Bettinger and Rodenbaugh, “New gTLD Dispute Resolution Procedure”, in Bettinger and Waddell (eds.), Domain Name Law and Practice (2nd ed., 2015), pp. 65, 80-88. 296   Mariottini, in Hess, Bergström and Storskrubb (ed), EU Civil Justice (2016), pp. 57, 59 et seq. 297  See infra at para. 80. 298   In addition, ICANN raises an annual operation fee of 25,000 US dollars, Bettinger and Rodenbaugh, in Bettinger 291 292

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major social organizations and businesses were able to register – registrations were often made in order to protect existing trademarks (brands) and similar industrial property rights. During the first application period (open from January 2012 to April 2012), 1,930 applications were filed and, by 5 May 2017, 1,241 Registry Agreements were concluded between ICANN and the respective applicants 299. A second application round shall be launched at a date yet to be determined. 78.  According to the rules that govern the application procedure 300, when submitting an application for a registration an applicant had to prove his or her existence and to demonstrate a “legitimate interest” in having the gTLD registered. After an initial registration and check of completeness, the application was made public for 60 days in order to give the public an opportunity to comment. Governments had the possibility to bring a formal notification that an applied-for gTLD string might be contrary to national law 301. While these comments and notifications did not per se stop the registration process, they could nevertheless influence the assessment in the review process performed by the different registration panels 302. In addition, the evaluation process provided for formal objection procedures, which could be launched after the 60 days’ public comment and Waddell (eds.), Domain Name Law and Practice (2nd ed., 2015), pp. 65, 74 (at para. ID.36). 299  https  ://newgtlds.icann.org/en/program-status/delegatedstrings. 300   The procedure is set out in the Applicant Guidebook, version 4 June 2012, available at : https ://newgtlds.icann. org/en/applicants/agb (visited on 13 May 2017). 301  From a so-called public law perspective, this procedural right to intervene in “private” proceedings “invites” States to intervene in purely “private” dispute settlement in order to preserve their regulatory interests. 302  In this respect, ICANN appointed independent experts to review the applications.

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period. It was followed by an evaluation procedure where the application was reviewed for socalled string similarity ; reserved names 303, DNS stability 304 and (the respect of) geographic names. This review was performed by specialized evaluation panels of ICANN composed of independent experts. 79.  Alongside the application procedure, third parties could bring objections against the registration. The Application Guidebook provided for four objections : (1) string confusion objections 305, (2) legal rights objections 306, (3) public interest objections 307 and (4) community objections 308. The different objections entailed different standing of potential objectors : category (1) opened up standing only for the owner of the similar TLD (or an applicant for it), and the category (2) included holder of registered or unregistered trade Some names were excluded from appearing in the gTDL, especially those of the International Olympic Committee and the Red Cross, Applicant Guidebook, Module 2-10. 304  This test related to the ability of the applicant to operate a registry, including a financial review. 305  This objection relates to the concern that “the applied-for gTLD string is confusingly similar to an existing TLD or to another applied-for gTLD string in the same round of applications”. Applicant Guidebook of 4 June 2012, para. 3-3. 306  As explained by ICANN : “The applied-for gTLD string infringes the existing legal rights of the objector.” Applicant Guidebook of 4 June 2012, para. 3-3. 307   “The applied-for gTLD string is contrary to generally accepted legal norms of morality and public order that are recognized under principles of international law.” Applicant Guidebook of 4 June 2012, para. 3-3. In the practice of the dispute resolution panels, international law was understood as a reference to any instrument of international human rights law as the Universal Declaration of Human Rights. 308  “There is substantial opposition to the gTLD application from a significant portion of the community to which the gTLD string may be explicitly or implicitly targeted.” Applicant Guidebook of 4 June 2012, para. 3-3. 303

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marks. However, category (3) was open to anyone, including consumer organizations and non-governmental organizations 309. Category (4) was open to any affected “community”, whereas the concept of “community” was broadly understood by the dispute resolution panels. 80.  The different objections were brought according to several dispute settlement procedures administered by divergent institutions specializing in (international) dispute settlement 310. String confusion objections were decided by arbitral panels established under the auspices of the International Centre for Dispute Resolution, the international division of the American Arbitration Association which provided for specific arbitration procedures 311. Legal rights objections were decided by the WIPO Arbitration and Mediation Center 312. Limited public interest objections and community objections were administered by the International Centre of Expertise 313 of the International Chamber of Commerce  . All expert determinations of the different dispute settlement schemes were fully published by ICANN on its website as they became publicly available. As of 5 May 2017, 234 disputes were solved, while 64 procedures on contested applications were still open 314.   Mariottini, in Hess, Bergström and Storskrubb (eds.), EU Civil Justice (2016), pp. 57, 68 et seq. 310  ICANN concluded a specific memorandum of understanding with each institution setting the framework for the dispute resolution mechanisms. The procedures applied were based on the established arbitration rules, but were simplified, usually written and standardized proceedings. 311  Cf. https  ://www.icdr.org/icdr/faces/icdrservices/icann. 312  http  ://www.wipo.int/amc/en/domains/lro. 313  https  ://iccwbo.org/dispute-resolution-services/icann-gtldprocess/. 314  https  ://newgtlds.icann.org/en/program-status/statistics, visited on 13 May 2017. 309

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81.  Although the disputes settlement mechanism set up by ICANN cannot entirely shield disputes relating to gTLDs from State courts, the great majority of disputes is being handled by the specific dispute resolution system 315. The intervention of State courts is largely excluded as there is usually no need within the ICANN domain system to resort to the New York Convention in order to enforce the awards and expert determinations : the awards and expert determinations rendered in the framework established by ICANN are immediately implemented by ICANN itself, which simply orders the registration or the removal of a specific gTLD. Within the dispute resolution system, arbitral tribunals and experts decide the disputes according to the rules and standards of ICANN – international law and national laws are only applied in so far as the rules and bylaws of ICANN refer to them. As a result, the standards set by ICANN transgress the mere “technical framework” and, rather, create a “self-contained regime” within the transnational law of the Internet 316. From the perspective of the privatepublic divide, it appears difficult to characterize gTLDs as “public” 317 : in fact, ICANN itself, its bylaws and also the dispute resolution mechanisms set up by it are based on private law and on the consensus of those included in the (contractual) process. And while the quasi-regulatory  Additional incentives are provided by the ICANN settlement schemes : low costs, fast decisions and the immediate enforceability within the international domain framework. 316  This corresponds to the “lex mercatoria” in international commerce, see Röthel, Lex mercatoria, lex sportiva, lex technica – Private Rechtsetzung jenseits des Nationalstaates ?, JZ (2007), 755 et seq. ; Adolphsen, “Vereinbartes Recht am Beispiel der lex sportiva”, in Bumke and Röthel (eds.), Privates Recht (2012), pp. 93, 95 et seq. 317   Hartwig, in Bogdandy et al. (eds.), The Exercise of Public Authority (2010), pp. 575, 604, summarized that the question of whether ICANN exercises public authority had to be answered negatively. 315

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power invested in ICANN implied that the gTLD registration procedures could be opposed by third parties and also in the public interest, the dispute settlement processes applied were – nevertheless – entirely private.

CHAPTER III

THE INTERNATIONAL PERSPECTIVE : PRIVATE CLAIMS IN INTERNATIONAL FORA 82. The previous chapter depicted the expanding reach of private law dispute resolution facilities in growing platforms of globalized interchanges. However, considerable developments are equally taking place in public international law, which has become progressively more accessible to individuals. Accordingly, this chapter expounds these developments since the beginning of the twentieth century. A.  Private Claims in the International Arena 1.  Diplomatic protection 83. In classic international law, the individual lacks legal subjectivity and standing. Individuals are represented (and protected) by their home States at the international level. Since the nineteenth century, diplomatic protection has provided the main procedural mechanism to overcome the lack of subjectivity of individuals in international law 318. In the international arena, individuals are represented by the State of their nationality ; individual claims are espoused by the home State of the victim in order to obtain reparation 319. Systematically, diplomatic protection forms part of the   Dugard, “Diplomatic Protection”, in Wolfrum (ed.), MPEPIL (2009), para. 1 ; Waibel, Sovereign Defaults (2011), p. 26. 319  PCIJ, Mavrommatis Palestine Concessions, Judgment No. 2, PCIJ Rep., Ser. A, No. 2 (1924), at 12 ; Hess, Staatenimmunität bei Distanzdelikten (1992), pp. 342 et seq. 318

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law of State responsibility, which is based on a wrongful act which can be attributed to the defendant State 320. Accordingly, the private-public divide is also present in the context of diplomatic protection where the (allegedly) wrongful act is usually perpetrated by an organ of the defendant State vis-à-vis the individual 321. Therefore, the internal wrongful act is usually qualified as an acta jure imperii 322. 84.  The relationship between the individual claim and the State claim has been set out in several international decisions. The classical “international” approach was formulated by the Permanent Court of International Justice in Mavrommatis where the Court held : “By taking up the case of one of its subjects and by resorting to diplomatic protection or international judicial proceedings on his behalf, a State is in   International Law Commission (ILC), Draft Articles on Diplomatic Protection, 2006 (A/61/10), Article 1 : “For the purposes of the present draft articles, diplomatic protection consists of the invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility.” Available at : http ://legal.un.org/ilc/texts/9_8.shtml. 321  This does not exclude that (purely) private disputes are espoused by a State in order to make an international claim. Example : ICJ, Case concerning the Application of the Convention Dated 12 June 1902 governing the Guardianship of Infants (Netherlands v. Sweden), ICJ Reports 1958, 55 (Boll case). 322  In the context of State responsibility, the ILC has expressly stated that the distinction between acta jure gestionis/ imperii does not play any role. ILC, Draft Article 4 on State Responsibility (2002), Crawford, “Treaty and Contract in Investment Arbitration”, Arb. Int’l 24 (2008), 351, 357 (with further references). 320

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reality asserting its own rights – its right to ensure, in the person of its subjects, respect for the rules of international law.” 323 85.  Obviously, this approach was influenced by the strict separation of domestic and international law and by the lack of any legal subjectivity accorded to individuals in international law in the 1920s 324. Nevertheless, the ICJ took up this approach again in the Barcelona Traction case (1970) 325. Although at present the legal situation of the individual in international law has undergone changes, in 2006 the International Law Commission stated that, despite recent developments, diplomatic protection still plays a considerable role (at least as a fall-back rule) in the protection of the individual at the international level ; and last but not least, in international trade law 326. 86.  Until today, international customary law conceives diplomatic protection as a right of the State, not of the  PCIJ, Mavrommatis Palestine Concessions, Judgment No. 2, PCIJ Rep., Ser. A, No. 2 (1924), 12 ; more recently ICJ, 24/5/2007, Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Preliminary Objections, ICJ Reports 2007, para. 86. 324  This legal position was formulated by de Vattel, Le droit des gens (1758), Livre II, Chap. VI, para. 71 (p. 132) in fine : “Quiconque maltraite un Citoyen offense indirectement l’Etat, qui doit protéger ce Citoyen. Le Souverain de celuici doit venger son injure, obliger, s’il le peut, l’aggresseur à une entière réparation, ou le punir ; puisqu’autrement le Citoyen n’obtiendroit point la grande fin de l’association Civile, qui est la sûreté.” 325  ICJ, 5/2/1970, Barcelona Traction, Light and Power Co. Ltd. (Belgium v. Spain), ICJ Reports 1970, para. 44. It should be noted that Barcelona Traction was decided almost 50 years ago. 326   Dugard, “Diplomatic Protection”, in Wolfrum (ed.), MPEPIL (2009), para. 10.

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individual 327. As a consequence, the empowerment of the State under international law appears to be unlimited : the State may pursue a claim even against the will of the individual concerned and dispose of it ; the claim may remain unpursued, be set off or simply be abandoned 328. Furthermore, international law does not require the State to transfer or to pay out compensation obtained at the international level to the aggrieved individual 329. This far-reaching (discretionary) empowerment of the State was largely used for the settlement of war (related) claims in the peace treaties after World War I and World War II 330. 87. From a modern (constitutional) point of view, this rigid concept appears outdated. Today, constitutional municipal law may provide for a different – more balanced – concept. In its 2006 Draft Articles on Diplomatic Protection, the ILC ultimately endorsed Article 19, entitled “Recommended Practice”, which suggests that a State, when exercising diplomatic protection, should adopt the following “best practices” : (it should) give due consideration to the possibility of exercising diplomatic protection when a significant injury has occurred ; (it should) take into account the views of the injured person  ICJ, 5/2/1970, Barcelona Traction, Light and Power Co. Ltd. (Belgium v. Spain), ICJ Reports 1970, 44, paras. 7779. However, the ILC recently stated a different position : “a State does not ‘in reality’ – to quote Mavrommatis – assert its own right only. ‘In reality’ it also asserts the right of its injured national.” ILC, Draft Articles on Diplomatic Protection with Commentaries (2006), p. 25, available at : http ://www.refworld.org/pdfid/525e7929d.pdf. 328  ICJ, 5/2/1970, Barcelona Traction, Light and Power Co. Ltd. (Belgium v. Spain), ICJ Reports 1970, 44, paras. 78 et seq. Lump sum agreements are often agreed in peace treaties. 329  House of Lords, 19/11/1931, Civil War Claimants Association Ltd. v. The King, [1932] AC 14 (HL). 330   Hess, BerDGVR 40 (2003), pp. 107, 136 et seq. It is still used today, see infra at para. 104. 327

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when exercising diplomatic protection, and (it should) transfer . . . any compensation obtained to the individual victim 331. Although Article 19 of the ILC Draft Articles is not framed to reflect binding customary international law, it nevertheless indicates that the present state of affairs has become a sensitive issue and may require adjustments – for obvious reasons 332. Thus, it is to be expected that the purely discretionary character of the entitlement of the State vis-à-vis its citizens will be replaced by a more balanced approach in the near future 333. 88. A recurring issue pertains to the relationship of diplomatic protection and domestic litigation in municipal courts. As international claims are separated from individual claims and are adjudicated and enforced separately at the international level, private parties have occasionally attempted to pursue their claims in municipal courts, independently from international proceedings : in Dallal v. Bank Mellat, a US national brought a claim in the English courts although the claim had already been dismissed by the Iran-United States Claims Tribunal 334. The High Court of London and the Court of Appeal did not allow the action and dismissed it as an abuse of process 335. However, the arguments endorsed by the courts demonstrated that the dismissal was, in its substance, based on considerations of res  ILC, Draft Articles on Diplomatic Protection with Commentaries (supra at footnote 320), pp. 29-30. 332   Rightly highlighted by Parlett, The Individual (2011), p. 90. 333  In Beaumartin v. France, the ECtHR held that the distribution proceedings regarding compensation obtained by France from Morocco were “civil rights” covered by Article 6, ECHR, ECtHR, 24/11/1994, [1994] ECHR Report 40. 334   Infra at paras. 95 et seq. 335   Dallal v. Bank Mellat [1986] 1 QB 441. 331

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judicata 336. Similar arguments were endorsed by other courts in comparable circumstances 337. 2. Mixed Claims Commissions and Tribunals between 1918 and 1953 89.  The peace treaties concluded after World War I 338 provided for large-scale dispute settlement systems in order to address and to resolve the consequences of economic warfare 339. Under these treaties, 36 so-called Mixed Arbitral Tribunals (MATs) 340 were established : these tribunals had jurisdiction over claims relating to commercial contracts, other private debts, damage to property, rights and interests affected by war measures, as well as over claims relating to licences for intellectual   Parlett, The Individual (2011), pp. 100 et seq. An additional problem arose out of the bilateral nature of the Algiers Declarations (infra at footnote 362) which was not binding on the United Kingdom since it was not a signatory party. 337   Hess, Staatenimmunität bei Distanzdelikten (1992), pp. 354 et seq. ; see infra at paras. 254 et seq. 338  The regulatory framework included the following treaties: the Versailles Peace Treaty dated 28/6/1919 (with Germany); the Treaty of St.-Germain of 16/7/1920 (with Austria), the Treaty of Trianon of 26/6/1921 (with Hungary), the Treaty of Neuilly of 9/8/1920 (with Bulgaria) and the Treaty of Sèvres with Turkey (which was superseded by the Treaty of Lausanne of 24/7/1923). 339  It must be noted that World War I was the first war where comprehensive economic sanctions against the “property of enemies” had been enforced by all belligerent States, Dominicé, La notion du caractère ennemi des biens privés dans la guerre sur terre (1961), pp. 13 et seq. 340  Dolzer, “Mixed Claims Commissions”, in Wolfrum (ed.), MPEPIL (2011) ; Requejo Isidro, “Un épisode de l’histoire du droit international privé. Les tribunaux arbitraux mixtes”, in Mélanges Ancel (forthcoming, in 2018 – on file with the author) ; Schätzel, “Die Gemischten Schiedsgerichte der Friedensverträge”, Jahrbuch öffentliches Recht (1930), pp. 378 et seq. 336

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property rights and prejudice suffered as a result of court decisions which had applied national laws against enemies 341. However, the tribunals were only competent to settle disputes which arose out of measures taken by Germany (and its former allies) against enemy property (Article 297 (a) and (e) of the Versailles Peace Treaty) 342. The property of German nationals located within the territory of the Allied Powers had been seized as “enemy property” during the war and was liquidated after the war (Article 297 (b) of the Versailles Peace Treaty) 343. Nevertheless, German nationals who had been expropriated in Upper Silesia after 1921 could challenge the compensation fixed by Polish authorities before the German-Polish MAT, Article 297 (h) of the Versailles Peace Treaty 344. The number of individual cases handled by the MATs was impressive : the MATs set up by Germany and the Allied and Associated Powers processed about 70,000 cases 345 ; the MATs set up by Austria and the Allied Powers, 2,845 cases; those of Hungary and the Allied Powers about 5,000 cases, and the MATs set up by Bulgaria

 Articles 296 et seq. of the Versailles Peace Treaty, Lipstein, Transactions of the Grotius Society (1941), pp. 142175. 342  The main reason for the establishment of the MATs was the distrust of the Allied Nations with regard to impartiality of the civil courts in the defeated States, cf. Blühdorn, “Le fonctionnement et la jurisprudence des tribunaux arbitraux mixtes crées par les traités de Paris”, Recueil des cours 41 (1932), pp. 141 et seq. 343  Dominicé, La notion du caractère ennemi (1961), pp. 144 et seq. 344  Schätzel, “Die Gemischten Schiedsgerichte der Friedensverträge”, Jahrbuch öffentliches Recht (1930), pp. 378, 383-384. 345  Most of the cases were decided by the French-German (about 25,000) and by the German-Polish MAT (more than 20,000). 341

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and the Allied Powers about 1,000 cases 346. In practice, most individual cases were settled by intervention of State agents 347. 90. The reparation of (direct) war damages was addressed differently  : Article 231 of the Versailles Treaty obliged Germany to pay reparations for all war damages 348. Here, the procedural framework was organized in a double layer, i.e. at the domestic and at the international level : in Belgium and France, specialized administrative authorities assessed and compiled the losses suffered by individuals 349 ; specialized “tribunaux de guerre” decided the objections made against these assessments 350. At the international level, the reparation claims (composed of direct losses suffered by the State and indirect losses suffered by its citizens) were assessed by a Reparation Commission 351. The reparation regime was based on the empowerment of States under public international law to dispose of espoused claims of   Schätzel, “Die Gemischten Schiedsgerichte der Friedensverträge”, Jahrbuch öffentliches Recht (1930), pp. 378, 449 et seq. 347  On the role of State agents cf. Blühdorn, Recueil des cours 41 (1932), pp. 141, 174 et seq. ; infra at para. 91. 348  These damages were, from the outset, clearly separated from the individual claims arising out of the economic war. From the German perspective, this article was one of the most contested rules of the Versailles Treaty, D’Argent, Les réparations de guerre (2002), pp. 82 et seq. 349  D’Argent, Les réparations de guerre (2002), pp. 47 et seq. The Belgian law on the reparation of war damages (as of 23/10/1918) clearly stated in Article 1 : “– Le droit à la réparation, par la nation, des dommages résultant des faits de la guerre, en Belgique, est reconnu aux Belges.” 350  It must be recalled that the war took place mainly on Belgian and French soil and that these States suffered most of the damages caused by warfare. 351  On 21 May 1921 the Allied Powers presented to the German delegation a sum which was not negotiable and, rather, had to be accepted. The amount claimed was never fully paid by Germany, Waibel, Sovereign Defaults (2011), pp. 75 et seq.

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their nationals. This power was used in order to reach global settlements of the reparation claims. At the domestic level, individual compensation was paid out through municipal procedures of social law which were eventually completely disconnected from the reparations 352 paid at the international level  . Consequently, the individuals in the municipal proceedings were not entitled to request the payment of the sums paid at the international level to their home State 353. Conversely, the dispute settlement mechanism of the German-American Treaty of 22 August 1922 was different. This treaty set up so-called Mixed Commissions where individual claims of US nationals were solely brought by a State agent: these commissions operated on the traditional basis of diplomatic protection 354. The German-US Mixed Commission handled almost 20,000 cases, including reparation claims 355. 91. The Mixed Arbitral Tribunals (supra para. 89) were established by Article 304 of the Versailles Peace Treaty 356. Being part of the framework of the peace treaties, these tribunals applied rules of substantive law provided  D’Argent, Les réparations de guerre (2002), pp. 53 et seq. ; Depoortere, “L’évaluation des dommages subis par l’industrie belge au cours de la première guerre mondiale”, Rev. belg. de philologie et d’histoire 67 (1989), pp. 748, 760 et seq. 353  House of Lords, 19/11/1931, Civil War Claimants Association Ltd. v. The King, [1932] AC 14 (HL). 354  Burchard, “The Mixed Claims Commission and German Property in the United States of America”, Am. J. Int’l L. (1927), 472 et seq. ; Parlett, The Individual (2011), p. 74. 355   The Mixed Commission under the American-German Treaty of 10 August 1922 decided altogether 20,434 claims which were submitted to it. US Department of State (ed.), Annotations to the Versailles Treaty (1945), pp. 629 et seq. 356   Similar provisions contained Article 256, Treaty of St.-Germain, Article 239, Treaty of Trianon, Article 188, Treaty of Neuilly. Requejo Isidro, in Mélanges Ancel (2018), supra at footnote 340, passim. 352

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by the Versailles Treaty which, as a general underlying principle, favoured nationals of the Allied Nations and discriminated nationals of the defeated States. However, the situation in the proceedings was different 357. Here, individuals had their own legal standing and were generally treated equally 358. Against this background, several Mixed Arbitral Tribunals held that Article 297 of the Versailles Treaty explicitly conferred subjective rights upon the individual debtors 359. As a systematic result, the legal standing of the individual before the international tribunals was derived from the wording of the respective articles of the Versailles Peace Treaty 360. These provisions were considered as a deviation from public international law and the case law of the MAT with regard to the legal nature of the claims remained contradictory 361. At any rate, in 1932 the so-called Young plan terminated the system of the MAT and the States simply waived the individual rights of their nationals in a comprehensive international settlement. The termination of the MAT clearly demonstrated that the claims of the individuals were dependent on the (non-)intervention of their home States.   The discrimination parties of the Central Powers were facing related to the language of the proceedings (being the language of the Allied party) and the place of the proceedings (Paris, London and Rome). 358  Often, they were supported by the State agents of their home State who frequently negotiated large-scale settlements. 359   Sigwald Charles c. Allemagne, French-German MAT, 27/8/1926, Recueil des Décisions TAM VI 888, 890-891 ; Lederer v. Germany, Anglo-German MAT, Recueil des Décisions TAM II (1924), 762, 768 ; Morgenstern et al. c. Etat allemand, German-Polish MAT, 12/1/1926, Recueil des Décisions TAM VII (1927-1928), p. 722. 360  Especially Article 297 (e) Versailles Peace Treaty, cf. Blühdorn, Recueil des cours 41 (1932), pp. 141, 174 et seq. 361  Parlett, The Individual (2011), p. 73 ; Requejo Isidro, in Mélanges Ancel (2018), supra at footnote 340, at footnotes 7 et seq. 357

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92. From the perspective of the private-public divide, the peace treaties after World War I followed the underlying distinction. However, there were differences as losses arising out of acts of direct warfare were compensated by means of reparations. Private law relationships and property affected by measures of the economic war 362 were addressed by the mixed arbitral tribunals and – on choice of the Allied creditors – by domestic courts 363. However, the MATs did not only hear claims of a private nature – they were also competent to decide about compensation for acts of economic warfare and expropriation 364. In the 1920s and 1930s, the work of the MATs was not highly appreciated. The legal doctrine deplored the inconsistent case law. In addition, German, Italian and Polish authors complained about the partiality of the courts and unbalanced outcomes of the disputes 365. From a contemporary perspective, this critique does appear entirely convincing : the MATs operated in a difficult political environment and they were bound by the often unbalanced provisions of the peace treaties. Their contradictory case law was mainly caused by the fragmented organization of the MATs – there was no .

 These measures mainly concerned property rights of the nationals of enemy States, Dominicé, La notion du caractère ennemi des biens privés (1961), pp. 40 et seq. 363  This distinction was not made with regard to the losses of American citizens which were all assessed and compensated by the American-German Mixed Commission, including the destruction of the passenger ship Lusitania. 364   From a modern point of view, one might consider the MATs as (untechnical) investment courts as they heard disputes about the rights and interests of Allied investors in the Central States which had been affected by acts of (economic) warfare during World War I. 365  For a more balanced assessment cf. Blühdorn, Recueil des cours 41 (1932), pp. 141, 189 et seq. ; Niboyet, Recueil des cours 40 (1932), pp. 153, 221 et seq. 362

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appellate court aimed at providing for consistency and uniformity of the case law 366. 93. After World War II, most of the peace treaties followed the traditional pattern of diplomatic protection 367 : economic losses of individuals which had not been directly caused by military operations were settled by conciliation commissions where State agents presented claims of their nationals. Arbitral tribunals competent to address individual claims were not established. Direct war damages 368 were settled in specific clauses of the peace treaties. In particular, the former allies of Germany had to renounce all claims (including the individual claims of their nationals) against Germany 369. Italian 370 and German 371 courts held that these articles were selfexecuting and had extinguished the individual claims entirely. This case law was taken up again and confirmed after German unification (1989) 372. 3.  Modern dispute settlement 94. To date, diplomatic protection is being used in the international relations between States for the settle A similar situation is found today in investment arbitration, see infra at para. 120. 367  Hess, BerDGVR 40 (2003), pp. 107, 136 et seq. 368  Damages arising directly out of military warfare operations, D’Argent, Les réparations de guerre (2002), pp. 47 et seq. 369  Example  : Articles 77 and 80 of the Peace Treaty with Italy of 10 February 1947, D’Argent, Les réparations de guerre (2002), pp. 263 et seq. 370  Corte di Cassazione, 22/2/1953, Riv. dir. int. (1953), 453. 371  Bundesgerichtshof, 14/12/1955, ILR 22, 611, cf. Hess, BerDGVR 40 (2003), pp. 107, 136 et seq. 372  Hess, BerDGVR 40 (2003), pp. 107, 142 et seq. In August 2017, the Polish Government challenged the validity of the renunciation of Polish reparation claims in 1953. The German Government firmly opposed any additional reparation, Frankfurter Allgemeine Zeitung, 11 September 2017, http://www.faz.net/aktuell/politik/polens-argumentationdeutschlands-haltung-gegenueber-dem-gutachten-dessejm-15193897.html. 366

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373 ment of disputes involving individuals  . However, the practical application of diplomatic protection has changed to some extent : on the one hand, individuals are more and more often empowered to bring their claims in international instances – the most pertinent (and cited) examples in this respect are investment 374 arbitration and human rights courts  . These new avenues of dispute resolution have shifted the practical focus of diplomatic protection from dispute settlement to other occurrences where individuals are in need of protection of their home States – a pertinent example in this respect is the consular support to nationals in criminal proceedings abroad 375. Nevertheless, in many instances to date individual claims are espoused by the States for dispute settlement by international courts or tribunals 376.

(a)  The Iran-United States Claims Tribunal 95.  The most prominent modern institution in this area of the law is the Iran-United States Claims Tribunal 377 established by the Algiers Declarations of 19 January  Article 1 of the ILC, Draft Articles on Diplomatic Protection with Commentaries (2006). 374  See infra at paras. 108 et seq. 375  Cf. Article 36 (1) of the Vienna Convention on Consular Relations. Examples  : ICJ, 27/6/2001, LaGrand (Germany v. United States), ICJ Reports 2001, pp. 466, 481 ; ICJ, 31/3/004, Avena and Other Mexican Nationals (Mexico v. United States of America), ICJ Reports 2004, pp. 12, 46. 376  Example : ICJ, 30/11/2010, Ahmadou Sadio Diallo (Republic of Guinea v. The Democratic Republic of the Congo), Merits, ICJ Reports 2010, p. 639. Recently, the litigation surrounding the Argentine debts was brought before the ICJ when Argentina sued the United States because of the permissive case law of American courts regarding hedge funds. The US Government declined to appear at the ICJ, see Muir Watt, Rev. crit. (2015), 332, 346. 377  Website  : www.iusct.net. 373

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1981 in the wake of the Tehran Hostage crisis 378. Located in The Hague 379, the Tribunal proceeds according to the UNCITRAL Arbitration Rules, albeit partly amended 380. It has jurisdiction to hear claims of nationals of Iran against the United States and of US nationals against Iran 381. The nationals themselves could bring their claims directly against the other Government ; nevertheless, claims amounting to less than 250,000 US dollars were presented by agents of the respective Governments 382.  Claims settlement, Declaration of the Government of Algeria concerning the settlement of claims by the Government of the United States of America and the Government of the Islamic Republic of Iran of 19 January 1981, at Pinto and McAsey, “Iran-United States Claims Tribunal”, in Wolfrum (ed.), MPEPIL (2013), paras. 5 et seq. ; Reed, “Mixed Private and Public International Law Solutions to International Crises”, Recueil des cours 306 (2003), 181, 241 et seq. 379  The PCA acts as the Appointing Authority : the Tribunal consists of nine arbitrators, two-thirds of which are appointed by the respective Governments ; the remaining third shall be appointed by neutral agreement of the arbitrators, otherwise by the Secretary General of the PCA. 380  Tribunal Rules of Procedure as of 3 May 1983 at http :// www.iusct.net/General%20Documents/5-TRIBUNAL %20RULES%20OF%20PROCEDURE.pdf. 381  See Alter, The New Terrain of International Law, p. 184 : “Governments and private parties submitted 3,861 claims ranging from individuals who left behind their cars and fridges to the seizing of drilling rigs, the nationalization of companies and the cancelation of military contracts.” 382  Article III (3) of the Claims Settlement Declaration. The small claims were selected for priority treatment and a kind of (untechnical) pilot procedure was applied. When several hundreds of these cases had been settled, the Governments reached a lump sum agreement where 2,316 remaining cases were disposed of ; the settlement ended in an Award on Agreed Terms issued by the Tribunal, United States v. Iran, Iran-US CTR 25 (1990), 327 ; Pinto and McAsey, “IranUnited States Claims Tribunal”, in Wolfrum (ed.), MPEPIL (2013), para. 48. 378

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The jurisdiction of the Tribunal is limited to claims which arose prior to the date of the Algiers Declarations (19/1/1981) and to claims filed by 19/1/1982 383. Ratione materiae, the Tribunal hears claims of nationals that “ ‘arise out of debts, contracts (including transactions which are the subject of letters of credit or bank guarantees), expropriation or other measures affecting property rights’ as well as to ‘any counterclaim which arises out of the same contract, transaction or occurrence that constitutes the subject matter of that national’s claim’  ” 384. In addition, the Tribunal has jurisdiction over official claims of the United States and Iran against each other arising out of contractual arrangements between them for the purchase and sale of goods and services 385. As of today, most claims have been decided, with the exception of some large State-to-State claims 386. 96. The heterogeneity of disputes submitted to the Tribunal is mirrored by the provision on the law applicable to the disputes. According to Article V of the Claims Settlement Declaration, “the Tribunal shall decide all cases on the basis of respect for law, applying such choice of law rules and principles of commercial and international law  Approximately 2,800 claims in the amount of less than 250,000 US dollars were filed and approximately 1,000 claims in the amount of more than 250,000 US dollars. This time limit does not apply to lawsuits brought by the Governments for the interpretation of the Algiers Declarations, Article II (3) of the Claims Settlement Declaration of 19/1/1981. 384   Article II (1) of the Claims Settlement Declaration of 19/1/1981. 385   Article II (2) of the Claims Settlement Declaration of 19/1/1981. 386  Statistics are available at the Communiqué of 9/5/2016 of the registrar, www.iusct.net. 383

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as the Tribunal determines to be applicable, taking into account relevant usages of the trade, contract provisions and changed circumstances”. The Tribunal applies this complicated choice of law clause cautiously, by looking primarily at the clauses of the contract under consideration. Instead of applying the Iranian or US conflict of law rules 387, the Tribunal usually applies general principles of law and the lex mercatoria (albeit without expressly mentioning it) 388. This mirrors the general reluctance of international tribunals to clearly apply (domestic) conflict of law provisions in public international law disputes 389. However, when the Tribunal had to decide on expropriations and on administrative decisions against foreigners, it applied public international law 390.  In this respect, the situation was more complicated as the United States does not provide for any Federal conflict of law rules. Some judgments, however, applied Iranian law (22/11/1985, Award No. 201-174-1, Housing and Urban Services International, Inc. v. Government of the Islamic Republic of Iran, 9 Iran-US CTR, 313 : architect’s agreement was governed by Iranian law ; 13/7/1984, Award No. 135-33-1, Sea-Land Services v. The Islamic Republic of Iran, 6 Iran-US CTR, 149 : contract concerning land in Iran), Wautelet, “International Public Contracts : Applicable Law and Dispute Resolution”, in Audit and Schill (ed.), Transnational Law of Public Contracts (2016), pp. 259, 181 et seq. 388   Reed, Recueil des cours 306 (2003), 181, 275 et seq. ; Lipstein, in 75 Jahre Max-Planck-Institut für Privatrecht (2001), pp. 713, 715 ; van Houtte, “International Tribunals and Conflicts of Laws, Recent Examples”, Liber amicorum Nadine Watté (2017), pp. 517, 526 et seq. 389   As stated by Mann, “The Protection of Shareholders’ Interests in the Light of the Barcelona Traction Case”, AJIL 67 (1973), 259, 260 et seq. ; Reed, Recueil des cours 306 (2003), 181, 276 et seq. 390   Brower and Brueschke, The Iran-United States Claims Tribunal (1998), pp. 634 et seq. (with further references). 387

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97.  From the perspective of the private-public divide, it is not easy to characterize the Iran-United States Claims Tribunal as a public or, rather, as a private claims resolution body 391. Of course, the Tribunal was initially set up by an international agreement in order to resolve the economic consequences of a profound political crisis between sovereign States 392. However, the subject matters of the disputes submitted to the Tribunal often arose from private law contracts (on sales and services) although these contracts had often been concluded with (or even between) State entities. All transactions had been affected by the political consequences of the Iranian revolution, and most of them were terminated by the political incidents 393. Against this background, it is not surprising that the Tribunal rejected the suggestion that it was acting as an international judicial body deferring claims of diplomatic protection 394. Moreover, the Tribunal clearly held that the (private) parties were pursuing their own (individual) rights and that the Tribunal was a new forum substituting (traditional) diplomatic protection 395.   Reed, Recueil des cours 306 (2003), 181, 272 et seq.   Caron and Crook, The Iran-United States Claims Tribunal and the Process of International Claims Resolution (2000), pp. 364 et seq. 393   Brower and Brueschke, The Iran-United States Claims Tribunal (1998), pp. 636 et seq. (on commercial claims decided by the Tribunal). 394   Parlett, The Individual (2010), p. 99. Esphahanian v. Bank Tejarat, Case No. 157, Award No. 31-157-2 (1983-I), 2 Iran-US CT Rep. 157, 165 ; Case No. A/18 (1984-I), 5 IranUS CT Rep. 251, 261-262. See also Case No. A/18 (1984I), 5 Iran-US CT Rep. 251, Concurring Opinion of Willem Riphagen ; Case No. A/21 ; Islamic Republic of Iran v. United States, A/21 (1987-I), 14 Iran-US CT Rep. 324, 330 ; Islamic Republic of Iran v. United States, A/15 (IV) and A/24, Award No. 590-A15(IV)/A24-FT (1998), 34 Iran-US CT Rep. 105, 148. 395  Case No. A/18 (1984 I), 5 Iran-US CT Rep. 251, 261-262, Brower and Brueschke, The Iran-United States Claims Tribunal (1998), pp. 15 et seq. Iranian parties could enforce 391 392

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98.  Nevertheless, one might doubt whether this characterization is correct : if one looks at the transfer of the individual cases (most of which were pending in US courts in 1980), it becomes clear that the two Governments clearly used their prerogative powers to transfer the pending individual lawsuits to the international dispute settlement mechanism. Articles I and II of the Claims Settlement Declaration of 19/1/1981 was the legal basis for the transfer of pending and outstanding claims 396. In Dames & Moore v. Regan, the US Supreme Court was asked about the constitutionality of the transfer but it held that the transfer of individual (domestic) lawsuits pending in US courts to the international Tribunal was part of the Presidential power to conduct foreign affairs 397. Therefore, hundreds of lawsuits which had been pending in US courts since 1979 were subsequently transferred to the Tribunal 398. The transfer did not include disputes where the parties had agreed exclusively the jurisdiction of an Iranian court 399. Overall, the Tribunal is based on principles of dispute settlement under public 400 international law  . However, these principles have undergone a further development in that the individual the awards of the Tribunal under the NYC, Ministry of Defence of Iran v. Gould, Inc., 887 F. 2d 1357 (9th Cir. 1989) ; Crawford, Arb. Int’l 24 (2008), 351, 361. 396   Shany, Regulating Jurisdictional Relations (2007), p. 151. 397   Dames & Moore v. Regan, 453 US 654 (1981). 398   Hess, Staatenimmunität bei Distanzdelikten (1992), pp. 354 et seq. ; Brower and Brueschke, The Iran-United States Claims Tribunal (1998), pp. 14 et seq. 399   This exception was contained in Article II of the Joint Declaration, but the Iran-US Tribunal adopted a narrow reading of exclusive jurisidiction clauses, Brower and Brueschke, The Iran-United States Claims Tribunal (1998), pp. 60-72. 400  Yet, the private (and commercial) nature of the underlying (affected) transactions remained undisputed, see supra at para. 88 on parallel litigation in English courts.

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claimants were granted legal standing in the settlement of their individual (often commercial) cases. (b)  The United Nations Compensation Commission 99. Another international claims facility to be mentioned in this framework was the United Nations Compensation Commission (UNCC), which operated as a subsidiary organ of the UN Security Council 401. The UNCC was active primarily between 1991 and 2005, and it reviewed and processed claims for compensation for losses and damage suffered as a direct result of Iraq’s unlawful invasion and occupation of Kuwait in 19901991 402. About 2.7 million claims, with an estimated value of 352.5 billion US dollars, were filed with the Commission. 19 panels composed of 57 Commissioners reviewed and evaluated individual claims which were submitted by more than 90 Governments and by international organizations (acting for stateless persons and refugees). The submission of the claims via States and international organizations was a practicability dictated by the large amount of individual claims 403 – individuals had to formally consent to the claim being  http ://www.uncc.ch/home. Statistical information is drawn from this website, visited on 20 May 2017, cf. van Houtte, Das and Delmartino, “The United Nations Compensation Commission”, in de Greiff (ed.), The Handbook of Reparations (2006), pp. 321 et seq. 402  By resolution 674/1991 the UN Security Council stated that Iraq was responsible under international for any loss arising out of the occupation of Kuwait. Resolution 687 (1991) established a fund (paid by oil revenues of Iraq) and the UNCC to administer the funds and to pay compensation, Hess, BerDGVR 40 (2003), pp. 107, 153 et seq. 403  Most individual claims were filed by Governments for their nationals and residents in their territory. Stateless persons were represented by the United Nations Development Programme and by the UN High Commissioner for Refugees. Claims of Iraq and of Iraqi nationals were not considered. 401

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brought to the UNCC 404. The presentation of the claims by Governments and international organizations did not alter the fact that the claims were those of the individuals and corporations concerned 405. The claims were assessed by mass claim processing techniques. The panels reported recommendations to the Governing Council for approval. Approved reports entailed payments, which were made to the Governments. The payment of the compensation to the individual applicants was made by the Governments but controlled by the UNCC 406. 100. The UNCC was not an international tribunal and, rather, it operated as an administrative mass claim processing programme. The individual claims were classified in different categories 407 and submitted to expedite procedures. As a matter of principle, individual losses suffered by persons who had been forced to leave Kuwait after the invasion and serious personal injuries and/or deaths of an immediate family member were compensated first (categories A and B). Individual economic losses amounting up to 100,000 US dollars were equally given a priority. In this case, the compensation was based on standardized evaluations and schemes. Losses suffered by corporations, other private legal entities and public enterprises (category E) were compensated on the basis of a more individual assessment. These claims ranged  This consent qualified as a waiver of individual lawsuits against Iraq or against Iraqi nationals. 405   van Houtte, Das and Delmartino, in de Greiff (ed.), The Handbook of Reparations (2006), pp. 321, 333-334  ; Alzamora, “Reflections on the UNCC”, in Lillich (ed.), The United Nations Compensation Commission (1995), p. 351. Different opinion : Parlett, The Individual, p. 102 (claims were made on the basis of diplomatic protection). 406   As of May 2017, the Commission had paid out about 47.8 billion US dollars in compensation awards to successful claimants. 407  Ranking from A to E. The different categories of claims are documented at : http ://www.uncc.ch/claims. 404

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from asserted losses of a few thousand US dollars to losses of several billion US dollars 408. 101.  From the private-public perspective, the damages arising out of the invasion of Kuwait must be categorized as “public” – they arose out of acts of warfare and atrocities committed by Iraqi military and other State agents. Iraq’s responsibility for these acts was (ultimately) not disputed 409 and, to the contrary, it was clearly stated in several resolutions of the UN Security Council 410. Consequently, the Commissioners based their decisions primarily on these resolutions and only occasionally on general international law. Their task was not to establish Iraq’s international responsibility but – similar to a factfinding commission – to assess the individual damages sustained 411. 102.  For individual victims, it was not easy to bring parallel claims against Iraq in domestic fora as these claims were usually barred by State immunity. However, resolution 687 (1991) did not confer exclusive jurisdiction to the UNCC and there was an ongoing concern of the UNCC to avoid double payments. Creditors tried to seize Iraqi assets which had been frozen in third States as a consequence of the embargo imposed by the Security Council against Iraq after the invasion of Kuwait. In the end, almost all claims were processed by the UNCC. 103. Parallel proceedings took place in England when the Kuwait Airlines Corporation (KAC) tried to recover several aircraft which had been seized by Iraq   van Houtte, Das and Delmartino, in de Greiff (ed.), The Handbook of Reparations (2006), pp. 321, 335-338. 409  In a letter of 6 April 1991, Iraq’s Government accepted its international responsibility, D’Argent, Les réparations de guerre (2002), p. 345. 410  Article 8 of SC Resolution 674 (1991) and SC Resolution 687 (1991), D’Argent, Les réparations de guerre (2002), pp. 333 et seq. 411   Reed, Recueil des cours 306 (2003), 181 et seq. 408

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after the invasion of Kuwait and had been flown to Iraq where ownership had been transferred to Iraq Airlines Co. (IAC) by an Iraqi decree. During the Iraq war, four aircraft were destroyed by allied bombing, but six aircraft were evacuated by IAC to Iran. In 1991, KAC brought a lawsuit in tort for 800 million US dollars against IAC in London 412. Eventually, the House of Lords decided the case on the basis of English private international law 413 under the so-called double actionability rule  . As Iraqi law applied to the “transfer of ownership” of the aircraft from KAC to IAC by confiscation, the Iraqi defendant argued that the act of State doctrine excluded any review of the Iraqi decree. The House of Lords rejected the argument. It held that the act of State doctrine was not applicable since English public policy did not allow the application of a foreign law which amounted to a gross violation of established rules of international law of fundamental importance 414. In this respect, the Lords referred to the resolutions of the UN Security Council 415. As a result, the House of Lords held that IAC was not responsible for the destruction of the four aircraft which occurred as a result  The jurisdiction of the English courts was based on service out of jurisdiction, but the lawsuit was served at the IAC office in London. In the first instance, IAC raised a forum non conveniens defence contending that the UNCC was the more appropriate forum. This argument was rejected by Evans J, and this decision was not appealed, see Kuwait Airways Corporation v. Iraqi Airways Company and Others [2002] UKHL 19, paras. 5-11 (Lord Nicholls). 413  According to this rule of former English private international law, tortious acts committed abroad must qualify as a tort both under the law of the place where the tort was made and under English law. 414  A similar argument was developed in Rahmatullah (2) v. Ministry of Defence [2017] UKSC 1, supra at footnotes 160 et seq. 415   Kuwait Airways Corporation v. Iraqi Airways Company and Others [2002] UKHL 19, paras. 28 and 29 (Lord Nicholls), para. 149 (Lord Hope), para. 114 (Lord Steyn). 412

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of allied bombing. As for the remaining “Iranian six”, IAC was ordered to pay compensation for their use and their “parking fees” during the operation 416. (c)  The re-emergence of mixed commissions in international practice 104. Over the last 25 years, the international practice related to mixed claims commissions has evolved considerably. On the one hand, the number of commissions has increased 417 : mixed commissions were also established for the restitution of property in Bosnia and Herzegovina 418 and in Kosovo 419. In these commissions, which operated in Kosovo, individuals were granted a genuine legal standing to pursue their claims. The situation was different with regard to the Eritrea420 Ethiopia Claims Commission of December 2000  . This commission operated from 2001 until 2009 under   Hess, BerDGVR 40 (2003), pp. 107, 110 et seq. Notably, these damages were not recoverable losses under the UNCC compensation schemes. Eventually, Kuwait Airways successfully sought recognition and enforcement of the cost order regarding the English proceedings in Canada, Kuwait Airways Corporation v. Republic of Iraq [2010] SCC 40. 417  Cf. Dolzer, “Mixed Claims Commissions”, in Wolfrum (ed.), MPEPIL (2011), para. 8 : “in recent times, the institution has seen an outstanding resurgence on the international plane”. 418  Bosnia and Herzegovina Commission for Real Property Claims of Displaced Persons and Refugees. The Commission was set up by the Dayton Peace Agreement (1995) and handled more than 310,000 claims on restitution (often between individuals) ; Hess, BerDGVR 40 (2003), pp. 107, 159 et seq. 419  This Commission was established by the United Nations. 420   The Commission was established by Article 5 of the Agreement between the Government of the State of Eritrea and the Government of the Federal Democratic Republic of Ethiopia for the Resettlement of Displaced Persons, as well as Rehabilitation and Peacebuilding in both Countries (Organization of African Unity), 2138 UNTS 93. 416

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the auspices of the Permanent Court of Arbitration as a purely inter-State commission 421. Accordingly, individual claims needed to be espoused by the respective States in order to be brought before the international forum. With regard to the substantive claims, it must be noted that the commission was primarily dealing with the assessment of war damages. 105. Finally, the compensation funds for former German and Austrian forced and slave labourers (during World War II) deserve to be mentioned here. The establishment of these funds was triggered by a wave of class action lawsuits brought in the United States against companies which had been involved in forced and slave labour during World War II 422. The funds were established by national legislation in Germany 423 and Austria and sided by a parallel agreement of the American and German Governments (Agreement concerning the Foundation “Remembrance, Responsibility and Future”) of 17/7/2000 424 and by another Agreement between the American and Austrian Government of 24/10/2000 425. The establishment of these compensation funds (foundations) ended the so-called holocaust litigation against German and Austrian corporate defendants  The Commission was tasked with issues of State responsibility and reparations for individuals arising out of the war between Ethiopia and Eritrea. Klein, “Eritrea-Ethiopia Claims Commission”, in Wolfrum (ed.), MPEPIL (2013), paras. 8 et seq. ; van Houtte, Liber amicorum Nadine Watté (2017), pp. 517, 526 et seq. 422  For an overview see : Faust, “Holocaust Litigation in U.S. Courts Involving Sovereign Entities”, ELTE Law J. (2015), 65, 70 et seq. ; Hess, BerDGVR 40 (2003), pp. 107, 130 et seq. 423  Law on the Creation of a Foundation “Remembrance, Responsibility and Future” of 2 August 2000, Federal Law Gazette I 1263. 424  39 ILM 1298 (2000). 425  40 ILM 522 (2001). 421

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in US courts after 2000 426. Similarly to mixed claims commissions, these compensation funds operated as claim facilities for the handling of thousands of mass claims 427. Individual victims were entitled to bring their claims directly in the States of their residence, and the procedures were framed in such a way as to facilitate the filing of claims by (often vulnerable) individuals 428. 106.  The termination of pending lawsuits in Austrian, German and US courts was achieved by different means : in Germany, Section 16 of the Law on the Establishment of the Foundation 429 expressly stated the exclusivity of compensation paid by the Foundation 430. No similar provision was found in the Austrian Compensation   Bilsky, “Transnational Holocaust Litigation”, EJIL 23 (2012), 349 et seq. ; Neuborne, “Holocaust Reparations Litigation : Lessons for the Slavery Reparation Movement”, NYU Annual Survey of American Law 58 (2003), 614 et seq. 427   Hess, BerDGVR 40 (2003), pp. 107, 199 et seq. The German Foundation paid out 4.4 billion euros to more than 1.66 million applicants in more than 100 countries. 428   Often, victims were assisted by victims’ organizations operating in their respective home countries. 429  This foundation was established as a public law agency. 430  Section 16 of the German Law reads as follows : “(1) Payments from public funds, including social security, and from German business enterprises for injustice suffered under National Socialism as defined in Section 11 may be claimed only under the terms of this Law. Any further claims in connection with National Socialist injustices are excluded. This applies also to cases in which claims have been transferred to third persons by operation of law, transition, or a legal transaction. (2) Each claimant shall provide a statement within the framework of the application procedure irrevocably renouncing, without prejudice to Sentences 3 through 5, after receipt of a payment under this Law any further claim against the authorities for forced labor and property damage, all claims against German enterprises in connection with National Socialist injustice, and forced-labor claims against the Republic of Austria or Austrian enterprises.” 426

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Act 431. The pending lawsuits in the United States were dismissed after the US Government filed statements of interest 432. However, the termination of the individual litigation in the different US courts took overall more than ten years as some courts did not acknowledge the binding nature of the declaration and additional lawsuits were brought 433. Eventually, most of the lawsuits were dismissed as non-justiciable under the political question doctrine 434. (d)  Assessment 107.  On balance, in the modern practice of international claim facilities the position of the individual has been considerably reinforced : claims for compensation are filed and assessed individually, even in large-scale compensation schemes 435. In these claim facilities, the procedures applied borrow largely from modern mass claim processing in domestic private disputes and they are mostly based on IT technologies 436. Modern  The Austrian law endorsed a “soft solution” which solely required a waiver when individuals applied for compensation under the Austrian Act, Hess, BerDGVR 40 (2003), pp. 107, 200. 432  According to Article 2 of the American-German Agreement, the US Government was obliged to file the statement of interest contained in Annex II, Austrian and German Holocaust Litigation v. U.S. District Court for the Southern District of New York, 250 F. 3d 156 (2nd Cir. 2001). 433  11th Report of the German Federal Government on “Legal Closure” submitted to the Parliament, Bundestagsdrucksache 17/1398 of 15/4/2010, p. 3. 434   The dismissal of the lawsuits (“legal closure”) proved to be difficult because the American Government declined to give an unequivocal statement since it did not want to get directly involved in the compensation process. 435  With the exception of the Eritrea-Ethiopia Claims Commission. 436   Holtzmann and Kristjánsdóttir, International Mass Claims Processes (2007).

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proceedings on the espousal of claims are highly standardized : individual claims are categorized, grouped and bundled – small claims are usually brought as a sample ; before the international dispute resolution facilities, individual (small) claimants are usually represented by States or international agencies. However, large claims are brought by the affected individuals and businesses themselves. Subsequently, the old “leitmotiv” of diplomatic protection that the claim of the individual is fully espoused by its home State has been replaced by the modern idea of “representation” 437. Against this background, it seems to ensue as a consequence that the individual victim may choose between different fora for the enforcement of his or her claims 438. Conversely, the delineation of the different fora and the co-ordination of parallel disputes pending in different fora has become a major challenge for the modern, open landscape of dispute settlement 439. B.  Individuals as Claimants in International Fora 1.  Human rights bodies 108.  Since 1945, the number of international courts and bodies aimed at protecting and judging violations of human rights has grown considerably. This practice engendered a fundamental change in the structure of international law. As this course does not address the protection of human rights in general, I will only highlight  This development is, nevertheless, still disputed. Dugard, “Diplomatic Protection”, in Wolfrum (ed.), MPEPIL (2009), para. 82. 438  This freedom to choose between the collective proceedings and individual litigation/arbitration is sometimes limited in order to concentrate all proceeding in one single forum. This was especially the case of the Iran-United States Claims Tribunal, but applied also to the UNCC regarding the consequences of the first Iraq war. 439  See infra at paras. 235 et seq. 437

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two aspects of international human rights litigation : on the one hand, the number of private cases 440 heard by these courts and, on the other hand, the recent practice of using human rights bodies for the enforcement of commercial and investment claims. The following remarks will concentrate on the most important body in this field, the European Court of Human Rights. 109.  At first sight, it may appear that the practice of international human rights bodies mainly relates to public disputes (between individuals and the States) since human rights are aimed at protecting the individual against the unlawful exercise of public power. However, the practice of human rights courts is much broader as a result of the fact that the protection of human rights encompasses the protection of substantive rights such as the respect for family and private life, and procedural guarantees such as the right to a fair trial. For instance, the Strasbourg Court developed a case law which also applies to civil litigation, e.g. on the protection of privacy 441 or on the right to an effective remedy in civil disputes 442. According to this case law, contracting  In these proceedings, the contracting State is formally the defendant. Yet, the underlying domestic proceedings relate to civil and commercial matters such as family law disputes (on divorce, parental responsibility, child abduction and successions) or purely private disputes arising out of libel, violation of privacy or something else. 441  Right to respect for private life – Art. 8 (1), ECHR : in the period from 1 January 2012 to 18 March 2017, 282 Chamber and Grand Chamber judgments (merits and just satisfaction) were rendered. In 194 instances a violation was stated ; in the remaining 89 instances no violation was found. 442  Right to a fair trial in civil proceedings – Art. 6 (1), ECHR : in the period from 1 January 2012 to 18 March 2017 : 357 Chamber and Grand Chamber judgments (merits and just satisfaction) were given. In 298 instances a violation was found ; in the remaining 67 instances no violation was stated. 440

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States have a duty to protect individuals (and businesses) against infringements of their conventional rights by third parties 443. An assessment of the case law between 2012 and 2017 found in the database of the Strasbourg Court (HUDOC) demonstrates that almost 18 per cent of all cases (with regard to Articles 6 and 8 of the ECHR, only) arose out of disputes between private parties 444. Nonetheless, the perspective of the Strasbourg Court in these cases is different as the complaints are brought against State parties to the ECHR for the alleged failure of their organs (including courts) to comply with the guarantees of the Convention 445. 110. The second development to be addressed in this course relates to the investors’ increasing recourse to human rights bodies for the protection of their commercial undertakings against regulatory activities (including expropriations as well as national and international austerity measures). Here, human rights protection is used for the same purposes as investment arbitration. However, on the substance, most of these complaints were not successful because the Strasbourg Court recognized the legitimacy of austerity programmes in economic crises 446.   I.e., ECtHR (GC), 15/3/2012, Appl. Nos. 4149/04 and 4129/04, Aksu v. Turkey, paras. 50 et seq.  In total, 3,524 judgments (merits and just satisfaction) were rendered during the same period. Thus, roughly 18 per cent of all judgments concerned the right to respect for private life (Art. 8 (1), ECHR) and the right to a fair trial in civil proceedings (Art. 6 (1), ECHR. I am grateful to Edith Wagner, research fellow at the MPI Luxembourg, for providing me with these statistics. 445  In this respect, States parties of the Convention have a duty to protect individuals against violations of human rights perpetrated by third parties. 446   ECtHR 12/071994, App. No. 22/1993, Stran Greek Refineries and Stratis Andreanidis v. Greece ; ECtHR 20/4/2010, Kin-Stib LLC v. Serbia ; ECtHR Sedlmayer v. Germany. Especially in the context of the recent financial 443 444

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111. So far, Yukos epitomizes the leading case concerning the expropriation of a company and the compensation of its shareholders. This case arose out of the liquidation of the former largest Russian oil and gas company by Russian authorities for alleged unpaid taxes (totalling 27 billion US dollars) in 2003-2004. At the same time, the Russian Government seized Yukos’s assets and removed the management ; as a result, the group became insolvent 447. Between 2006 and 2007 most of the assets were sold and transferred to other Russian Stateowned enterprises for a fraction of their value. Already in 2004, the former management of Yukos submitted an application before the Strasbourg Court against Russia which was based on the violation of Articles 6 and 13 (fair trial), 14 (non-discrimination) of the ECHR, as well of Article 1 of the First Additional Protocol 448. The claimants sought damages amounting to 98 billion US dollars. In January 2009, the Strasbourg Court declared part of the claims admissible 449 and in November 2011 it held that Russian tax authorities and courts had acted unfairly and ultimately expropriated Yukos and, accordingly, had violated Article 6 of the ECHR and Article 1 of Protocol No. 1 450. When Russia’s attempts crises, see ECtHR, 21/7/2016, Appl. Nos. 63066/14, 64297/14 and 66106/14, Mamatas et al. v. Greece.   The taxation charges were accompanied by criminal proceedings against the magnate and owner of Yukos, M. Khodorkowski, a prominent political opponent of the president Putin. Khodorkowski was incarcerated for several years in Siberian prisons. He filed several applications before the Strasbourg Court. 448  ECtHR, 20/9/2011, Appl. No. 14902/04, OAO Neftyanaya Kompanniya Yukos v. Russia. 449  ECtHR, 20/9/2011, Appl. No. 14902/04, OAO Neftyanaya Kompanniya Yukos v. Russia, http ://hudoc.echr.coe.int/eng ? i=001-106308. 450  ECtHR, 20/9/2011, Appl. No. 14902/04,OAO Neftyanaya Kompanniya Yukos v. Russia, judgment on the merits, http ://hudoc.echr.coe.int/eng ?i=001-106308. 447

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to set aside the judgment before the Grand Chamber failed, Yukos’s former management claimed, on behalf of its 55,000 shareholders, 39 billion US dollars as a just satisfaction. Finally, the ECtHR rendered a judgment for 2.6 billion US dollars – the highest amount ever awarded in the history of the court. However, the ECtHR did not award this sum to the claimant (a foundation, since the original claimant had been dissolved in the meantime) but, rather, to the individual shareholders who were named in a list submitted to the Court 451. 112. As of yet, Russia has not honoured the award – the Russian constitutional court declared in 2014 that ECtHR judgments did “not override the pre-eminence of the constitution in the Russian legal system” and that Russia “could step back from its obligations” if that was the only way to avoid violating its constitution 452. To date, the Council of Ministers of the Council of Europe, which is responsible for the supervision of the enforcement of the judgments of the ECtHR, has been unable to reach any compromise solution on the enforcement issue. 113. The Yukos case is exceptional with regard to the amounts claimed and its political and economic implications. However, the applications filed before the Strasbourg Court represent only a small part of the litigation and of the overall wave of investment  ECtHR, 31/7/2014, Appl. No. 14902/04, OAO Neftyanaya Kompanniya Yukos v. Russia, judgment on just satisfaction, paras. 37 and 38 where the Court held that the just satisfaction should not be paid to the Yukos International Foundation, but to the individual shareholders. This decision was criticized by the two dissenting judges who argued that the shareholders had not explicitly brought their claims in the Strasbourg Court, but had chosen (investment) arbitration to enforce their claims, dissenting opinion by Judge Bushev partly joined by Judge Hajiyev, para. 1.3 ; http ://hudoc.echr.coe.int/eng ?i=001-145730. 452  The Russian Constitutional Court explicitly stated that it had not reviewed the decision of the ECtHR on the merits and, rather, it had assessed its compatibility with the constitution. 451

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arbitration claims launched by the (foreign) shareholders of Yukos, as I will demonstrate in the next part of this course. 2.  Investment arbitration 114. Investment arbitration embodies the second major development impacting the standing of individuals at the international level. This development is marked by the following salient features : in the 1960s, Western Governments became aware that the traditional international customary law of investment protection was being challenged by the third world movement while striving for a “new international economic order” 453. In order to preserve the existing level of protection from which they benefited, Western Governments concluded bilateral investment protection treaties (BITs) with socalled developing countries 454. Pursuant to such treaties, the traditional standards of investment protection, often contested by developing countries in international fora (as the UN General Assembly), were retained and guaranteed 455. In 1965, the World Bank set up the ICSID 456, which has become the major resolution   Diehl-Gligor, Towards Consistency in International Investment Jurisprudence (2017), pp. 10 et seq. ; van Harten, Investment Treaty Arbitration and Public Law (2007), pp. 131 et seq. 454   The development is described by Poulsen, “Sacrificing Sovereignty by Chance : Investment Treaties, Developing Countries, and Bounded Rationality”, PhD Thesis LSE (2011), pp. 36 et seq. 455   Schreuer, “Investments, International Protection”, in Wolfrum (ed.), MPEPIL (2013), para. 3 ; Sandrock, “Wem soll das Internationale Investitionsrecht dienen ?”, in Festschrift Geimer (2017), pp. 595 et seq. 456   Convention on the Settlement of Investment Disputes between States and Nationals of Other States of 18 March 1965, 575 UNTS 159. The Convention set up the Centre for the Settlement of Investment Disputes under the auspices of the World Bank, https ://icsid.worldbank.org/en/. As of 453

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facility for investment disputes 457. In ICSID arbitrations, investors are entitled to sue host States directly for (alleged) violations of bilateral investment treaties or other guarantees of investment 458. However, investment disputes administered by ICSID are not the only available avenue for investors to claim compensation for the breach of a BIT. Usually, investors may choose between different dispute settlement facilities ranging from international (ICC) or regional (and even national) arbitration institutions (LCIA, Stockholm Chamber of Commerce), to more genuinely international institutions such as ICSID or the PCA. As a result, “investment institution shopping” has become a widespread (but also disputed) practice in investment arbitration 459. 115.  The basis of investment protection is a bilateral investment treaty (BIT), or the investment chapter of a Free Trade Agreement (FTA) 460, or a multilateral treaty (like the ECT 461) between the host State and the home 12 April 2016, 161 States have signed the Convention and 153 States have ratified it. 457  Today, approximately 70 per cent of all investment disputes worldwide are administered by ICSID, ICSID, Annual Report (2016), p. 3. 458   The procedural framework of ICSID consists of the ICSID Convention, ICSID Administrative and Finance Regulations (2006), ICSID Rules for the Institution of Conciliation and Arbitration Proceedings and ICSID Rules Governing the Additional Facility for the Administration of Proceedings by the Secretariat of the Centre for the Settlement of Investment Disputes (2006). 459  Alvarez, Recueil des cours 344 (2009), 193, 225 et seq. ; Baumgartner, Treaty Shopping in International Investment Law (2016), pp. 15 et seq. (distinguishing forum shopping between different institutions and procedures and treaty shopping between different BITs) ; Ebert, Forum Shopping in International Investment Law (2017), pp. 34 et seq. 460  Such as NAFTA’s Chapter 11. 461   The Energy Charter Treaty of 1994 (2080 UNTS 100 [1994] provides for a mulitlateral framework for energy

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State of the investor according to which the investor is guaranteed several standards of protection 462. Based on these international instruments 463, the investor engages in economic activities in the territory of or directly with the host State (or other sub-divisions). The definition of “investment” in the BITs is usually very broad, ranging from concession contracts, joint ventures with a host State entity, production-sharing agreements, service contracts, build, operate, and transfer (“BOT”) contracts, and build, operate, and own (“BOO”) contracts 464. Depending on the applicable definition of investment it includes tangible and intangible property such as shares of companies or the acquisition of intellectual property rights. According to the case law of some arbitral tribunals, loan contracts and State bonds are equally included 465.

co-operation among its States parties. It also contains a chapter on investment protection and provides for investorState dispute settlement, Bruce, “International Energy Law”, in Wolfrum (ed.), MPEPIL (2014), para. 52. 462  See infra at para. 118. 463  In addition, investment protection may be guaranteed by national legislation (containing an offer to arbitrate any dispute by ISDS) or by an contract between the investor and the host State providing for arbitration. 464   Schreuer, “Investments, International Protection”, in Wolfrum (ed.), MPEPIL (2013), para. 24. As a matter of principle, an investment does not require a contractual relationship between the host State (and/or its subdivisions) and the investor, but an economic activity as described by the applicable instrument on investment protection. 465   Fedax v. Venezuela, Award 9/3/1998, ICSID Case No. ARB/ 96/3, para. 29 ; Abaclat and Others v. The Argentine Republic, ICSID ARB/07/05, decision on Jurisdiction and Admissibility, 4/8/2011, paras. 375-378, holding that the bonds generated funds which served to finance Argentina’s development. Thus, they were qualified as an investment. Generally, Benninghofen, Die Staatsumschuldung (2014), pp. 230 et seq. ; critical Waibel, Sovereign Defaults (2011), pp. 219 et seq.

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116. In order to be eligible to pursue investment arbitration, the investor must be a national of the home State (often the contracting party of the BIT or FTA). This element is crucial in the case of corporate plaintiffs since the nationality of the corporation (lacking international standards) is determined by the laws of the home State unless the investment protection treaty provides for a (self-standing) definition which may be more or less generous 466. However, many BITs provide that shareholders, as well as investors, are protected under the treaty. This favours litigation strategies of investors such as the so-called “nationality planning” through the establishment of a (subsidiary) corporation in a State that has favourable treaty relations with the host State 467. Eventually, this shell subsidiary initiates the arbitration proceedings against the host State 468. Yet, the decisive criterion is that the relevant corporate

  Kessedjian, Droit du commerce international (2013), p. 304 ; modern BITs provide for denial of benefit clauses, cf. Ebert, Forum Shopping in International Investment Law (2017), pp. 184 et seq. 467   Example : Many oil companies in Venezuela hold their investments via subsidiaries in the Netherlands which concluded a BIT with Venezuela providing for favourable protection of Dutch investors, Bjorklund, “Private Rights and Public International Law : Why Competition among International Economic Law Tribunals is Not Working”, Hastings Law Journal 59 (2007), 101, 105. 468   Phoenix v. Czech Republic, Award of 15/4/2009, ICSID ARB/06/5 ; practice of “treaty shopping” by nationality planning triggered resistance from international investment tribunals, see Philip Morris v. The Commonwealth of Australia, PCA Case No. 2012-12, award of 17/12/2015, dismissing the action because the Hong Kong subsidiary of the plaintiff had been restructured in order to bring the claim against the expected Australian plain package policy through this subsidiary. The tribunal held that this strategy amounted to an abuse of procedure. 466

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structure was established before the beginning of the dispute 469. 117. The law applicable to investment disputes is usually determined by a multitude of layers : there is, of course, public international law, mostly contained in the BIT 470. But the “point de repère” (point of reference) for this purpose is usually the commercial contract or the contractual relationships underlying the investment. Choice-of-law clauses contained in these contracts often refer to the law of the host State ; they sometimes provide for stabilization clauses or they refer to the law of a third State (as in the case of bonds) 471. In addition, choiceof-law clauses in investor-State contracts often refer to international law or to the standards of protection provided by the BIT 472. Depending on the BIT these standards of protection include fair and equitable treatment of the investor (FET) 473, as well as full protection and security 474. These standards protect the investor against   Schreuer, “Investment Disputes”, in Wolfrum (ed.), MPEPIL (2013), para. 29 ; McLachlan, International Investment Arbitration (2017), para. 5.194  ; Baumgartner, Treaty Shopping (2016), pp. 12 et seq. (on different scenarios). 470   McLachlan, Shore and Weiniger, International Investment Arbitration (2017), para. 3.107. 471  Wautelet, in Audit and Schill (eds.), Transnational Law of Public Contracts (2016), pp. 259, 269 et seq. 472  Regarding applicable law, Article 42, ICSID Convention, states that any choice of law agreed by the parties will prevail. In the absence of a choice, a tribunal is to apply the host State’s law and such rules of international law as may be applicable. It must be noted that Article 42, ICSID Convention, is based on the assumtion of the existence of a (direct) contract between the investor and the host State. 473  Although this formula (with many variations) is found in almost all BITs, its meaning (in the context of a given BIT) is often unclear, see Alvarez, Recueil des cours 344 (2009), 193, 319 et seq. 474   Zeitler, “Full Protection and Security”, in Schill (ed.), International Investment Law and Comparative Public Law (2010), pp. 183 et seq. This guarantee is understood as a 469

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arbitrary and discriminatory treatment ; they also provide for national treatment and, in addition, for most 475 favourable nation treatment (MFN)  . Furthermore, BITs protect investors against expropriation without compensation, and guarantee the free transfer of profits and of any compensation obtained 476. However, the case law of international investment arbitral tribunals on the degree of protection is not entirely consistent because the BITs themselves provide for different standards of protection 477. 118.  In the practice of arbitral tribunals, the substantive standards of investment protection are applied to the judicial protection of the investor by the domestic courts of the host State 478. In this respect, the fair and equitable treatment obligation has been interpreted as including the prohibition of denial of justice ; the full protection and security guarantee has been interpreted as including a legal infrastructure for the effective protection of foreign investors 479 ; the prohibition of expropriation without duty of the host State to protect the investor against harm and damage caused by private parties, but also to provide for legal protection, Lauder v. Czech Republic, UNCITRAL Award, 3/9/2001, para. 314. 475   McLachlan, Shore and Weiniger, International Investment Arbitration (2017), paras. 7.267 et seq. 476  This was the classical “heart” of foreign investors’ claims prior to the 1950s, McLachlan, Shore and Weiniger, International Investment Arbitration (2017), paras. 8.01 et seq. 477   Diehl-Gligor, Towards Consistency (2017), pp. 127 et seq. and pp. 202 et seq. 478   McLachlan, Shore and Weiniger, International Investment Arbitration (2017), para. 3.108 ; Schill, “Cross-Regime Harmonization through Proportionality Analysis : The Case of International Investment Law, the Law of State Immunity and Human Rights”, ICSID Review 27 (2012), 87, 102 et seq. 479   Lauder v. Czech Republic, UNCITRAL Award, 3/9/2001, para. 314 ; Loewen v. United States, Award of 26/6/2003, ICSID Case No. ARB (AF) 98/3 (NAFTA), para. 189 (holding that the decision of a Mississippi jury was

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compensation was applied to insolvency proceedings 480 and to the unjustified denial of recognition of arbitral awards under the New York Convention 481. Finally, specific provisions such as Article 10 (12) of the Energy Charter Treaty require that “each Contracting Party shall ensure that its domestic law provides effective means for the assertion of claims and the enforcement of rights with respect to investments . . .”. 119.  As a result, the effective adjudication of commercial contracts by civil courts of the host State has become part of investment protection. 120. Although most BITs provide for similar basic guarantees (as just mentioned in the preceding paragraph) the precise wording of the individual investment protection treaties is quite different 482. These divergencies are the main reason for considerable discrepancies in the case law of investment arbitral tribunals 483 that have often erroneous and mistaken but not a violation of FET mandated by Article 1105, NAFTA).   Dan Cake (Portugal) v. Hungary, ICSID Case No. ARB/12/9, cf. Flessner, “Insolvenzrecht und Investitionsschutz nach TTIP und CETA – ein noch unbemerkter Konflikt”, ZIP (2016), 1046, 1051 et seq. 481   Saipem SpA v. Peoples’ Republic of Bangladesh, ICSID Case No. ARB/05/07, Award 30/6/2009, paras. 129-130 (annulment of an ICC award by the Supreme Court of Bangladesh amounted to an unlawful expropriation under the Italy-Bangladesh BIT) ; GEA Group v. Ukraine, ICSID Case No. ARB/08/16 ; Award 22/10/2015, paras. 162 et seq. (holding that an ICC award does not per se qualify as an investment under Article 25, ICSID Convention). 482   McLachlan, Shore and Weiniger, International Investment Arbitration (2017), paras. 2.09 et seq. (discussing common structures of BITs). 483   Moreover, it must also be acknowleged that additional divergencies have been caused by the diverging individual approaches of the arbitrators involved. 480

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been described as a matter of concern 484. However, these concerns appear much less significant if one regards the legal basis of investment arbitration more closely : as the whole system is based on international treaty law, arbitral tribunals first and foremost apply the pertinent and (often) detailed instruments (treaties) of public international law 485. In this respect, their methodological approach is not fundamentally different from the approach of arbitral tribunals addressing (individual) commercial contracts. From the perspective of a general investment law, this situation might be considered as unsatisfactory as the individual disputes are primarily decided under the applicable international treaties (and much less under general principles of investment law) 486. On the other hand, legal certainty is much more guaranteed on the basis of applicable treaty provisions – compared to vague, usually unwritten rules of customary law and general principles of public international law 487. This legal background explains why investment arbitration has become a quite successful area of dispute settlement 488,   Diel-Gligor, Towards Consistency in International Investment Arbitration (2017), pp. 127 et seq. (with further references) ; Schill, in idem (ed.), International Investment Law and Comparative Public Law (2010), pp. 3, 6 et seq. (“legitimacy crisis” of investment arbitration). 485   McLachlan, Shore and Weiniger, International Investment Arbitration (2017), para. 3.158. 486  Against this background, attempts of elaborating a general theory of international investment law have proved to be difficult, although arbitral tribunals often make a detailed assessment of precedents, cf. AES Corp. v. Argentina (Decision on Jurisdiction), ICSID Case No. ARB 02/17, paras. 18 et seq. 487   Schultz, “Against Consistency in Investment Arbitration”, in Douglas, Pauwelyn and Vinautes (eds.), The Foundations of International Investment Law : Bringing Theory into Practice (2014), pp. 297, 303 et seq. 488  Legal predictability and certainty are foremost provided by the applicable BIT in the case under consideration. 484

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notwithstanding that the lack of overarching principles might disappoint academics working in this field 489. 121.  Similarly to commercial arbitration, investment arbitration is based on the consent of both parties : the host State and the investor 490. Consent to arbitration may be given in different ways. First, both parties may agree to a dispute settlement clause in the contract underlying the investment. Second, the investment treaty concluded between the two States may contain an offer to arbitrate made to the national of the other contracting State. In this case, the arbitration agreement is not embodied in the BIT, and, rather, the BIT merely offers arbitration as a dispute resolution mechanism to eligible nationals. This offer to arbitrate is accepted by the investor at the moment he brings a claim under Article 25 (1) of the ICSID Convention 491 or institutes other arbitration proceedings. The investor may also explicitly accept the host State’s offer to arbitrate by means of a formal declaration. Finally, the offer to arbitrate may also be  It should be noted that there are many valuable attempts to systematize investment law and arbitration, see McLachlan, Shore and Weiniger, International Investment Arbitration (2017), paras. 3.157 et seq. and paras. 3.174 et seq. (urging for a cautious assessment of the individual case under consideration). 490  Different opinion, van Harten, Investment Treaty Arbitration, pp. 63 et seq., who considers the consent to arbitrate expressed in an investment treaty being an aliud to consent based on party autonomy, similar Schill, in idem (ed.), International Investment Law and Comparative Public Law (2010), pp. 3, 14. 491  Article 25 (1) of the ICSID Convention reads as follows : “The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Centre by that State) and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre. When the parties have given their consent, no party may withdraw its consent unilaterally.”

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included in the domestic legislation of the host State on foreign investments 492. 122. Another issue relates to the direct accessibility of investors to ISDS. Whether the investor is entitled to initiate the arbitration proceedings immediately once the dispute has arisen or whether the domestic remedies of the host State must be exhausted first depends on 493 the wording of the BIT  . Sometimes, investment protection treaties provide a so-called “fork in the road clause” which requires the investor to choose between commencing court proceedings in the host State or immediately resorting to arbitration 494. Usually, litigation in the domestic courts of third States is not an option since investment protection relates to (allegedly) unlawful activities of the host State (on its own territory) which usually qualifiy as acta jure imperii and, as such, trigger the State immunity defence 495. However, State immunity may not always shield the host State from   Paulsson, “Arbitration without Privity”, ICSID Review (1995), 232, 234. 493  This situation is addressed by Article 26 of the ICSID Convention which provides a presumption that the investor can directly revert to investment arbitration. It states : “Consent of the parties to arbitration under this Convention shall, unless otherwise stated, be deemed consent to such arbitration to the exclusion of any other remedy. A Contracting State may require the exhaustion of local administrative or judicial remedies as a condition of its consent to arbitration under this Convention.” In State practice, the 2nd sentence is not applied, McLachlan, Shore and Weiniger, International Investment Arbitration (2017), para. 4.78. 494  Example : Article VI of the US Model BIT of 1987, Alvarez, Recueil des cours 344 (2009), 193, 222 et seq., see infra at paras. 244 et seq. 495   Schreuer, “Investment Disputes”, in Wolfrum (ed.), MPEPIL (2013), para. 20 ; Schill, ICSID Review 27 (2012), 87, 88 et seq. 492

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civil litigation in third States, as the Argentine and Greek bonds litigations demonstrate 496. 123. The procedures applied in the arbitration proceedings are often those put forth by the UNCITRAL Arbitration Rules 497 or the ICSID Convention, which provide for self-contained regimes of procedural rules and the administration of the disputes. When it comes to enforcement, either the rules on recognition of the award contained in Articles III-V of the New York Convention or Article 54 of the ICSID Convention, which provides for direct enforceability of the award without any prior recognition, apply 498. At the enforcement stage, however, immunity from enforcement 499 considerably limits the possibilities for the investors to enforce the award outside the host State 500. In these instances, the investor ultimately remains dependent on its home State to exercise diplomatic protection on his behalf 501. 124. Over the last decade, investment arbitration has increasingly become a matter of political debate 502.   Supra at paras. 26 et seq. See also infra, paras. 238 et seq. on the Peterson case. 497  This may include the 2014 UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitration, infra at paras. 177 et seq. 498   Riesenfeld and Robbins, “Finality under the Washington and the New York Conventions”, ICSID Review 32 (2017), 371, 378 et seq. 499  Article 55 of the ICSID Convention explicitly preserves immunity from enforcement, see infra at para. 170. 500   Schill, ICSID Review 27 (2012), 87, 91, convincingly describes the applicability of immunity from execution as a safety valve for States to escape from unlimited liability under the investment protection treaties. 501   King and Moloo, in Ferrari (ed.), Forum Shopping in the International Commercial Arbitration Context (2013), pp. 393, 439 et seq. on successful lobbying of investors who convinced home States to retract trade preferences from States that had reneged on paying ICSID awards. 502   For an overview, cf. Hess, “Die Legitimationskrise der Investitionsschiedsgerichtsbarkeit”, in Festschrift Stein 496

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Critics stress that the procedure is imbalanced as it unilaterally favours the investor without imposing corresponding obligations on him. This unilateral nature of the regime is a consequence of its goal to fully protect the investor. Consequently, the dispute resolution clauses only operate in favour of the investor. The host State cannot bring a self-standing claim against the investor, but it may bring a related counterclaim 503. Furthermore, it is largely disputed to what extent the investor is bound by human rights (vis-à-vis the population of the host State) or international standards to act in good faith when bringing the claim 504. Modern BITs stress the right of the host State to regulate and the necessity that the political choices of lawmakers aimed at protecting public interests (such as protecting the environment, health, human rights) must be respected 505. Finally, the most fundamental critique relates to the legitimacy of international investment arbitral tribunals whose members are appointed by agreement of the parties. Some observers express criticism with respect to the fact that “private tribunals” review political choices of (democratic) sovereign nations 506. Recent improvements (2015), pp. 163, 171 et seq. ; Alvarez, Recueil des cours 344 (2009), 193, 246 et seq. ; the pertinent critique has been formulated in a straightforward way by Eberhardt and Olivet, Profiting from Injustice (2012). 503  See Article 46, ISCID Convention. The imbalance is the consequence of the objective of the regime which primarily aims at protecting the investor against regulatory measures of the host State. 504   Urbaser S.A. et al. v. The Argentina Republic, Decision on admissibility, 8/12/2016, ICSID Case No. ARB/7/26, paras. 1143 et seq. 505   Muir Watt, “The Contested Legitimacy of Investment Arbitration and the Human Rights Ordeal : The Missing Link”, in Mattli and Dietz (eds.), International Arbitration and Global Governance (2014), pp. 214 et seq. 506  For a summary of the critics, see Alvarez, Recueil des cours 344 (2009), 193, 246 et seq.

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in the “transparency” of investment arbitration have so far proven insufficient to overcome the broad legitimacy concerns raised against international investment arbitral tribunals in this context, as validated by the transatlantic debates surrounding TTIP and CETA 507.

507

  Supra at para. 13 and infra at paras. 171 et seq.

CHAPTER IV

REGULATORY CHALLENGES : COMPETING INSTITUTIONS AND LEGAL ORDERS 125. This chapter examines regulatory changes in dispute resolution both in cross-border and in genuinely international settings. When it comes to regulation, two opposite approaches may be followed : on the one hand, lawmakers may refrain from intervening directly in the self-regulatory process by giving leeway to private (sometimes international) stakeholders 508. This was the regulatory approach that was predominantly implemented before the big financial crisis in 2008 509. Since the outbreak of the crisis, the interventions of national, regional and international regulators have increased. Yet, recent political changes which occurred in the United States in 2016 might entail a comeback of the de-regulatory approach of the 1990s (which gave leeway to largely unregulated banks and hedge funds). Both tendencies, privatizing dispute resolution and

 For a comprehensive analysis cf. Büthe and Mattli, The New Global Rulers : The Privatization of Regulation in the World Economy (2011), pp. 18 et seq. 509   According to general political development, lawmakers may opt for a higher or lower degree of public intervention. Since the financial crisis of 2008, public regulators have become aware of the inherent dangers of self-regulation where stakeholders do not sufficiently care about the rights and interests of third parties affected by their activities. Biggins, “ ‘Targeted Touchdown’ and ‘Partial Liftoff’ : PostCrisis Dispute Resolution in the OTC Derivatives Markets and the Challenge for ISDA”, German LJ 13 (2012), pp. 1297 et seq. 508

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enhancing the enforcement of public regulatory goals by private litigation, are addressed in this chapter. A.  Privatizing Dispute Resolution 1.  Economic self-regulation – the case of ISDA 126. In today’s post-modern economic world, large areas of regulation are not dominated by State intervention but, rather, left to the self-regulation of the stakeholders concerned 510. In cross-border settings, selfregulation often takes place at the supranational level by the private ordering of (non-profit) organizations representing commercial stakeholders and industries which are interested in the standardization of economic transactions at a global level 511. A pertinent example of these practices is the International Swaps and Derivatives Association (ISDA) 512. Established as a nonprofit organization under New York law, ISDA aims to provide standard terms for financial transactions which are applied to “over the counter” transactions (SWAPs and derivatives) 513. These transactions are usually made  Self-regulation processes are often based on an explicit decision by lawmakers to delegate standardization to institutions of experts, Büthe and Mattli, The New Global Rulers (2011), pp. 128 et seq. 511  Cuniberti, “The Merchant Who Would Not Be King”, in Muir Watt and Fernández Arroyo (eds.), Private International Law and Global Governance (2014), pp. 141, 145 et seq. ; Büthe and Mattli, The New Global Rulers (2011), pp. 32 et seq. 512  See supra at para. 6. Similar developments are found in many industrial sectors, i.e. in the shipping industry, cf. Druzin, “Spontaneous Standardization and the New Lex Maritima”, in Goldby and Mistelis (eds.), The Role of Arbitration in Shipping Law (2016), paras 4.05 et seq. The most comprehensive institution is the International Organization for Standardization (ISO), Büthe and Mattli, The New Global Rulers (2011), pp. 132 et seq. 513  Overall, the ISDA has largely regulated the global market for SWAPs and derivatives by private ordering based on

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outside of stock exchanges and regulated markets, and they often involve contracting parties from different jurisdictions 514. 127. Since 1985, ISDA has elaborated a so-called Master Agreement 515 which provides a standardized boilerplate contract regulating these (often complex) financial transactions. It consists of two parts : the first sets forth the major definitions and forms of the master, and the second provides a schedule on which the individual transactions may be completed or varied 516. Participants in the trading of derivatives must formally agree to the Master Agreement. The latter then forms the legal basis (and provides for standard forms) of the respective individual transactions 517. 128. Technical disputes between the parties to the Master Agreement are solved by a standard scheme for structured negotiations and, ultimately, by dispute resolution boards composed of experts 518. The ISDA Master Agreement contains choice of law provisions and jurisdiction clauses to New York and England, places which are considered to be “derivatives friendly” in standard terms, Biggins, German LJ 13 (2012), 1297, 1298 et seq. 514  Basically, credit default swaps are contracts that transfer credit risks from one party to another for a fee. In practice, these transactions are highly complex, cf. Scott and Gelpern, International Finance : Law and Regulation (2012), paras. 15-01 et seq. 515  Originally, the ISDA was formed by major sellers of derivatives in order to expedite documentation through the development of standard terms. It elaborated several editions of a “code” of standard terms, Jordan, International Capital Markets (2014), paras. 9.01 et seq. 516   Scott and Gelpern, International Finance  : Law and Regulation (2012), paras. 15-023 et seq. 517  Biggins, German LJ 13 (2012), 1297, 1312 et seq. 518  ISDA Master Agreement, Annex 9, 2013 ISDA Arbitration Guide available at: http://www.isda.org/publications/isda masteragrmnt.aspx.

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terms of financial regulation and of dispute resolution 519. However, the complex and specific character of the Master Agreement usually entails that disputes are largely solved without any direct resort to national law. 129.  Nevertheless, the ISDA Master Agreement also shows the limits of “private law making” and dispute resolution : after the Lehman Brothers collapse in the financial crisis of 2008, courts in England and in New York decided disputes related to the ISDA Master Agreement and invalidated clauses which were in conflict with the (overriding) law governing the respective insolvency 520. In some of these processes, the ISDA intervened as 521 amicus curiae, showing its regulatory ambitions  . However, courts did not always follow these briefs, and the ISDA was obliged to adapt its regulatory framework to the (mandatory) case law 522. 130. These developments triggered a shift away from litigation toward arbitration. Since 2011, the ISDA Master Agreement now provides a set of arbitration clauses allowing the individual parties to submit potential disputes to specialized arbitration taking place at different places (New York, London, Paris, Hong  Biggins, German LJ 13 (2012), 1297, 1316 et seq.   Cuniberti, in Muir Watt and Fernández Arroyo (eds.), Private International Law and Global Governance (2014), pp. 141, 145 (at footnote 31) ; Biggins, German LJ 13 (2012), 1297, 1319 et seq. 521  Stephan, “Privatizing International Law”, Va. L. Rev. 97 (2011), 1573, 1602. 522  Most prominently  : CSX Corp. v. Children’s Investment Fund Management (UK), 562 F. Supp. 2d 511 (SDNY 2008), Biggins, German LJ 13 (2012), 1297, 1321. The jurisdiction clause (No. 13) of the ISDA Master Agreement was narrowly construed in Deutsche Bank AG v. Comune di Savona [2017] EWHC 1012 (Comm.) and in Dexia v. Brescia [2016] EWHC 326 (Comm.). In both cases, additional jurisdiction clauses (to Italian courts) had been agreed among Italian municipalities and foreign banks in mandate contracts with regard to SWAP contracts. 519 520

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Kong and Singapore) 523. In addition, the ISDA formally established a new arbitration body, the PRIME Finance in The Hague. Affiliated with the Permanent Court of Arbitration (as administrative body), it provides for mediation and arbitration (based on the UNCITRAL arbitration rules) and offers a list of experts and model clauses 524. The list of experts 525 is made up of those having special experience in derivatives and other financial products 526. Eventually, most disputes based on the Master Agreement will be shielded from State court review and will be decided by highly specialized experts in the field 527.

 The main objective of the clause is to guarantee dispute resolution by experienced arbitrators. Parallel choice of law clauses provide that the respective law at the seat of the arbitral tribunal applies. As a result, the regime is not entirely detached from private international and private law, Cuniberti, in Muir Watt and Fernández Arroyo (eds.), Private International Law and Global Governance (2014), pp. 141, 145. 524   The model clauses directly refer to the ISDA Master Agreements of 1992 and 2002, https://primefinancedisputes. org/page/model-clauses (last accessed 1/11/2017). 525  Most listed experts come from the United Kingdom and the United States. 526  Website: https://primefinancedisputes.org/ (last accessed 1/11/2017). However, no arbitral awards have been reported so far. 527  The upcoming termination of the membership of the United Kingdom in the European Union (“Brexit”) has increased this tendency. Originally, the Master Agreement contained a jurisdiction clause providing for the jurisdiction of the High Court of London. This clause is based on Article 25 of the Brussels I bis Regulation. As Brexit entails that the Brussels I bis Regulation will no longer apply to the United Kingdom after March 2019, the ISDA recently modified the Master Agreement and enlarged the arbitration option, cf. ISDA: Brexit – CCP Location and Legal Uncertainty (August 2017), http://assets.isda.org/media/f253b540-165/ 6f5a4868-pdf/ (last accessed 1/11/2017). 523

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131.  The financial crisis beginning in 2008 resulted in an increased regulatory intervention by States and regional economic organizations (including also in the framework of G20) into the derivative markets. The MIFID Directive 2004/39/EC 528 and the MIFID II framework 529 in Europe and the Dodd-Frank Act in the United States 530 established tightened supervisory regimes 531 to which the ISDA had to adapt its regulatory framework (especially with regard to notification and reporting obligations). As a result, the ISDA is not only an interesting example of private law-making and ordering, but also an example of its regulatory limitations. States and international regulators may need regulations on private ordering in the public interest 532. 2.  Dispute resolution in international sports law 132.  Sports law represents the most comprehensive self-contained legal order operating worldwide. Global sports law is organized by powerful private associations 533 operating at the top of a pyramid of national  OJ 2004 L 145. Operative since 2007, MIFID I imposed common rules applicable in all EU Member States on the mandatory trading of derivatives and the disclosure of trade transparency data. 529  Directive 2011/61/EU, OJ 2014 L 173/349 (MIFID II). 530  Public Law 111-203 of 21/3/2010. 531   These reforms targeted the following main objectives: increasing transparency, managing counterparty credit risk, reducing systemic risk, and fostering operational efficiency ; see Ferrarini and Saguato, “Regulating Financial Infrastructure”, in Moloney, Ferran and Payne (eds.) The Oxford Handbook of Financial Regulation (2015), pp. 579 et seq. 532  Biggins, German LJ 13 (2012), 1297, 1320 et seq. 533  Most sports federations are private associations under the Swiss civil code, see Haas, “Loslösung des Sports aus der Umklammerung des staatlichen Rechts”, SJZ (2010), 585, 589 et seq. 528

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sports federations and associations 534. These associations are organized in a way that the corporate membership of a lower ranking association in a higher one is conditional upon the adoption and implementation of all the regulations adopted within the higher ranking association 535. This principle is based on the need of sports federations to organize international sport (and competitions) by common rules of the games 536. If a lower federation fails to comply with the rules of the higher federation, it will be immediately barred from all competitions 537. As a result, the organization of international sport is based on a hierarchy where the international sports federations impose their regulations to all lower federations 538. Today, however, the regulatory   Hess, “The Development of Lex Sportiva by the Court of Arbitration for Sport”, in Vieweg (ed.), Lex Sportiva – Beiträge zum Sportrecht (2015), pp. 59, 62 et seq. 535  In addition, sports law is based on the so-called “one place principle” which means that for each specific sport only one federation is entitled to organize competitions – at the global, the national, the regional and the local level. 536  From the perspective of athletes, the equality of opportunity in participating in the competition is a basic and fundamental need/requirement for the organization of sports competitions at an international or global level, cf. Vieweg and Staschik, “The Lex Sportiva – The Phenomenon and its Meaning in the International Sporting Arena”, in Vieweg (ed.), Lex Sportiva (2015), pp. 18, 19. 537   If a national sports federation does not comply with a decision of a regional or international federation, all inferior federations/sports associations will be banned equally, see Vieweg and Staschik, “The Lex Sportiva”, in Vieweg (ed.), Lex Sportiva (2015), pp. 18, 41 (on the obligation to adopt statutory rules and to enforce sanctions). According to the case law of the Swiss Federal Tribunal, the self-standing enforcement system of sports federations is compatible with Swiss law, Decision of 5/1/2007, 4P.240/2006. 538   It should be mentioned that sports federations do not need any support from State courts for the enforcement of sanctions : inferior federations which do not voluntarily comply with the sanctions will be automatically excluded 534

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power of sports associations goes far beyond the adoption of rules of the games merely regulating the competition in the different sports. Current regulatory issues relate to the growing commercialization of sports and to the threat of doping. However, due to the organizational structure of sports, which is based on the so-called “one place principle” 539, international federations have been able to not only maintain but also expand their regulatory power onto third parties 540. The developments within modern sports are marked by the growing commercialization and the battle against doping. 133. The combat against doping is organized and conducted by the World Anti-Doping Agency (WADA), which is a private foundation under Swiss law 541. WADA was founded for the purpose of bringing consistency to anti-doping policies and regulation within sport federations and Governments across the world 542. WADA monitors the implementation of the World Anti-Doping from the competition. This enforcement mechanism raises concerns of cartel law (abuse of a predominant position), see infra at paras. 182 et seq. 539  According to the “one place principle”, only one single local, regional, national and international federation organizes specific competitions on the different levels, Hess, “Voraussetzungen und Grenzen eines autonomen Sportrechts unter besonderer Berücksichtigung des internationalen Spitzensports”, in Hess and Dressler (eds.), Rechtsfragen des Sports (1999), pp. 1, 43. 540   A pertinent example relates to consultants of athletes who, according to the regulation of some – powerful – international sports federations, are subject to a kind of deontology code imposed by the Federation. However, their commercial interests are only loosely connected to sports competitions. 541  Its seat is Lausanne, Switzerland, and its headquarters are located in Montreal, Canada. 542   The Foundation Board of WADA is composed of 38 members, 19 of them are government representatives, 19 come from sports federations and the Olympic movement, and 4 are representatives of athletes.

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Code 543 by means of national anti-doping agencies ; it establishes the Annual List of Prohibited Substances and Methods and it is responsible for the accreditation of laboratories. Doping controls are co-ordinated globally through a central clearinghouse Anti-Doping Administration & Management System (ADAMS). This system impacts severely the privacy of athletes : four times per year athletes must provide information regarding their whereabouts for the following three months (so called “whereabouts” information) and in which time-frame they are available for doping controls. These controls may take place 365 days per year. If athletes are not found at the place indicated, they will be sanctioned 544. Doping sanctions are imposed by sports federations (at different levels) ; they are reviewed by disciplinary commissions on the basis of harmonized procedures. Against their rulings, appeals may be filed to the Court of Arbitration for Sport (CAS) 545. 134. International sports organizations provide for a self-standing dispute settlement system. In the early 1990s, the International Olympic Committee originally 546 established the Court of Arbitration for Sport  . The basic idea was to create an international dispute settlement forum which would replace to a large extent any control (or interference) of the sports system by State courts 547. In this respect, the system builds on the New York Convention on International Arbitration  See supra at para. 7.  The doping control system is being criticized by athletes because of its disproportionate and unjustified intrusion into the athletes’ privacy, Wolf and Eslami, “Sport (zwangs) schiedsgerichtsbarkeit”, in Festschrift Geimer (2017), pp. 807, 809 et seq. 545  See infra at paras. 181 et seq. on the Pechstein case. 546   http ://www.tas-cas.org/en/index.html. 547  However, the positive predominant idea was (and is) to preserve equal conditions in sports competitions, Adolphsen, 543 544

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which does not restrict its material scope of application 548 to civil and commercial disputes  . The reflection process ended up in the creation of the Court of Arbitration for Sport in Lausanne (Switzerland) which has become the only comprehensive authority for deciding sports law disputes (most of which arise out of (alleged) doping offences). The CAS comprises two divisions, one for the settlement of ordinary sports disputes 549, and the appeal division, which deals with doping sanctions 550. However, the CAS itself is not a permanent court or a standing arbitral tribunal. It is organized as an institution for the administration of sports arbitration, similarly to the ICC, the PCA or ICSID. However, a prominent feature of sports arbitration is the efficiency of the proceedings. Usually, disputes shall be decided during the (ongoing) competition, i.e. disputes arising during the Olympic Games shall be decided by socalled ad hoc CAS arbitral tribunals within 24 hours. The equivalent time limit for the FIFA World Cup is 48 hours 551. 135.  According to the CAS rules of procedure, CAS arbitral tribunals primarily apply the in Bumke and Röthel (eds.), Privates Recht (2012), pp. 93, 94 et seq.  See Art. I (3), NYC. Therefore, the issue whether doping sanctions fall under the material scope of the NYC was not an impediment to its application to sports related disputes. 549   These disputes include sponsorship agreements, broadcasting rights, player transfers and other athlete contract matters. 550  These procedures apply to sanctions of disciplinary bodies of national and international sport federations, especially in the case of doping, see Articles R-45 et seq. Code of sportsrelated arbitration in force from 1 January 2017 (CAS Code), www.tas-cas.org. 551   Rigozzi, Besson and McAuliffe, “International Sports Arbitration”, The European Arbitration Review (2017), 7, 8 et seq. 548

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“applicable regulations and, subsidiarily . . . the rules of law chosen by the parties . . . or . . . the Rules of Law the Panel deems appropriate” 552. Although the ambition of the CAS is to establish an independent legal order of sports self-regulation operating outside of any control of State courts, arbitral tribunals of the CAS often take a less consistent stance as concerns the direct application of a self-standing lex sportiva 553. As evidenced by their awards, they primarily refer to the applicable regulations of the sports federations and to the case law of other tribunals of the CAS 554. As a result, this practice has established a “jurisprudence constante” 555 which comes close to a self-standing lex sportiva 556. In  Article R-58, CAS Code, which reads as follows : “The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision.” Similar provisions are found in Article 17, CAS Arbitration Code, for the Olympic Games and in Article 18, CAS Arbitration Rules, for the FIFA World Cup Final Round 2006, Wax, “Public International Sports Law and the Lex Sportiva”, in Vieweg (ed.), Lex Sportiva – Beiträge zum Sportrecht (2015), pp. 145, 150. 553  Vieweg and Staschik, “The Lex Sportiva”, in Vieweg (ed.), Lex Sportiva – Beiträge zum Sportrecht (2015), pp. 18, 24 et seq. (with many examples) and an assessment at pp. 45 et seq. 554  As a result, the application of State law is largely avoided, although still possible, Hess, in Vieweg (ed.), Lex Sportiva – Beiträge zum Sportrecht (2015), pp. 59, 67 et seq. ; Casini, “The Making of a Lex Sportiva by the Court of Arbitration for Sport”, German Law Journal (2011), 1317, 1330. 555  A consolidated case law. 556  Different opinion Kaufmann-Kohler, Arb. Int’l 23 (2007), 357, 365 et seq., acknowledging the existence of prece552

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my opinion, however, the body of law created by the arbitral tribunals is primarily based on the interpretation of the statutes of the federations rather than on a fully proper and self-standing lex sportiva. 136. CAS arbitral awards are subject to annulment proceedings in the Swiss Federal Court. Yet, the Swiss Federal Court subjects “international awards” to a limited review only. Annulment proceedings are based on Articles 190-192 Swiss Law on Private International Law. Although the CAS has its seat in Switzerland, Swiss private international law considers arbitral awards of the CAS (between non Swiss athletes and international sports federations) as international awards which are only subject to a limited review 557. Such limited review of the awards by the Swiss Federal Tribunal has reinforced the role of the CAS as the central judicial authority for reviewing decisions and sanctions in sports law. Nevertheless, whether the Swiss Federal Court adopted a too lenient approach as concerns the review of the awards of the CAS remains to date an open question 558. dents and a lex sportiva elaborated by the CAS arbitral tribunals. 557  Although most of the case law is accessible via a database of the CAS, it must be stressed that by far not all awards are published. This practice does not comply with the requirements of a transparent dispute settlement system. According to R-59, CAS Code, all CAS appeal cases shall be made public “unless both parties agree that [it] shall remain confidential”. However, this rule does not apply to ordinary proceedings. 558  According to Article 192 (1) of the Swiss Private International Law Act, the review of international awards can be reduced to procedural and substantive public policy. The provision reads as follows : “If none of the parties have their domicile, their habitual residence, or a business establishment in Switzerland, they may, by an express statement in the arbitration agreement or by a subsequent written agreement, waive fully the action

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137. In this framework, it is interesting to look at the operation of the New York Convention in the context of sports law. Here, the convention is not used as an instrument for recognizing and enforcing arbitral awards of the CAS worldwide 559. In fact, the recognition and enforcement of the CAS awards is regulated by and within the statutory framework of the sports federations, and no intervention of State courts is needed 560. The New York Convention, however, plays a role in the context of sports law as a result of Article II, NYC, which obliges State courts to recognize arbitration agreements and to send parties to the agreed arbitration unless the agreement is null, void or incapable of being performed 561. According to this provision, athletes (and federations) cannot bring disputes to State courts but must resort to arbitration proceedings within the sports system, instead. Consequently, the regulatory and sanctioning power is broadly shielded from any review by State courts. As a result, sports law has become a self-standing system for annulment or they may limit it to one or several of the grounds [thereof].” See Scherer, “The Fate of Parties’ Agreements on Judicial Review of Awards : A Comparative and Normative Analysis of Party-Autonomy at the Post-award Stage”, Arb. Int’l 32 (2016), 437, 450 et seq. 559  Only in exceptional cases, CAS awards have been recognized and enforced by State courts, Vieweg and Staschik, “The Lex Sportiva”, in Vieweg (ed.), Lex Sportiva (2015), pp. 19, 55. 560  By their statutes, the federations are obliged to enforce sanctions contained in the decisions of the CAS – if they fail to comply they, too, will be sanctioned. The common sanction is the exclusion from the competition (and this exclusion extends to all athletes who do not comply with the sanction), Haas, SJZ 106 (2010), 585, 591 et seq. ; Vieweg and Staschik, “The Lex Sportiva”, in Vieweg (ed.), Lex Sportiva (2015), pp. 18, 55. 561   Casini, German Law Journal (2011), 1317, 1334, see infra at paras. 181 et seq. with regard to the Pechstein case.

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of private law operating almost entirely outside of State courts. However, as will be demonstrated later 562, the system is being challenged by athletes who contest the legitimacy of a framework which is imposed unilaterally by the (controlling) sports federations. B.  Private Enforcement and Public Interest Litigation : the Case of Data Protection 1.  The regulatory approach of the European Union 138. While the deferral of sports disputes to international arbitration in Switzerland must be considered as a full resort to private dispute resolution, in other areas of cross-border dispute settlement the influence of public regulation is steadily increasing. The most conspicuous area in this context is the Internet 563. With regard to data protection, the European Union has endorsed a protective approach 564 which entails the expansion of the territorial reach of EU instruments in order to protect citizens and businesses in the European Judicial Area against unlawful and unfair activities committed within the Area or coming from third States 565. As a result, the  See infra at paras. 180 et seq.  Here, two opposing trends are found : on the one hand, a growing privatization with regard to domain names, see supra at paras. 75 et seq. On the other hand, growing regulatory initiatives related to data protection (and the protection of privacy). Generally Schultz, EJIL 19 (2008), 799 et seq. 564   Data protection has strong constitutional underpinnings, see Articles 7 and 8 of the European Charter of Fundamental Rights (CFR) and Article 16, TFEU, ECJ, see case of 13/3/2014, C-131/12, Google Spain, EU :C :2014 : 317, para. 58, and of 6/10/2015, C-362/14, Schrems I, EU :C :2015 :650, paras. 38-39 ; Opinion 1/15, 26/7/2017, EU :C :2017 :592, paras. 35 et seq. 565  Cf. Kuner, “The Internet and the Global Reach of EU Law”, LSE, Law, Society and Economy Working Papers 4/2017, pp. 26 et seq. It must be noted that the lawfulness of any 562 563

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protection (and shielding) of the Internal Market as well as the Area of Freedom, Security and Justice against intruding activities coming from actors domiciled in and controlled by a third State has become a priority for the European legislator 566. Accordingly, the extraterritorial application of mandatory laws has been strengthened and the availability and accessibility of private law remedies, including collective redress, have been reinforced, too. 2.  The 2016 General Data Protection Regulation 139. EU data (protection) law embodies the area where the interaction of public and private enforcement (based on extraterritoriality) is most discernible 567. The new General Data Protection Regulation of 27 April 2016 (GDPR) establishes a comprehensive framework for the cross-border exchange of data, not only within the Internal Market, but also with regard to (non-EU) third States 568. The GDPR is remarkable for two reasons. On the one hand, it combines different instruments of modern activity is (unilaterally) regarded through the lens of the applicable EU law.   This development is backed by the case law of the ECJ, see case of 13/3/2014, C-131/12, Google Spain, EU :C :2014 :317, and of 6/10/2015, C-362/14, Schrems I, EU :C :2015 :650, and – recently – Opinion 1/15, 26/7/2017, EU :C :2017 :592. On the extraterritoriality of secondary EU law, see opinion AG Jääskinen, 21 November 2014, case C-507/13, United Kingdom v. Parliament and Council, EU:C:2014:2394, paras. 36 et seq. 567  Similar developments are found in other areas, too. One example is cartel law where Directive 104/2014/EU combines public and private enforcement but gives finally preference to the activities of public authorities. 568  Regulation (EU) 2016/679 “on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)”. According to its Article 99 (2) the Regulation shall apply as from 25 May 2018. 566

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enforcement law  : private remedies, public supervision and control, substantive standards and procedural remedies 569. On the other hand, the GDPR defines its regulatory reach from a protective perspective : it applies to all data processing activities impacting data subjects 570 situated within the Internal Market, regardless of the place (and the jurisdiction) where the respective activity takes place 571. As a result, the GDPR adopts a unilateral approach, which shall export EU protection standards to any processing of data in third countries impacting on data subjects within the European Union 572. Looking at the goals sought with the adoption of the GDPR, it appears that the GDPR shall also operate as a standard setter for data protection at the global level 573.   Brkan, “Data Protection and European Private International Law”, EUI Working Papers RSCAS 2015/40, pp. 4 et seq., correctly distinguishes an administrative litigation path from a civil litigation path in the European law of data protection. 570  Article 4 (1), GDPR, defines data subjects as identified or identifiable natural persons in need for comprehensive protection with regard to their personal information. 571  This extraterritorial concept was developed by the ECJ in the judgments of 1/10/2015, case C-230/14, Weltimmo, EU :C :2015 :639 ; and of 13/3/2014, case C-131/12, Google Spain, EU :C :2014 :317, see Gömann, “The New Territorial Scope of EU Data Protection Law: Deconstructing a Revolutionary Achievement”, CMLR 54 (2017), pp. 567, 570 et seq. 572   Kohler, “Conflict of Law Issues in the 2016 Data Protection Regulation of the European Union”, Riv. dir. int. priv. e proc. (2016), 653 et seq. This regulatory approach is quite common in the context of the Internet, cf. Schultz, EJIL 19 (2008), 799, 807 et seq. (on the protection of “local values”). 573   Kuner, “The Internet and the Global Reach of EU Law”, LSE, Law, Society and Economy Working Papers 4/2017, pp. 30 et seq. 569

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(a)  Regulatory objectives 140. Against this background, it is worth regarding closely the regulatory scheme of the new regulation 574. It pursues a twofold objective as it aims to protect, on the one hand, individuals with regard to the processing of their personal data but shall, on the other hand, facilitate the free movement of personal data within the Internal Market and with regard to third States. The Regulation’s personal scope is particularly wide-ranging as it applies to the processing of data 575 by any natural or legal persons, public authority, agency or other body (Articles 2 and 4 (7) and (8), GDPR). The Regulation sets forth a regime which applies equally on both sides of the public/ 576 private divide  . Article 3 defines the Regulation’s territorial reach : the GDPR applies (1) to a processor having a seat or a subsidiary within the Internal Market (and this, regardless of where the processing itself takes place or whose personal data are processed) 577, as well as (2) to a processor situated outside the Union as regards processing activities of data of subjects who are in the Union, related to the offering of goods or services in the Internal Market to such data subjects, or to the monitoring of the behaviour of same data subjects as far as such behaviour takes place in the European Union.   Hess, “Die EU-Datenschutzgrundverordnung und das europäische Prozessrecht”, in Festschrift Geimer (2017), pp. 255 et seq. 575  Data processing is any operation regarding the information relating to an identifiable natural person whether or not by automated means, Article 4 (1), (2) and (4), GDPR. Only purely private processing and criminal proceedings are excluded. 576   See footnote 575. Some core public activities (such as criminal investigations) are excluded, see Article 2 (2) (b) and (d), GDPR. 577   This criterion corresponds to the case law of the ECJ regarding the Data Protection Directive, cf. Gömann, CMLR 54 (2017), pp. 567, 574 et seq. 574

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Therefore, any processing of data via the Internet may be covered by the GDPR 578. Consequently, Article 44, GDPR, provides that any transfer of data to third States may not undermine the protection guaranteed by the Regulation 579. 141.  The general regulatory and protective approach is laid out by Article 6 : any data processing is unlawful unless one of the exceptions listed in this provision is met. The most important exceptions are found in Article 6 (a) and (b), GDPR : either the data subject has expressly consented to the processing or the processing is necessary for the performance of a contract to which the data subject is a party. The conditions for consent are defined in Article 7, GDPR ; according to Article 7 (3), GDPR, “the data subject has the right to withdraw his or her consent at any time” 580. Articles 12 et seq. provide for subjective rights of the data subjects 581 regarding the processing of a subject’s data, especially rights to information and access to personal data, rights to rectification, rights to erasure (Article 17, right to be forgotten), right to data portability and the right to object at any time to the processing of data for marketing purposes. (b)  Public enforcement under the GDPR 142.  The GDPR provides for a multi-tiered enforcement system of these subjective rights, which is mainly based on a combination of public and private   Kohler, Riv. dir. int. priv. e proc. (2016), 653, 654 et seq.  On the previously applicable provisions provided in Article 25 of Directive 95/46 see ECJ, 6/10/2015, C-362/14, Schrems I (safe harbour), EU :C :2015 :650. 580  Therefore, a consent to data processing must be clearly distinguished from a consent in private and commercial law which is – as a matter of principle – binding. 581  Specific protection is accorded to children by Article 8, GDPR. 578 579

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remedies 582. Thus, at the enforcement stage, the divide re-appears again. Public enforcement is addressed by Articles 51 et seq., GDPR : Member States shall provide for supervisory authorities exercising the supervisory and regulatory powers conferred by the Regulation in their territories. With regard to public enforcement, the GDPR is based on the principle of territoriality, cf. Article 55 (1), GDPR. Data protection authorities can exert large supervisory and sanctioning powers 583. Specifically, Article 83, GDPR, provides for the imposition of large administrative fines up to 10 million euros and, in the case of an undertaking up to 2 per cent of the total worldwide annual turnover of the data processor (para. 4). The data protection authorities shall closely co-operate also in cross-border settings (Articles 60 et seq.) and the cooperation shall be supported by the EU Commission in a specific consistency mechanism (Articles 64 et seq.). Individuals and businesses may trigger and control administrative proceedings and public enforcement  : each data subject has the right to lodge a complaint with a supervisory authority (Article 77 584) and may challenge the decision by administrative proceedings in the courts of the Member State where it is established (Article 78).   Kohler, Riv. dir. int. priv. e proc. (2016), 653, 666 et seq. (“complex set of remedies”). 583   Article 58, GDPR, provides for interrogative powers, corrective powers, authorization and advisory powers. Generally, Brkan, EUI Working Papers RSCAS 2015/40, pp. 21 et seq. (“administrative path”). 584  Article 77 (1), GDPR, reads as follows : “Without prejudice to any available administrative or non-judicial remedy, including the right to lodge a complaint with a supervisory authority pursuant to Article 77, each data subject shall have the right to an effective judicial remedy where he or she considers that his or her rights under this Regulation have been infringed as a result of the processing of his or her personal data in non-compliance with this Regulation.” 582

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These provisions provide for a system of public enforcement and a control by administrative courts. (c)  Private enforcement under the GDPR 143.  Alongside public enforcement, private remedies are made available, which are either injunctive or compensatory. Injunctive relief may be sought in order to implement the subjective rights of the data subject, i.e. the right to erase specific links or contents from search engines. In addition, the data subject may seek compensation for damages. In this regard, Article 82 (1), GDPR, explicitly affords compensation for not only material but also non-material damages. According to Recital 146 of the GDPR, the concept of damage should be interpreted broadly and in a manner that reflects the objectives of the Regulation 585. This reflects the case law of the ECJ with regard to the effective judicial protection of the rights of individuals conferred by Union law 586. 144. Private remedies have also been reinforced : their availability is not only conferred to individuals, but also to qualified entities to initiate collective redress 587. In this regard, Article 80 (1), GDPR, provides that each individual shall have the right to mandate a non-profit organization to lodge a complaint on his or her behalf.  Recital 146 must be understood in a way that the compensation awarded (especially for immaterial damage) shall deter future infringers from unlawful behaviour. Compensation for immaterial damage is an innovation for many Member States in the case of the infringement of data protection. This provision stands in clear opposition to Recital 13 of Directive 2014/104/EU on Cartel Damages (OJ 2014 L 349/1) which explicitly excludes “overcompensation” by “punitive and multiple” damages, see Hess, Festschrift Geimer (2017), pp. 255, 256 et seq. 586   ECJ, 6/11/2012, case C-199/11, Otis, EU :C :2012 :684, generally Wilman, Private Enforcement of EU Law before National Courts (2015), pp. 49 et seq. 587   Brkan, EUI Working Papers RSCAS 2015/40, pp. 4 et seq. 585

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In addition, EU Member States may even provide that these entities have the right to lodge collective redress proceedings even without an explicit mandate of the 588 “represented” individual (data subject)  . Therefore, Member States may permit collective lawsuits based on an opt-out system 589. 145. The procedural cross-border dimension of private enforcement is addressed in Article 79 (2), GDPR 590. This provision states : 588

 Article 80, GDPR (Representation of data subjects) reads as follows : “(1) The data subject shall have the right to mandate a not-for-profit body, organisation or association which has been properly constituted in accordance with the law of a Member State, has statutory objectives which are in the public interest, and is active in the field of the protection of data subjects’ rights and freedoms with regard to the protection of their personal data to lodge the complaint on his or her behalf, to exercise the rights referred to in Articles 77, 78 and 79 on his or her behalf, and to exercise the right to receive compensation referred to in Article 82 on his or her behalf where provided for by Member State law. (2) Member States may provide that any body, organisation or association referred to in paragraph 1 of this Article, independently of a data subject’s mandate, has the right to lodge, in that Member State, a complaint with the supervisory authority which is competent pursuant to Article 77 and to exercise the rights referred to in Articles 78 and 79 if it considers that the rights of a data subject under this Regulation have been infringed as a result of the processing.”

  This solution even goes beyond the realm of opt-out collective redress remedies since it does not require any lead plaintiff. In fact, the qualified entity will have its own standing in the civil proceedings. 590  This article is aligned to Recital 142, which states that the provisions of the Brussels I bis Regulation remain applicable as long as they don’t interfere with the GDPR. This provision is highly unclear, Kohler, Riv. dir. int. priv. e proc. (2016), 653, 668 et seq. 589

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“(2) Proceedings against a controller or a processor shall be brought before the courts of the Member State where the controller or processor has an establishment. Alternatively, such proceedings may be brought before the courts of the Member State where the data subject has his or her habitual residence, unless the controller or processor is a public authority of a Member State acting in the exercise of its public powers.” 146.  Article 79 (2), GDPR, entails considerable deviations from the Brussels I bis Regulation 591. On the one hand, it opens up additional heads of jurisdiction, especially with regard to third State defendants : a data processor cannot only be sued at its domicile, but also in the Member State where its establishment is located 592 as prescribed by Article 27, GDPR  . Furthermore, Article 79 (2), GDPR provides for the jurisdiction at the habitual residence of the data subject, therefore creating a powerful “forum actoris” 593. This exorbitant head of jurisdiction is further reinforced by Article 80, GDPR, which empowers qualified entities to bring actions under all heads of jurisdiction of Article 79 (2), too 594. Finally, as the Article 79 (2), GDPR, provides for mandatory   Brkan, EUI Working Papers RSCAS 2015/40, pp. 11 et seq. (discussing possible jurisdictional bases for data protection under the Brussels I bis Regulation). See also supra at paras. 55 et seq. 592   Kohler, Riv. dir. int. priv. e proc. (2016), 653, 668. Recently, the ECJ enlarged the concept of the establishment and held that not only direct, but also grandchild subsidiaries qualify as subsidiaries in EU law, ECJ, 18/5/2017, Case C-617/15, Hummel Holding, EU :C :2017 :390 (addressing the protection of trade marks under Article 97 (1) of the Regulation (EC) No. 207/2009). 593   Kohler, Riv. dir. int. priv. e proc. (2016), 653, 669. 594   This issue was raised in the so-called Schrems II case (C-498/16), see supra at para. 64 ; the ECJ, 25/1/2018 did not permit a collective claim under Articles 15 and 16 of the Brussels Regulation, EU:C:2018:37, paras. 42 et seq. 591

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heads of jurisdiction, data processors cannot derogate from them by providing for choice of court agreements 595. The jurisdictional regime reflects the regulatory approach of the GDPR which is aimed at the effective enforcement of the data protection rights. However, the jurisdictional regime is subject to one limit : public authorities of a Member State acting in the exercise of their public powers cannot be sued under Article 79 (2), GDPR – they must be sued at the competent courts of their home State. Here, the private-public divide comes into play, again 596. 147.  The multitude of heads of jurisdiction combined with the possibility of bringing collective actions entails the danger of parallel and overlapping proceedings. In this respect, Article 81, GDPR, provides for the following solution : in case of parallel proceedings concerning the same subject matter, the courts seised shall immediately contact each other, Article 81 (1). When the proceedings concern the same subject matter, the court seised first shall hear the case and all other courts shall suspend the proceedings. Furthermore, pursuant to Article 81 (3), GDPR, the proceedings brought in different States may be consolidated if the procedural law of the court first seised allows such consolidation. Obviously, the purpose of this provision is to facilitate a better co-operation of courts in the European Judicial Area. However it seems to be too optimistic : so far, the domestic rules of civil procedure of the EU Member States do not provide for any rules on the cross-border consolidation of proceedings (a practice which has no tradition in Continental Europe). When it comes to collective proceedings, the main issue does   Kohler, Riv. dir. int. priv. e proc. (2016), 653, 669 (criticizing the imprecise formulation of Recital 145). 596  The exception of Article 79 (2), GDPR, should also be applied to public authorities in third States – this provision is modelled after the delineation of commercial and noncommercial activities in the context of sovereign immunity, see supra at paras. 23 et seq. 595

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not lie in the identity between the claims, but rather in the connectedness of the proceedings 597. In this regard, Article 28 of the Brussels I bis Regulation provides for a residual, hardly convincing, regime which only permits a discretionary stay of related proceedings which were filed at a later stage. This solution might be appropriate in individual two-party proceedings, whereas staying collective proceedings in order to await the outcome of parallel (possibly individual) proceedings might be much more difficult and burdensome for the parties 598. 148.  The procedural provisions at Articles 78 et seq., GDPR, do not address the recognition of foreign judgments. However, in Chapter V (on data transfers) Article 48, GDPR, expressly forbids any recognition (and enforcement) of administrative and judicial decisions from third States which do not comport with the standards of the Regulation. This blocking provision exemplifies the unilateral regulatory approach of the GDPR 599. Literally applied, this provision could bar any request from courts and other authorities of third States for the transfer of documents (unless the Commission rendered beforehand an adequacy decision, see below under paragraph 149). Yet, one has to consider the context of this provision, which is mainly addressing the transfer of data to third countries. Therefore, an adequacy decision of the EU Commission may ultimately permit the recognition of a foreign order – but the targeted data subject may   Hess, “A Coherent Approach to European Collective Redress”, in Fairgrieve and Lein (eds.), Extraterritoriality and Collective Redress (2012), pp. 107, 115 et seq. 598  A better solution might be a stay of the individual proceedings until the collective claims have been decided. This solution is found in Section 8 of the German Act on Master Proceedings. 599   Kuner, “The Internet and the Global Reach of EU Law”, LSE, Law, Society and Economy Working Papers 4/2017, p. 26 (“blocking statute”). 597

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challenge the appropriateness or lawfulness of the adequacy permission 600. (d)  Data transfer to third States 149. Chapter V of the Regulation addresses the transfer of data to third countries or to international organizations 601. According to Article 44, GDPR, no transfer of data to third countries shall circumvent the level of protection ensured by the Regulation. However, transfer of data may take place on the basis of a so-called adequacy decisions of the EU Commission (Article 45 (1), GDPR) 602. These decisions require the Commission to make an overall assessment of the adequacy of the level of protection in the third country (Article 45 (2), GDPR), which might include consultations with the competent authorities in this country (Article 45 (6), GDPR) 603. On the basis of an adequacy decision, data 604 exchanges with third countries may take place  . However, adequacy decisions of the Commission may be challenged in the competent courts of EU Member States and may be reviewed by the ECJ 605. Nevertheless,   ECJ, 6/10/2015, C-362/14 Schrems I, EU :C :2015 :650, paras. 64-65 ; ECJ, 26/7/2017, Opinion 1/15, EU :C :2017 : 592, paras. 218 et seq. 601   Articles 44-50, GDPR ; this regulatory approach largely borrows from the regulatory model in financial markets, see Scott, CMLR 51 (2014), pp. 1343, 1364 et seq. 602   Kuner, “Reality and Illusion in EU Data Transfer Post Schrems”, German LJ 18 (2017), 881, 904 et seq. 603  The EU Commission is obliged to monitor developments in third countries and to adapt the adequacy decision to subsequent changes in the circumstances, (Article 45 (4) and (5), GDPR). 604  If an adequacy decision is not possible, data might still be transferred under Article 26 (“adequate safeguards”) or Article 27 (“derogations”), Kuner, German LJ 18 (2017), 881, 906 et seq. 605  According to the ECJ, Member States must provide legal remedies enabling data protection agencies to raise before 600

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the Regulation provides for a negotiation process to conclude bilateral agreements between the Union and third countries in order to mitigate the extraterritorial reach of EU data protection law 606. In this respect, the ECJ has clearly stated that the minimum standards of protection as foreseen by the CFR and EU secondary law cannot be easily relinquished and are subject to the full control of national data protection agencies and of the Court of Justice 607. As a result, the legal uncertainties surrounding the data transfer to third countries have led providers of Internet data services to locate their data centres in the European Union in order to avoid restrictions on international data transfer under EU law 608. 150. In cross-border settings, the parallelism of public and private remedies provided by the GDPR and its extraterritorial reach will open the door to interesting strategies : for instance, a public authority might be interested to seek enforcement of an injunction against a data processor at the seat of the processor (in a third State). In this case, the authority may simply ask a qualified entity to initiate infringement proceedings under Article 80 (2), GDPR, which does not require any mandate of individual data subjects. Where the entity the courts objections that they consider well founded in order to set in motion a reference to the ECJ on the validity of the Commission decision, ECJ, 6/10/2015, C-362/14, Schrems I, EU :C :2015 :650, para. 65. 606  One example is the so-called European Union-United States Privacy Shield of February 2016, see Kuner, German LJ 18 (2017), 881, 883 et seq., and 917 et seq. ; ECJ, 26/7/2017, Opinion 1/15, EU :C :2017 :592. 607  This case law has been confirmed and reinforced by Article 44, GDPR. ECJ, 6/10/2015, C-362/14 Schrems I, EU :C :2015 :650, Kuner, German LJ 18 (2017), 881, 904. 608  This corresponds to the regulatory intention of the GDPR, Kuner, “The Internet and the Global Reach of EU Law”, LSE, Law, Society and Economy Working Papers 4/2017, p. 25.

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brings a lawsuit for the compensation of damages, one might wonder whether this claim qualifies as civil – as long as the sums obtained are not paid to the individual victims of the infringement. Otherwise, the sum might qualify as an atypical administrative fine. In addition, the entity might seek for an injunction against the data processor at its seat or in the EU Member State where the subsidiary of the third State defendant has its seat 609. 151.  Thus far, the genuine cross-border effects of the “public-private attorney” concept 610 have not been tested, yet. Usually, these claims are brought as civil actions for damages – their recognition has been contested neither under the Brussels I bis Regulation nor by the autonomous laws of the EU Member States. Recent developments show a trend of permitting the recognition of US class actions (even based on an opt-out system) by European courts 611. The recent case law of the ECJ on the material scope of the Brussels I bis Regulation 612 might favour the application of the GDPR in the jurisdictional framework of the Brussels I bis Regulation. As a result, the boundaries of the private-public divide become progressively more blurred. Public authorities might more often use private law remedies for the enforcement of public interests in cross-border settings. However, Article 79 (2), GDPR, sets a clear limit to civil lawsuits against public authorities of other EU Member States : such authorities cannot be sued in the courts of other Member States. As a result, the private-public divide has been maintained, and the GDPR clearly distinguishes   Hess, Festschrift Geimer (2017), pp. 255, 262 et seq.  See supra at paras. 63 et seq. 611  Court of Appeal, Ghent, judgment of 27/3/2017, supra at footnote 30 ; see generally Fairgrieve, “The Impact of the Brussels I Enforcement and Recognition Rules on Collective Action”, in Fairgrieve and Lein (eds.), Extraterritoriality and Collective Redress (2012), pp. 171 et seq. 612   Supra at paras. 54 et seq. Same opinion Brkan, EUI Working Papers RSCAS 2015/40, pp. 7 et seq. 609 610

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private and administrative litigation paths. However, this does not exclude that such litigation paths are used in a complementary way by both private litigants and public authorities. C.  Cross-Border Enforcement of Private Claims by Public Authorities 152.  The international co-operation between national courts in civil and commercial matters 613 was always dependent on the support by public authorities such as ministries of justice and foreign affairs and of embassies located in other jurisdictions : The service of a lawsuit in a foreign country, the hearing of a witness by a consul on foreign soil, or the transmission of a judgment required the support of requested authorities 614. Initially, this interchange was based on international treaties and on comity. Over time, the methods of international judicial and extra-judicial co-operation have been refined and especially the Hague Conference on Private International Law has conceived and developed a multitude of international conventions in order to overcome formalistic burdens in this area of law 615. Modern judicial co-operation and interchange is based on direct communication between courts and competent authorities, standard forms and modern communication tools are regularly and largely used. The role of central 616 authorities has been constantly reinforced  . These  The private-public paradigm is also applied in this area of law although there is a trend to interpret the concept broadly, Schack, Internationales Zivilverfahrensrecht (7th ed., 2017), para. 679. 614   Schlosser, Recueil des cours 284 (2000), 13 et seq. 615   Schack, “Hundert Jahre Haager Konferenz für IPR”, RabelsZ 57 (1993), 224 et seq. 616   Hess and Spancken, “The Operation of the Maintenance Regulation in the Member States”, in Beaumont et al. (eds.), The Recovery of Maintenance in the EU and Worldwide (2014), pp. 385, 400 et seq. 613

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administrative organs are not only competent to receive and transmit requests for judicial and extra-judicial interchange, they have also become self-standing actors for the cross-border enforcement of private claims, especially in family matters. As a result, a paradigm shift took place from international judicial assistance based on sovereignty and territoriality to judicial co-operation based on direct interchanges via modern means of communication 617. 1. Administrative co-operation with regard to the protection of children 153.  International family law has served as the pacemaker of the new development. With regard to the protection of children, both the 1996 Hague Convention on the International Protection of Children 618 and the 1980 Hague Convention on International Child Abduction 619 have extended the tasks and strengthened the role of central authorities which conduct the proceedings for the (often overburdened) parties, from the stage of initiation of proceedings until the enforcement stage. As a result, the Central Authorities have been provided with far-reaching competences to obtain and exchange information and to assist the vulnerable party (or parties).

  Hess, in Gottwald and Hess (eds.), Procedural Justice (2014), pp. 387 et seq.   Convention on the Civil Aspects of International Child Abduction of 25 October 1980. As of 12/8/2017, the Convention has been ratified by 98 States, https ://www. hcch.net/en/instruments/specialised-sections/childabduction/. 619   Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children. As of 12/8/2017, the Convention has been ratified by 46 States. 617 618

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154.  The first instrument of private international law which provides for a far-reaching co-operation of Central Authorities was the Hague Child Abduction Convention of 1980. This Convention applies to situations of family crises where one parent takes the common child(ren) (aged under 16 years) to another Contracting State without the consent of the other parent 620. The Convention provides for an accelerated return mechanism of the child(ren) to the former State of its habitual residence. Usually, habitual residence of the child is a commonly accepted head of jurisdiction for custody matters. The premise of the Abduction Convention is that the authorities in the State of the child’s habitual residence shall make the proper decision on the questions of parental responsibility 621. Therefore, the Convention provides for an accelerated return procedure in the State of the child’s physical presence in order for the child to be reverted to the State of its habitual residence 622. 155. The Convention does not specify whether the return proceedings must be judicial or administrative. In most States, however, proceedings in family matters are heard by courts and the Convention addresses civil aspects of child abduction. The central idea of the Convention is that the left-behind parent may immediately apply  The scope of the Abduction Convention is broader than its title as it covers equally wrongful abductions and wrongful retentions. 621   Silberman, “Co-operative Efforts in Private International Law on Behalf of Children : The Hague Children’s Conventions” Recueil des cours 323 (2006), 261, 301 et seq. 622  The central provision is Article 12 (1) of the Convention which reads as follows : “Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.”

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for the return of the child 623. In order to facilitate the proceedings, Article 6 of the Convention obliges the States parties to establish a Central Authority which shall support the applicant in the cross-border proceedings 624. In this respect, the Convention distinguishes two situations : responsibilities with regard to outgoing cases where children have been taken to another country 625 and responsibilities in incoming cases where the child is now in the country of the Authority as a result of a wrongful detention or retention 626. In both instances, the Central Authorities shall closely co-operate in order to secure the prompt return of the children 627. Article 7 (2) of the Convention describes the responsibilities of the Central Authorities as follows : “In particular, either directly or through any intermediary, they shall take all appropriate measures – (a)  to discover the whereabouts of a child who has been wrongfully removed or retained ; (b)  to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures ;  According to Article 8, the parent may file an application for the return of the child either with the Central Authorities at his home State (being a State of the habitual residence of the child) or in the State where the child is found, Hess, in Gottwald and Hess (eds.), Procedural Justice (2014), pp. 387, 412 et seq. 624  In Germany, the Federal Office of Justice acting as Central Authority is empowered to directly contact any authority (in Germany or abroad) to get information or support. 625  In this situation, the Central Authority shall support the applicant and request assistance from the country to which the child is taken. 626  In this instance, the Central Authority in the requested State shall help to locate and return the child. 627  Article 7 (1), Abduction Convention, cf. Silberman, Recueil des cours 323 (2006), 261, 318 et seq. 623

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(c)  to secure the voluntary return of the child or to bring about an amicable resolution of the issues ; (d) to exchange, where desirable, information relating to the social background of the child ; (e)  to provide information of a general character as to the law of their State in connection with the application of the Convention ; (f)  to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access ; (g)  where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers ; (h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child ; (i)  to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.” 156.  This enumeration demonstrates how deeply the Central Authorities are involved in the return processes although the operative decisions on the substance of the cases are made by the competent judicial authorities 628. Of course, their involvement depends on the circumstances of the given case : it may be that the Central Authorities only facilitate the process by assisting a party in filing 628

 According to statistics published in 2011 by the Hague Conference, 1961, return applications from 54 States were received in 2008. In 2003, 1,259 applications were received. See Prel. Doc. No. 8 A (update) of November 2011 for the attention of the Special Commission of June 2011 on the practical operation of the 1980 Hague Child Abduction Convention and the 1996 Hague Child Protection Convention, available at www.hcch.net.

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a claim or in arranging mediation with the other parent. But it also occurs that the Central Authorities institute the return proceedings and secure the return of the child. In addition, Central Authorities have extensive powers of investigation, especially when they are requested to locate the child 629. Here, they shall closely co-operate with the local police and administrative authorities. Overall, the role of the Central Authorities remains a supportive one : they shall facilitate the return of children which is based on a private law remedy 630. 157.  The 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children is much broader in scope than the Abduction Convention as it addresses the whole area of the protection of children in cross-border settings. It provides a framework for the resolution of disputes on custody and contact when the parents are separating and living in different countries. In this regard, the Convention addresses jurisdiction and judicial co-operation, the recognition of decisions and applicable law. Articles 8-10 permit the transfer of jurisdiction to the courts of another Contracting State better placed to assess the best interests of a child. The application of these rules implies prior communication and interaction between the courts involved in the process. In addition, specific attention is given to the situation of unaccompanied   The Brussels I  bis Regulation has intensified the cooperation among and the role of Central Authorities, see Hess, in Gottwald and Hess (eds.), Procedural Justice (2014), pp. 387, 412 et seq. 630   Silberman, Recueil des cours 323 (2006), 261, 323. It must be noted that, in practice, the 1980 Convention has not proved to provide for sufficiently effective remedies. This was the main reason why the Brussels II bis Regulation reinforced the return procedures within the European Judicial Area, cf. Hess, Europäisches Zivilprozessrecht (2010), § 7 IV, paras. 87 et seq. 629

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minors (Article 6) and to the cross-border placement of children (Articles 11 and 12). The co-operation between the judicial authorities is reinforced by Chapter V on the Co-operation of Central Authorities (Articles 29-39) which shall assist the parties and courts in proceedings by providing for information and practical support (e.g. by reporting the situation of a child or by requesting the competent authority of its own State to take measures for the protection of the person or the property of the child). However, the obligations under the 1996 Convention are much more amorphous than those under the Abduction Convention  ; the main responsibility of the Central Authorities is to facilitate communication and exchanges of information in cross-border family proceedings 631. Nevertheless, the co-operation of the Central Authorities under the 1996 Convention was based on the model of the 1980 Convention 632. 2. Administrative co-operation with regard to maintenance claims 158. The cross-border enforcement of maintenance claims is characterized by a long-standing trend of involving public authorities. In this field, States have a strong interest in the enforcement of private claims because, otherwise, maintenance creditors (often abandoned women with young children) must resort to public welfare assistance 633. Against this background, the cross-border recovery of maintenance has always   Silberman, Recueil des cours 323 (2006), 261, 425 et seq.   Hess, in Gottwald and Hess (eds.), Procedural Justice (2014), pp. 387, 412-413. 633   Hess, Europäisches Zivilprozessrecht (2010), § 7 V, paras. 96 et seq. ; Gallant, “Coopération d’autorités et récouvrement international des aliments”, JIPL 2 (2012), 54 et seq. ; Schlosser, Recueil des cours 284 (2000), 13, 284 et seq.

631 632

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been an area of international co-ordination and crossborder co-operation among public bodies 634. 159.  The latest developments are found in the 2007 Hague Child Support Convention (HCSC) and its Additional Protocol which provide for a new dimension in the involvement of Central Authorities in the cross-border recovery of maintenance claims. At the European regional level, the Child Support Convention has been reinforced by the EU Maintenance Regulation of 18/12/2008 635 (Reg. 4/2009) which provides for a broader scope of application as it covers all forms of maintenance 636. Within the European Union, the Maintenance Regulation supersedes the Child Support Convention. 160.  The functions and responsibilities of the Central Authorities are described at Articles 4-12 of the Child Support Convention and Articles 49-58 of the Mainte637 nance Regulation, respectively  . Both instruments distinguish general and specific functions. The latter are listed in Articles 6, HCSC, and 51, Reg. 4/2009. Central Authorities are explicitly empowered to institute proceedings and to facilitate the institution of proceedings. However, they are not empowered to exercise   The international co-operation between Central Authorities had already been addressed by the former Hague conventions on maintenance of 1956 and 1973, Hess and Spancken, in Beaumont et al. (eds.), The Recovery of Maintenance in the EU and Worldwide (2014), pp. 385, 400 et seq. 635  Council Regulation (EC) No. 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and co-operation in matters relating to maintenance obligations, OJ 2009 L 7/1 et seq. 636   Hess, Europäisches Zivilprozessrecht (2010), §  7 V, paras. 102 et seq. 637  With regard to the exchange of information and the direct co-operation among the Central Authorities the Regulation goes further than the Convention, Hess and Spancken, in Beaumont et al. (eds.), The Recovery of Maintenance in the EU and Worldwide (2014), pp. 385, 403 et seq. 634

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powers that can be exercised only by judicial authorities under the law of the requested Member State (Article 51 (3), Reg. 4/2009). The main functions of the Central Authorities relate to the identification of the location of the debtor (or creditor), to collect information on the debtor’s income, to encourage amicable solutions, to assist in establishing parentage and to supervise and control the enforcement process. Article 52, Reg. 4/2009, confers to the Central Authorities the power of attorney in order to represent the debtor in the court proceedings. 161. These functions demonstrate that the Central Authorities operate as administrative bodies within the civil judicial systems of the respective Contracting and EU Member States 638. The international instruments on maintenance do not provide for a self-standing administrative system of cross-border public law enforcement. However, the involvement of the public bodies in the recovery processes implies that the procedural initiative of the individual debtor can be largely substituted by the self-standing activities of the Central Authorities once they get the information about the outstanding debts. Yet, the co-operation system of public bodies still has an optional character : parties may resort to it but they may also enforce their claims on their own. 162.  Article 36, HCSC, and Article 64, Reg. 4/2009, provide for an interesting extension of the enforcement systems  : these provisions permit public bodies to recover reimbursement claims639. These claims include  Already under the Brussels Convention, the ECJ permitted lawsuits of public bodies for the recovery of alimony paid by social assistance, ECU, 14/11/2002, case C-271/00, Baten, EU  :C  :2002  :656, para. 37  ; 15/1/2004, case C-433/01, Blijdenstein, EU :C :2004 :21, para. 20. 639  Article 64 (public bodies as applicants) reads as follows : “(1) For the purposes of an application for recognition and declaration of enforceability of decisions or for the purposes of enforcement of decisions, the term ‘creditor’ shall include a public body acting in place of an individual to

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maintenance claims which they acquired by legal subrogation or by an assignment via an administrative decision 640. Furthermore, they may also bring claims for the reimbursement of costs for social assistance payments and for institutional care. These claims are not private, but public claims. Nevertheless, the ECJ had already held that measures for the protection of children ordered by public authorities are covered by the Brussels II bis Regulation although the Regulation only applies to civil matters 641. In a similar vein, Article 36, HCSC, and Article 64 of Reg. 4/2009 extend the private whom maintenance is owed or one to which reimbursement is owed for benefits provided in place of maintenance. (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3) A public body may seek recognition and a declaration of enforceability or claim enforcement of : (a) a decision given against a debtor on the application of a public body which claims payment of benefits provided in place of maintenance ; (b) a decision given between a creditor and a debtor to the extent of the benefits provided to the creditor in place of maintenance.” 640   Subrogation or legal assignment take place when the public body provides maintenance or social benefits (social assistance) to the creditor, Martiny, “Jurisdiction, Recognition and Enforcement in Cases of Reimbursement Claims by Public Bodies”, in Beaumont et al. (eds.), The Recovery of Maintenance in the EU and Worldwide (2014), pp. 485, 488 et seq. 641   ECJ, 26/4/2012, case C-92/12, PPU, Health Service Executive, EU :C :2012 :255, paras. 56 et seq., 60 (concerning the placement of a child in institutional care in another Member State), ECJ, 2/4/2009, case C‑523/07, A, EU :C :2009 :225, para. 29 (placement of a child in a foster family). ECJ, 27/11/2007, case C-435/06, C, EU : C :2007 :714 (placement of children into care outside the family house – decision by an administrative body). As a result, the Court stated that the concept of “civil matter” in Article 1 (1) of the Regulation should be given a broad meaning including all decisions related to the protection of children even when these decisions are qualified as public law decisions under the domestic law of the Member States.

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enforcement regime of the Regulation to the cross-border recovery of public law claims by public bodies. In fact, pursuant to these provisions public bodies are entitled to the same services and (even) the same legal aid as private creditors. This goes to show that private law instruments can be used for the cross-border enforcement of public claims 642.

642

  Martiny, in Beaumont et al. (eds.), The Recovery of Maintenance in the EU and Worldwide (2014), pp. 485, 493 et seq.

CHAPTER V

PROCEDURAL CHALLENGES AND CHANGES : COMMERCIAL VERSUS PUBLIC LAW DISPUTE SETTLEMENT A.  International Commercial Arbitration 1.  Arbitration as private dispute resolution 163. The most common and most successful way of settling international commercial disputes is through arbitration. As mentioned earlier, under the New York Convention recourse to international arbitration has increased considerably and is largely regarded as the most convenient way for resolving crossborder commercial disputes 643. The NYC itself is not confined to commercial disputes 644 and, therefore, it is also used for arbitration involving claims arising out of public international law 645 or of national public  It must be mentioned that the high costs of international commercial arbitration entail that only high-value disputes are decided by arbitral tribunal – smaller claims either go to litigation or are simply forsaken. 644   Note, however, that under Article I (3), NYC, States parties may declare that they will apply the Convention only to differences arising out of legal relationships, whether contractual or not, that are considered commercial under the national law. However, 48 out of 157 signatories of all States (almost 30 per cent) made such a declaration, including the United States of America. 645   Numerous examples concern investment disputes, see Reisenfeld and Robbins, “Finality under the Washington and New York Conventions  : Another Swing of the Pendulum ?”, ICSID Review 32 (2017), 371, 374 (referring to recent NYC cases on investment protection – including Yukos). Investment disputes have often been qualified as “commercial” in the sense of Article I (3), NYC, 643

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law 646. Yet, most of the disputes decided under the NYC are purely commercial cases. The New York Convention itself was initiated by the ICC and negotiated under the auspices of the United Nations Economic and Social Council 647. The NYC mainly addresses (and guarantees) the recognition of arbitral awards and the enforcement of arbitration clauses. UNCITRAL complemented the Convention with a Model Law on Arbitration and with the UNCITRAL Arbitration Rules which are also often used in ad hoc inter-State and investor-State arbitrations 648. 164. International commercial arbitration is based on party autonomy. Thus, the parties exercise a strong influence on the whole process 649 : parties choose and cf. Czech Republic v. CME Czech Republic BV (2003), Case No. T 8735-01, ICSID Report 9 (2004), 439 (Svea Court of Appeal). At present, almost 10 per cent of all cases administered by the ICC concern disputes where one party is a State or public authority, Böckstiegel, “Commercial and Investment Arbitration : How Different Are They Today ?”, Arb. Int’l 28 (2012), 577, 581. 646   Example  : The Max Planck Institute, Luxembourg, is organized as a private foundation, generously financed by the Grand Duchy of Luxembourg. Therefore, considerable fiscal interests are implied in the Agreement between the Max Planck Society (a private association under German law) and the Ministry of Higher Education of the Grand Duchy. In 2014, the Luxembourgish Parliament adopted a specific law on the funding of the MPI. Yet, the foundational agreement contains an arbitration clause to the ICC Paris. However, the subject matter of a potential dispute would mainly relate to the public laws of the Grand Duchy and not to the private status of the MPI. 647   The legislative history is described by Grisel, “TreatyMaking between Public Authority and Private Interests : The Genealogy of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards”, EJIL 28 (2017), 73 et seq. 648  Example : The Iran-United States Claims Tribunal, supra at para. 95. 649   Pfeiffer, “Funktion, Bedarf und Legitimation einer nichtstaatlichen Schiedsgerichtsbarkeit”, in Bitburger Gespräche

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appoint the arbitrators ; they agree on the procedure, they determine the law to be applied on the merits. The parties decide whether the hearings are public and whether the award will be published 650. Overall, the dispute resolution system is considered a private service rendered for the parties. With regard to institutional arbitration, there is a strong tendency to disconnect the process as far as possible from the control of State courts. Today, arbitral institutions support the appointment of arbitrators 651, provisional remedies are available even before the arbitral tribunal is constituted, and the arbitration institutions controls the quality of the award in order to avoid that the award is set aside by State courts 652. 165.  Although international commercial arbitration is largely detached from the control of State courts, important interfaces still remain. There are three main interfaces where State courts may intervene : at the beginning of the proceedings when a party invokes the invalidity of the arbitration clause before State courts, at the enforcement stage when one party seeks the recognition of the award, and in annulment proceedings of the award in the State of the seat of the arbitration. These are mainly found in Articles V and II, NYC 653 : Article V, NYC, provides for several grounds of non-recognition of the arbitral award. (2016), pp. 13, 16 et seq. ; Scherer, Arb. Int’l 32 (2016), 437 et seq. 650  Confidentiality is often agreed in international commercial arbitration, Born, International Arbitration, Vol. II (2014), §  20, pp. 2779 et seq., who nevertheless qualifies the issue as a “contentious and unsettled subject”. 651  Also, institutions decide on challenges to arbitrators and under some national laws, like Swiss private international law. Whenever institutional challenge is available, challenge before the juge d’appui becomes unavailable. 652   Gaillard, Recueil des cours 329 (2007), 53, 176 et seq. 653  Article II and V, NYC, address the arbitration clause and the recognition process. Annulment proceedings are (still) a matter of the national laws of the seat of the arbitration tribunal.

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Important grounds relate to the subject matter not being capable of settlement by arbitration 654, to the lack of an arbitration agreement among the parties 655 and to public policy 656. In addition, Article V (1) (d), NYC, provides for procedural minimum standards to be observed in the arbitration process. However, the residual control of the arbitral award by State courts depends on the initiative of the (losing) party in the arbitration : the party may ask for the annulment of the award in the State where the award was made 657 or may resist the recognition of a foreign arbitral award at the enforcement stage under Article V (1), NYC. In addition, the defences contained in Article V (2), NYC, are considered ex officio by the enforcing State court 658. It goes without saying that the arbitral tribunal will pay due attention to controlling standards potentially applicable at the setting aside and/ or recognition stage 659.  Article V (2) (a), NYC, referring to the law of the State of recognition and enforcement.  Article V (1) (a), NYC, refers to the law chosen by the parties or to the laws of the country where the award was made, see Schramm, Elliot and Pinsolle, in Kronke et al. (eds.), Recognition and Enforcement of Foreign Arbitral Awards (2010), Art. II, NYC, pp. 69 et seq. 656  Article V (2) (b), NYC, see Otto and Elwan, in Kronke et al. (eds.), Recognition and Enforcement of Foreign Arbitral Awards (2010), Art. V (2), NYC, pp. 365 et seq. 657  The NYC does not address this situation. Modern national arbitration laws, especially those following Article 34 of UNCITRAL Model Law on Commercial Arbitration, transpose the grounds of non-recognition of Article V, NYC (with the exception of Article V (1) (e) ) to the annulment of arbitral awards, Schlosser, in Stein and Jonas, Section 1059, ZPO (Commentary, 23rd ed., 2014), para. 1. 658  In this respect, also the winning party bears the risk that the recognition of the arbitral award is refused. 659  Andrews, “Global Perspectives on Commercial Arbitration”, in Gottwald and Hess (eds.), Procedural Justice (2014), pp. 537, 589 et seq. ; Radicati di Brozolo, “Arbitrage commercial international et lois de police : consi654 655

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166.  Article II, NYC, comes into play when one party initiates court proceedings and the other party invokes the arbitration clause. In this situation, a State court may assess the validity of the arbitration clause and whether the dispute at hand falls under the scope of the clause 660. However, the procedural control laid down at Article II, NYC, operates differently between State courts and the arbitral tribunal : where the arbitral tribunal has already been constituted, the tribunal decides whether it is competent to hear the dispute 661. Before the composition of the arbitral tribunal, the State courts usually decide on the validity of the clause and the competence of the arbitral tribunal to hear the case 662. However, in some jurisdictions, especially in France 663, parties must first seek a decision of the arbitral tribunal on its competence as the control of the State courts only operates a posteriori (in annulment proceedings 664 or in the context of Article V (1) (a), NYC 665). dérations sur les conflits de juridictions dans le commerce international”, Recueil des cours 315 (2005), 3, 483 et seq. 660   Born, International Arbitration (2014), Vol. I, § 7.01. 661  So-called competence-competence, Born, International Arbitration (2014), Vol. I, § 7.05. 662   For a comparative overview, cf. Schramm, Elliot and Pinsolle, in Kronke et al. (eds.), Recognition and Enforcement of Foreign Arbitral Awards (2010), Article II NYC, pp. 95 et seq. 663   Kessedjian, Droit du commerce international (2013), p. 979. 664  A prominent example was the setting aside of the Yukos 50 billion US dollars award against Russia by The Hague District Court, 20/9/2016, Case No. C/09/477160/HA, Russian Federation v. Veteran Petroleum Ltd. and Others in annulment proceedings. 665  See the contradicting judgments in Dallal v. Pakistan where the claimant had obtained an arbitral award against the Pakistani Government resulting out of a contract to build houses for pilgrims in Mecca. The UK Supreme Court refused to recognize the award on the ground that, as a matter of French arbitration law, the Pakistani Government

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2. The governance of international commercial arbitration 167.  In the legal literature, the ability of commercial arbitration to establish a self-standing system of governance has sometimes been contested. Some authors 666 consider international commercial arbitration as a purely “private” mechanism of dispute resolution operating without any precedent or jurisprudence constante 667. However, this assumption is misleading. On the one hand, there is a growing corpus of case law and published awards 668. Arbitral tribunals build on this case law by quoting other awards 669. The whole discussion in international arbitration about transnational legal was not bound by the arbitration agreement, [2010] UKSC 46. Three months later, the Paris Court of Appeal upheld the award and declared it enforceable under French law, CA Paris, 17/2/2011, Rev. arb. (2011), 286. 666   Roberts, AJIL 107 (2013), 45, 62 et seq. ; Schill, in idem (ed.), International Investment Law and Comparative Public Law (2010), pp. 3, 11 ; van Harten, Investment Treaty Arbitration and Public Law (2007), pp. 58 et seq. 667   Roberts, AJIL 107 (2013), 45, 66 et seq. : “Following an international commercial arbitration approach the sole or at least primary function of arbitral tribunals is the resolution of a particular dispute between the disputing parties, not the development of a substantive body of law.” However, it must be noted that the primary objective of investment arbitration is equally the fair and first resolution of the dispute, cf. Schultz, “Against Consistency in Investment Arbitration”, in Douglas, Pauwelyn and Viñuales (eds.), The Foundations of International Investment Law : Bringing Theory into Practice (2014), pp. 297, 306 et seq. 668  For a compilation of the most important sources of reference see Born, International Arbitration (2014), Vol. I, § 1.06 (pp. 218-224). 669  As far as State law is applicable, arbitral tribunals quote the case law of national courts and – of course – not arbitral awards, cf. Kaufmann-Kohler, Arb. Int’l 23 (2007), 357, 364 et seq.

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concepts (lex mercatoria, international arbitral order 670) is based on the assumption that international commercial arbitration tribunals have already developed an autonomous legal order by means of their case law 671. One might wonder whether there is really an “arbitral order” 672 within international commercial arbitration ; but there is definitely a common understanding of the arbitration community regarding the methods of applying and interpreting the applicable law (including arbitral public policy 673), but also the procedural due process standards to be applied 674. Furthermore, a more differentiated view on “commercial arbitration” might be needed as arbitration covers different sectors. There are sectors where past awards are more often regarded (i.e. sports arbitration 675 and maritime arbitration 676) than in   Gaillard, “International Arbitration as a Transnational System of Justice”, in van den Berg (ed.), Arbitration – The Next 50 Years (2012), pp. 66 et seq. 671   Gaillard, Recueil des cours 329 (2007), 53, 91 et seq. (who considers the lex mercatoria as a method, not a legal system). 672  Lord Mance, “Arbitration : A Law unto Itself ?”, Arb Int’l 32 (2016), 223, 228 et seq. 673  This principle was expressed by the sole arbiter Lagergren in ICC Award 1110 (1963) in a case concerning the bribery of Algerian officials. The award held : “It cannot be contested that there exists a general principle of law recognized by civilized nations that contracts which seriously violate bonos mores or international public policy are invalid or at least unenforceable and that they cannot be sanctioned by courts or arbitrators.” As a result, the arbitral tribunal declared the contract null and void. 674   Heiskanen, Book Review of Gaillard, Aspects philosophiques, EJIL 20 (2009), 940, 945 et seq. 675   Kaufmann-Kohler, Arb. Int’l 23 (2007), 357, 365 et seq. 676  Even in maritime arbitration, there is no uniform practice. Arbitral Awards made under the Society of Maritime Arbitrators in New York are anonymized and summarized by the Society while awards made under the rules of the 670

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other ones 677. Against this backdrop, the assertion that commercial arbitration is solely about the resolution of single cases 678 is simply wrong. 168. Furthermore, arbitral tribunals are not necessarily bound by the law chosen by the parties insofar as they must apply mandatory law – even in cases where the parties want to deviate from it 679. This phenomenon has been described as arbitral public policy forming an inherent part of the international arbitral order 680. Even if one does not follow this conceptual approach 681, there is no doubt that an arbitral tribunal will (as a rule) apply mandatory law (lois de police) in order to avoid that the award will not be recognized under Article V (2) (b), NYC, when recognition and enforcement are sought in a contracting State of the Convention 682. Hence, it London Maritime Arbitrators Association are only published with the consent of both parties. The two institutions handle almost 90 per cent of all maritime arbitrations worldwide, cf. Maurer, “Transnational Shipping Law”, in Goldby and Mistelis (eds.), The Role of Arbitration in Shipping Law (2016), paras. 14.10, 14.33 et seq. 677   In this context, cultural factors play an important role. For instance, the established rules of precedence under English law usually prevent arbitral tribunals to cite awards as a source of law, see Ambrose, “Reflections : The Role of Standard Forms and Arbitrators in Developing a Transnational Law of Shipping”, in Goldby and Mistelis (eds.), The Role of Arbitration in Shipping Law (2016), paras. 15.01, 15.08 et seq. 678  See supra at footnote 667. 679   Fernandez Arroyo and Moise Mbengue, Public and Private International Law in International Court and Tribunals (forthcoming, manuscript with the author), text at footnotes 381 et seq. 680   Gaillard, Recueil des cours 329 (2007), 53, 99 et seq. 681  In this respect, I would endorse the position expressed by Lord Mance, Arb. Int’l (2016), 223, 226 et seq. 682  Lord Mance, Arb. Int’l 32 (2016), 223, 231 ; different opinion, Gaillard, Recueil des cours 329 (2007), 53, 180 et seq., preferring the application of a purely “transnational standard”.

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can be viewed also as the arbitrators’ contractual and professional duty to render an enforceable award 683. 169. Much discussed issues in this context are the occurrence and the treatment of bribery and corruption in the context of arbitral proceedings 684. The arbitral tribunal cannot simply ignore the fact that a contract has been concluded in a biased way (and it might even occur that both parties agree that the issue should not be raised 685). As a matter of principle, combating unfair commercial practices is not a new issue in commercial arbitration. However, compliance with international and national standards has become a priority during the last 25 years 686. Bribery and corruption have been prohibited by the OECD Convention against Bribery of 1997 687, by the United Nations Convention against Corruption (UNCAC) of 2003 688 and by the 2005 Rules of Conduct   Furthermore, the reputation of arbitrators is strongly influenced by the (low) ratio of awards given by them which were set aside. 684   Kreindler, Strafrechtsrelevante und andere anstößige Verträge als Gegenstand von Schiedsverfahren (2005), pp. 81 et seq. 685  There are, of course, limited powers of an arbitral tribunal to learn about such events, as the parties are responsible for the factual allegations. Nevertheless, there have been many incidents where arbitral tribunals became aware of critical circumstances surrounding the proceedings, cf. Wälde, “Equality of Arms in Investment”, in Yannaca-Small (ed.), Arbitration under International Investment Agreements : A Guide to the Key Issues (2010), pp. 161, 176 et seq. ; Kreindler, Anstößige Verträge (2005), pp. 59 et seq. 686   Horvath and Khan, “Addressing Corruption in Commercial Arbitration  : How Do Arbitral Tribunals Evaluate and Adjudicate Contractual Relationships Tainted by Corruption ?”, SchiedsVZ (2017), 127 et seq. 687  OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, http ://www. oecd.org/daf/anti-bribery/ConvCombatBribery_ENG. pdf. 688  https ://www.unodc.org/documents/brussels/UN_Conven tion_Against_Corruption.pdf. The Convention is not self683

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and Recommendations to Combat Extortion and Bribery of the International Chamber of Commerce 689. Although these instruments (of different legal nature) are not directly binding on private parties, they may nevertheless operate as expression of an arbitral public policy which finally entails the annulment of the contract by the arbitral tribunal 690. Furthermore, an arbitral tribunal might also consider to apply mandatory national law which is not part of the lex causae (the law applicable) 691 when there is a sufficiently close connection to the contract 692. These examples demonstrate that international commercial arbitration is not only restricted to deciding simple cases but that the arbitral tribunals apply the pertinent laws, which include mandatory and overriding provisions as well as public policy 693. executing, but it triggered many national anti-bribery laws which have become part of the respective national public policy exception (Article V (2) (b), NYC). 689  https ://www.trans-lex.org/790400/_/icc-rules-of-conductto-combat-extortion-and-bribery-in-international-businesstransactions/. 690   Horvath and Khan, SchiedsVZ (2017), 127, 131 et seq. referring to ICC commercial Cases No. 2730 (1982), No. 6248 (1990), No. 6497 (1994) and No. 9333 (1998). 691  According to a general rule, existing in many arbitration statutes, arbitral tribunals are not bound by the same conflict rules binding State courts, but are rather left free to apply the law most closely connected to the dispute at hand. This rule opens up the possibility to apply mandatory as part of the lex causae (unless parties agreed on another law applicable to the dispute). 692   Fernandez Arroyo and Moise Mbengue, Public and Private International Law (forthcoming), at footnote 136 referring to ICC Award Case No. 6320 where the arbitral tribunal eventually refused to apply the US RICO statute to the contract because it was not sufficiently connected to the case at hand. 693   Born, International Arbitration (2014), Vol. II, § 19.04, pp. 2707 et seq. ; King and Moloo, in Ferrari (ed.), Forum Shopping in the International Commercial Arbitration Context (2013), pp. 393, 398 et seq. ; Schill, ICSID Rev.

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170.  Finally, private justice and party autonomy find their limits at the stage of recognition and enforcement. At this moment of the proceedings, parties must resort to the support of State courts 694. While the recognition processes are differently designed by the procedural laws of the contracting States of the NYC, the standards to be applied to the recognition of foreign arbitral awards are found in Article V, NYC 695. Furthermore, the enforcement of arbitral awards is entirely subject to the national procedural laws of the State where the enforcement takes place. As far as enforcement against State parties and State entities is concerned, immunity from enforcement sets additional strong impediments 696. In practice, only assets of the foreign State used for commercial purposes are subject to enforcement 697. During the last years, several European States, in particular France 698 and 27 (2012), 87, 101 et seq. ; comprehensively Radicati di Brozolo, Recueil des cours 315 (2005), 3 et seq.   The exceptions are sports arbitration and the domain disputes under ICANN, supra at paras. 75 et seq. and infra at paras. 180 et seq. (on sports arbitration). 695  See supra at para. 165. 696   Fernandez Arroyo and Moise Mbengue, Public and Private International Law (forthcoming), text at footnotes 120 et seq. 697  Article 19 (b) and (c) of the UN Convention on Jurisdictional Immunities of States and Their Property (2004) require that either property has been earmarked by the State for the satisfaction of the claim or is used for non-commercial purposes. 698  Loi Sapin 2 of December 2016. Under French law, any enforcement against a foreign State is dependent on a specific authorization of a judge who scrutinizes specifically whether the targeted assets are specifically used or intended to be used otherwise than for the purpose of public service. In addition, under French law hedge funds can only enforce bonds which were acquired more than 48 months before the default of the State concerned. However, this limitation only applies to States listed by the OECD Development Assistance Committee. 694

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Belgium 699, have adopted specific legislation requiring a direct link between the asset seized and the underlying claim. In other jurisdictions, the case law regarding the immunity from execution has also become more restrictive 700. These developments are a direct reaction to new litigation tactics of powerful private litigants (often process financer and hedge/vulture funds) which tried to increase pressure on State defendants by seizing and blocking bank accounts held by State agencies in third States 701. Attempts to challenge these new restrictions of enforcement against States and State-owned entities have failed so far. It is interesting to see that States used their (unlimited) regulatory powers in enforcement law in order to prevent aggressive litigation tactics of the more aggressive stakeholders in “transnational” litigation 702. B.  The Dissolution of Investment Arbitration 1.  The concept of international public law arbitration 171.  The most important development in international dispute resolution has been the rise of investment arbitration during the last 25 years. It originated as a part of international commercial arbitration 703 but it  Belgium  : Article 1412  quinquies du Code Judiciaire as amended in 2015.  This is the case in Germany where the Supreme Federal Civil Court held that the declaration of the ambassador on the public or commercial use of an asset has conclusive evidence, BGH, 24/3/2016, RIW (2016), 365, para. 14. 701  Weidemaier and Gelpern, “Injunctions in Sovereign Debt Litigation”, Yale Journal on Regulation (2014), 189, 210 et seq. The United Kingdom adopted the Debt Relief Developing Countries Act 2010 to prevent vulture funds from enforcing bonds of defaulting States. Benninghofen, Staatsumschuldung (2014), pp. 273 et seq. 702  See infra at paras. 207 et seq. 703  Wälde, “The Specific Nature of Investment Arbitration”, in Kahn and Wälde (eds.), Les aspects nouveaux du droit des investissements internationaux (2007), pp. 43, 112 et seq. 699 700

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has become a self-standing area of international dispute settlement, somewhere in the middle between interState dispute resolution and commercial arbitration 704. This “hybrid” character of the dispute settlement regime led some authors to describe it as “public” in order to distinguish it from commercial arbitration. The main arguments put forward by these authors are the following : investment arbitration relates to a regulatory relationship between the host State and the investor which is mainly based on public international law (the investment treaty). Investment arbitration engages in forms of review over the activities of national authorities which resemble the review of administrative acts by administrative or constitutional courts (especially regarding the protection of human rights) 705. Finally, investment arbitration is aimed at building a specific legal field of international investment law permitting “global governance” and control of State activities with regard to investors by overarching standards which is different from the simple settlement of commercial disputes 706.   Brower, “The Functions and Limits of Arbitration and Judicial Settlement under Private and Public International Law”, Duke J. Comp. and Int’l L. 18 (2008), 259, 298, stressing the political dimensions of investment arbitration ; Alvarez, Recueil des cours 344 (2009), 193, 227 et seq. (on differences between investment arbitration and WTO disputes) ; 234 et seq. (on differences regarding human rights bodies). 705   Roberts, AJIL 107 (2013), 45, 62 et seq. ; Schill, in idem (ed.) International Investment Law and Comparative Public Law, pp. 3, 7 et seq. ; van Harten, Investment Treaty Arbitration and Public Law (2007), pp. 180 et seq. 706  Expressly Roberts, AJIL 107 (2013), 45, 62 et seq., see the critiques formulated against this line of argument supra at paras. 167 et seq. ; Brower, Duke J. Comp. and Int’l L. 18 (2008), 259, 280 et seq. (highlighting that the dispute resolution between States after 1900 – under the auspices of the PCA – did not develop a consistent body of case law). 704

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172.  There is no doubt that investment arbitration has departed to some extent from international commercial arbitration and has become a specific (but still neighbouring) area of dispute resolution. However, it seems questionable simply to refer to “public law” in order to describe the specificities of investment arbitration. First, the concept of “public law” itself is not entirely clear. Obviously, the basic concept is to describe a vertical relationship between the investor and the host State 707. Second, the idea of “publicness” is not primarily used to protect the investor as the weaker party (whose employees might even be exposed to physical pressure in the territory of the host State 708) but to shield the host State against a protection system which is considered to be one-sided and over-protecting the private party 709. Producing what may be described as a puzzling result, the “public law paradigm” pursues different objectives : in domestic law, it shall preserve an area of freedom of the individual and protect him or her against unlawful intrusions by the public authorities. In the context of investment arbitration, it is aimed at preserving the regulatory freedom of the host State and at protecting sovereignty against (allegedly) the too far-reaching intrusions by arbitral tribunals 710. From this perspective,   This basic assumption may be correct when the case concerns a (simple) expropriation of the investor’s company in the host State. However, modern BITs expand the protection to “legitimate expectations” of the investor and to the breach of specific guarantees, often licences, given by the host State. Alvarez, JIDS 7 (2016), pp. 534, 543 et seq. 708   As correctly observed by Wälde, “Equality of Arms in Investment”, in Yannaca-Small (ed.), Arbitration under International Investment Agreements : A Guide to the Key Issues (2010), pp. 161, 176 et seq. 709   Roberts, AJIL 107 (2013), 45, 59-61. 710   Ibid., 45, 66-67  ; Schill, in idem (ed.), International Investment Law and Comparative Public Law (2010), pp. 3 et seq. 707

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the analogy with national administrative law is hardly convincing 711. 173. Finally, the more interesting issue pertains to the differences between the proceedings applied in commercial and in investment arbitration, respectively 712. In this regard, the public law approach has not formulated clear consequences so far ; obviously this is the result of the practical difficulties in reshaping the existing procedural rules of the individual arbitral tribunals which are administered by ICSID, the PCA and other arbitration institutions. Apart from transparency issues 713 there is no real debate whether the procedures applied by the investment tribunals should be adapted to the specific needs of investment arbitration 714. However, the current political debate on ISDS in the framework of the CETA and TTIP 715 demonstrates that a re-institutionalization of investment arbitration has become a political priority for some western States (especially the European Union and Canada) in order to enhance the coherence of the system and increase its legitimacy 716. Nevertheless, it remains to be  Alvarez, JIDS 7 (2016), pp. 534, 542 et seq.   Böckstiegel, Arb. Int’l 28 (2012), 577 et seq. 713   Infra at paras. 175 et seq. 714  In this regard, one might imagine that the administrative tribunal gets broader investigative powers in order to protect the public interests or to support the structurally weaker (private) party comparable to administrative court proceedings in Continental Europe. Böckstiegel, Arb. Int’l 28 (2012), 577, 585 et seq. notices that the differences mainly relate to the case management as State parties often need more time to accommodate different ministries involved. 715   Supra at para. 124. 716  Here, the main argument is to reduce the influence of investors to freely choose the arbitrators in order to increase public accountability. Consequently, the European Union ventured to establish a self-standing court with a closed list of arbitrators in order to keep the system more independent from the influence of investors, see supra at footnote 55. 711

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seen whether this approach, which is advanced by some Western democracies, will be followed by the rest of the world 717. 2.  Procedural specificities of investment arbitration 174.  The most important difference between commercial and investment arbitration – as they stand today – relates to the confidentiality of the proceedings. In commercial arbitration, the situation seems to be clear 718 : the parties to the arbitration can give consent that their private proceedings be totally 719 confidential unless they agree otherwise 720. However, the award may become public when annulment or recognition proceedings in State courts are initiated 721. In the legal practice and in the legal literature, there is a large consensus that the confidentiality of the proceedings is a major advantage (and incentive) for commercial  Same opinion Alvarez, JIDS 7 (2016), pp. 534, 557 et seq., footnote 108, with references to recent South-South BITs which do not take up the “transparency” approach of NorthNorth BITs. 718  However, it must be noted that the issue is usually not addressed by international conventions, the UNCITRAL Model Law and national legislation on commercial arbitration, Born, International Arbitration (2014), Vol. II, § 20.03, pp. 2785 et seq. 719   Even the information that arbitration proceedings are pending/ongoing may not be disclosed. Example : Article 9 of the Stockholm Chamber of Commerce Rules, cf. Koepp and Sim, “The Application of Transparency”, in Scherer, Gehring and Euler (ed.), Transparency in International Investment Arbitration (2015), p. 34. 720   Born, International Arbitration (2014), Vol. II, § 20.01 (with further references and quotations) distinguishing between “privacy” (regarding the attendance of the proceedings by the parties only) and confidentiality (forbidding any disclosure of information about the proceedings to third parties), p. 2782. 721   Born, International Arbitration (2014), Vol. II, § 20.03 (E), pp. 2801 et seq. and 2820.

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arbitration 722. Consequently, the conclusion of an arbitration agreement has been considered in some jurisdictions as including an implied agreement on confidentiality 723. The Swiss Federal Tribunal held that the confidentiality of arbitration is not contrary to Article 6, ECHR, which provides for the right to a public hearing, but only in State courts 724. However, there are some sectors of the arbitration industry where at least the existence of the dispute and the initiation of arbitral proceedings are disclosed 725. 175.  In investment arbitration, the situation is changing. Initially, arbitral tribunals referred to the consent of the parties and kept the process confidential 726. However,  Nevertheless, some authors stress the decline in confidentiality in the modern practice, Malatesta, “Confidentiality in International Commercial Arbitration”, in Malatesta and Sali (eds.), Rise of Transparency in International Arbitration (2013), pp. 39, 42 ; different opinion, Böckstiegel, Arb. Int’l 28 (2012), 577, 586 et seq. 723  This is the position of English law, Russell v. Russell (1880) 14 Ch. D. 471, 474. The position of US law is different, USA v. Panhandle E Corp., 118 FRD 346 (CD Cal., 1988). Most often, explicit rules on confidentiality are found in the form of provisions of institutional rules ; see Article 28 (3), UNCITRAL Rules (exclusion of non-parties from the hearings) and Article 34 (5), UNCITRAL Rules (making the publication of the award dependent on the consent of the parties). 724  Swiss Federal Tribunal, 10/2/2010, DFT 4A_612_2009. The ECtHR held that parties may waive the right to a public hearing under Article 6, ECHR, judgment of 14/6/1993, Appl. No. 14518/89, Schuler-Zgraggen v. Switzerland. 725  Consider, for example, maritime arbitration : pursuant to Section 1 (3) of the Arbitration Rules of the New York Society of Maritime Arbitrators, unless stipulated in advance to the contrary, the parties, by consenting to the Rules, agree that the award issued may be published, Maurer, “Transnational Shipping Law”, in Goldby and Mistelis (eds.), The Role of Arbitration in Shipping Law (2016), paras. 14.10, 14.36. 726  The first decision dated 15/1/2001 when the arbitral tribunal in Methanex v. United States of America (at para. 49) 722

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starting with NAFTA proceedings 727, there has been a growing tendency to permit amicus curiae briefs and to publish the awards. ICSID investment tribunals followed this line of arguments 728. As investment disputes often relate to the political and regulatory activities of a Government or governmental agencies of the host State, these activities are, as a matter of principle, subject to public (democratic) and political review. Furthermore, the large amounts of compensation claimed in these proceedings largely affect the financial budgets of the host State. Accordingly, from the perspective of democratic transparency and accountability, there is a genuine interest of national parliaments, but also of the civil society at large in getting access to and information about the proceedings as if these cases were heard in an open court process 729. These demands have changed the procedural framework of arbitral tribunals in investment permitted third parties to file an amicus curia brief against the will of one of the parties. The tribunal referred to the public interest in the arbitration, Scherer, Gehring and Euler, “Introduction”, in Scherer, Gehring and Euler (eds.), Transparency in International Investment Arbitration (2015), p. 3. 727  Due to the pressure from the US Congress, Chapter 11 of NAFTA does not provide for any confidentiality unless parties expressly agree otherwise. Arbitral tribunals relied on the public interest in the proceedings and adopted a permissive attitude with regard to the transparency of the proceedings, Born, International Arbitration (2014), Vol. II, § 20.11 (A), pp. 2825 et seq. 728   Biwater Gauff v. Tanzania, Procedural Order No. 5, 26/9/ 2009, in ICSID Case No. ARB/05/22, paras. 46-61, Wiik, Amicus Curiae in International Courts and Tribunals (to be published in 2018). 729   Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, Procedural Order No. 3, 29/9/2006, in ICSID Case No. ARB/05/22, the tribunal permitted amicus curiae briefs against the opposition of the private party by invoking the public interest at stake.

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disputes : the filing of amicus curiae briefs 730 and the publication of major documents of the proceedings, including (and especially) the arbitral award, have become an expanding practice in investment arbitration. Even the (partial) live-streaming of the hearings has become applied practice 731. All in all, transparency has been conceived as an answer to the public interest in investment arbitration 732. 176.  This development reflects similar evolutions in the practice of international (and constitutional) adjudication 733. However, in many arbitration proceedings the parties still preserve the power to decide whether and to what extent the arbitration process is made transparent. In addition, some arbitral tribunals also expressed concern about undue influence of third parties into the proceedings – a concern which should not be neglected 734. 177. These developments have been taken up by two recent instruments as a result of which – in the long run – investment arbitration might further deviate from commercial arbitration  : in 2013, UNCITRAL  For a comprehensive study of the practice in the ICJ, ITLOS, other international adjudicative bodies, before the ECtHR and in investment arbitration, see Wiik, Amicus Curiae in International Courts and Tribunals (to be published in 2018). 731  Example  : in Vattenfall v. Germany II, ICSID Case No. ARB/12/12, the opening and the closing hearings in October 2016 are accessible online at : https ://livestream. com/ICSID/events/6515750. 732   Gehring and Euler, “Public Interest in Investment Arbitration”, in Scherer, Gehring and Euler (eds.), Transparency in International Investment Arbitration (2015), pp. 7, 9 et seq. 733   Born, International Arbitration (2014), § 20.11 (A), p. 2823 ; Wiik, Amicus Curiae in International Courts and Tribunals (to be published in 2018), pp. 91 et seq. 734  Wiik, Amicus Curiae in International Courts and Tribunals (to be published in 2018), pp. 39 et seq. 730

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adopted new rules governing transparency in investment arbitrations 735 which provide for a repository (a database) of all pending cases 736, open oral hearings (accessible via audio-visual media) 737, the admissibility of amicus 738 curiae briefs  and the publication of documents submitted to arbitration 739, such as the pleadings and the arbitral award of the tribunal. The rules also provide for the protection of confidential information, which must not be disclosed to the public 740. The Transparency Rules are conceived as part of the UNCITRAL Arbitration Rules ; but they can also be applied as a stand-alone instrument. As a complementary instrument, the United Nations-Mauritius Convention of 10/12/2014 extends the temporal scope of the Transparency Rules to disputes arising out of an already existing BIT (before April 2014) which (by consent) may be subjected to  On the inherent weaknesses of transparency as a general legal concept (which mainly refers to providing for information), cf. Bianchi, “On Power and Illusion : The Concept of Transparency in International Law”, in Bianchi and Peters (eds.), Transparency in International Law (2013), pp. 1, 6 et seq. 736  UNCITRAL Transparency Rules, Art. 8 – the Repository shall be held by the Secretary General of UNCITRAL, cf. Claussen, “Article 8. Repository of Published Information”, in Scherer, Gehring and Euler (eds.), Transparency in International Investment Arbitration (2015), pp. 308 et seq. 737  UNCITRAL Transparency Rules, Art. 6. This aspect broadly includes media coverage, especially the live-streaming of the hearing, but also access to the main documents of the proceedings. 738  UNCITRAL Transparency Rules, Art. 4. The admission is subject to consultation with the parties and a full disclosure of the third party about its relations with the parties and about an eventual funding obtained for the submission of the amicus brief. 739  UNCITRAL Transparency Rules, Art. 3. 740  UNCITRAL Transparency Rules, Arts. 2 and 7. The most important exceptions relate to business secrets and to essential security interests of the State. 735

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the new regime 741. Until today, however, the number of ratifications has been few 742. 178.  Similar developments took place in the framework of ICSID : here, the Secretary-General of ICSID is required to maintain a register which contains basic information of each dispute 743. If the parties agree, additional information (including briefs, statements) is made accessible ; even live-streaming of the hearing is found at the Secretary-General’s website 744. Nevertheless, ICSID still operates under confidentiality obligations regarding the disclosure of information : all depends on the consent of the disputing parties. Consequently, Article 48 (5) of the Convention provides that the publication of the award depends on the consent of the parties. Nevertheless, the general policy of ICSID is to increase the provision of information about the arbitration processes. Today, almost all ICSID awards are published 745. 179.  The transparency rules are intended and perceived as an answer to the growing public interest in investment arbitration. Politically, they are an important deviation from commercial arbitration where confidentiality is   Euler and Scherer, “Conclusion : The Rules as a Swing of the Pendulum ?”, in Scherer, Gehring and Euler (eds.), Transparency in International Investment Arbitration (2015), pp. 351, 354. 742   United Nations Convention on Transparency in TreatyBased Investor-State Arbitration of 17 March 2015. The Convention has received ratifications from Canada, Mauritius and Switzerland. According to its Article 9 (3), it will enter into force on 18/10/2017. The limited number of ratifications demonstrates that the transparency concept has fewer proponents than one might have expected. 743  Accordingly, information about the pending case and its parties (including the file number) is always available. It also includes the constitution and membership of each arbitral tribunal, see http ://iscid.worldbank.org. 744   Koepp and Sim, in Scherer, Gehring and Euler (eds.), Transparency in International Investment Arbitration (2015), pp. 321, 336 et seq. 745   Böckstiegel, Arb. Int’l 28 (2012), 577, 586 et seq. 741

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still practised as a rule and amicus curiae briefs are rare exceptions. Notwithstanding the fact that in investment arbitration – just like in commercial arbitration – the application of the transparency rules in the core areas, namely regarding the publicness of the hearing and the publication, still depends on the consent of the parties, recently an expanding practice of publishing information about ongoing disputes has been undertaken. As a result, today the vast majority of investment disputes is largely documented by the arbitral institutions and, in addition, in private databases 746. It still remains to be seen whether the trend to more openness of investment arbitration, which has been promoted by western democracies, will be taken up by countries which mainly receive foreign direct investments. C.  The Unsettled Situation of Sports Arbitration 1. The Pechstein case 180. Today, sports law must be considered as the most detached “privatized legal field” in the globalized world 747. The pertinent regulations are enacted by the international sports federations and endorsed by all subordinated federations worldwide in their by-laws. The pyramidal organization of sports permits uniform rule-making and enforcement which is (ultimately) sanctioned with the exclusion of non-complying associations from the competitions 748. Sports law is also individually acknowledged by athletes 749 when they register for international competitions. The sport system  One of the most prominent ones is www.italaw.com.  See supra at paras. 132 et seq.  The so-called one place principle, Vieweg and Staschik, “The Lex Sportiva”, in Vieweg (ed.), Lex Sportiva (2015), pp. 17, 24 et seq. 749  In addition, athletes are bound by sports law through their membership in local sports associations at the domestic level. 746 747 748

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disposes of a self-standing dispute resolution system for international disputes which is exercised by the Court of Arbitration for Sports 750. The arbitration of the CAS is based on arbitration clauses found in the statutes of the sport federations and in the individual contracts athletes agree to when they register for competitions. 181. Recently, the self-standing sports arbitration system was challenged by the German ice speed skater, Ms Claudia Pechstein. In 2009, the athlete was banned by the International Skating Union (ISU) for two years after a doping sample taken at an international race in Norway had proved positive 751. When registering for the competition, all skaters had to sign a form of the ISU by which they agreed to be submitted to doping controls and to comply with the anti-doping rules of the ISU and the WADA. With a second mandatory declaration, Ms Pechstein agreed to submit any dispute with the ISU to the Court of Arbitration for Sports. Accordingly, Ms Pechstein challenged the two years’ ban before the CAS, asserting that she had a genetic condition which explained the positive results. The arbitral tribunal did not uphold this argument and dismissed her appeal 752. The athlete started annulment proceedings in the Swiss Federal Tribunal but without success 753.   Supra at paras. 134 et seq.   The samples taken from the athlete showed elevated reticulocyte counts. The disciplinary commission of the ISU banned Ms Pechstein for two years from all international competitions (including the Olympic Games) and prohibited any professional training during this period. 752  Award of 25/11/2009, CAS 2009/A/1912-1913, P. and DESG v. ISU. The arbitral tribunal dismissed the appeals almost entirely without exception ; only the date of commencement of the ban was altered in favour of the athlete. 753  Swiss Federal Tribunal, judgment of 10/2/2010 4A_612/ 2009. In a second decision, dated 28/9/2010, 4A_144/2010, the Federal Tribunal did not permit the plaintiff to present new evidence (an expert opinion based on a new methodology which proved her genetic disposition). 750 751

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182.  As she still considered that the ban was unlawful, Ms Pechstein brought a lawsuit for damages (of 3.5 million euros) against the German national federation and the ISU in the District Court of Munich, at the seat of the German federation 754. In the German proceedings, the plaintiff challenged the validity of the arbitration agreement, which she had been forced to sign in order to be admitted to the competition. She maintained that the CAS was not an independent arbitral tribunal as it was influenced by the sports federations, including the ISU. Therefore, she claimed that the arbitration agreement violated her right of access to a court under Article 6, ECHR. In two much discussed judgments, the Munich courts sided with the arguments of the plaintiff. The District Court considered the arbitration agreement as void under Swiss law 755. The Court of Appeal based its decision on German cartel law and held that the ISU had abused its monopoly position with regard to race competitions when it imposed the arbitration agreement on the athlete. Furthermore, the Court of Appeal considered the composition of the CAS to be problematic since the sports federations exercise considerable influence on the composition of the (closed) list of arbitrators. As a result, the Munich court held the arbitration clause and the arbitral award as void under German antitrust law 756.  The jurisdiction over the ISU (an association organized under Swiss law) was based on Article 6, No. 1, of the Lugano Convention. According to this article, the Swiss co-defendant could be sued at the seat of the German defendant unless the subject matter of the two lawsuits is not sufficiently connected. In the Pechstein case, there was no doubt that the related lawsuits were closely connected. 755  District Court, Munich, 26/2/2014, SchiedsVZ (2014), 100. Eventually, the District Court held that it was bound by the arbitral award. 756  Court of Appeal, Munich, 15/1/2015, SchiedsVZ (2015), 40, critical Schlosser, “Kompetenzfragen in der Sportschiedsgerichtsbarkeit”, SchiedsVZ 2015, 257 et seq. 754

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183. In June 2016, the Federal Civil Court (BGH) reversed 757. It held that the arbitration agreement violated neither German nor European antitrust law. The court argued that the organization of worldwide sport competitions must be based on global uniform rules and it stressed the need to interpret these rules (including anti-doping rules) in a uniform way 758. In this respect, the BGH considered that the establishment of the CAS was not only in the interest of the sports federations, but also in the interests of the athletes. The composition of the CAS, especially the composition of the individual tribunals 759, was sufficient to consider the CAS an independent arbitral institution 760. Therefore, the Court concluded that the signing of the arbitration clause did not deprive the athlete of her right to have access to an independent and impartial court within the meaning of Article 6, ECHR 761. 184. On balance, the German Federal Civil Court adopted a principled position when it recognized and favoured sports arbitration as a legitimate and self German Federal Court of Justice, 7/6/2016, Pechstein v. ISU, NJW (2016), 2276 ; critically annotated by Heermann, Die Sportschiedsgerichtsbarkeit nach dem Pechstein-Urteil des BGH, NJW (2016), 2224 et seq. An English translation is available at the website of the CAS : http ://www.tascas.org/fileadmin/user_upload/PechsteinISU_translation_ ENG_final.pdf. 758  German Federal Court of Justice, 7/6/2016, Pechstein v. ISU, NJW (2016), 2276, paras. 51 et seq. 759  Contrary to the practice of (commercial) arbitration, the president of the arbitral tribunal is appointed by the CAS, not by the two party-appointed arbitrators. 760   German Federal Court of Justice, 7/6/2016, Pechstein v. ISU, NJW (2016), 2276, paras. 36 et seq., critically : Hess, “Aktuelle Kontroversen um die Sportschiedsgerichtsbarkeit”, in Hess (ed.), Der Europäische Gerichtsverbund (2017), pp. 125, 126 et seq. ; Thorn and Lasthaus, IPRax (2015), 426 et seq. 761  German Federal Court of Justice, 7/6/2016, Pechstein v. ISU, NJW (2016), 2276, paras. 63 et seq.

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contained system of private dispute resolution. However, its unfettered deference to private dispute resolution schemes appears highly debatable  : for the athletes it is problematic because their agreement to the clause cannot realistically be considered as voluntary 762. If they want to participate in the competition organized by the international sport federations, they have no chance of changing any terms of the agreement (or licences) (the same applies to the Olympic Games). To pretend that the common interest of athletes and sports federations in combating doping is devoid of any conflict is naive – the mere existence of the CAS and its broad case law on doping offences demonstrates how conflictual this area of law is in practice 763. The predominant position of sports federations in the organization of sports should entail a residual review by national courts with regard to mandatory law, especially cartel law, in order to protect athletes from being the structural weak parties. At present, this review operates in the framework of the national and international instruments on arbitration (which are already structurally weakened due to the specific enforcement structure of international sports law). 185. By simply deferring the “needs” of the organization of global sports to the federations, the BGH cut off the athletes from any efficient residual control exercised by State courts. All in all, a more balanced approach seems to be necessary : the more State courts are excluded from private regulation, law enforcement and dispute resolution processes, the more a residual review of mandatory laws and procedural minimum   Only their decision to participate in the sports competition is made on a voluntary basis. 763  Thorn and Lasthaus, IPRax (2015), 426, 430  ; Wolf and Eslami, in Festschrift Geimer (2017), pp. 807, 815 et seq.

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standards is needed 764. In this respect, the formalistic and abstract reasoning in the decision of the German Federal Court is unconvincing. 2.  Unlimited deferral to private dispute settlement  : Article 11 of the German Anti-Doping Law of 2015 186.  The 1st Senate of the BGH was influenced 765 by the German Anti-Doping Law of December 2015. Its Section 11 reads as follows : “As a prerequisite for participating in organized sport, sports federations and athletes may conclude arbitration agreements on settling legal disputes arising from such participation if the arbitration agreements integrate sports federations and athletes into national and international sports organizations and if they facilitate, promote or ensure participation in organized sport overall. This is in particular the case if the arbitration agreements are intended to implement the provisions of the World Anti-Doping Code of the World Anti-Doping Agency.” 766 187. According to the explanation given by the Government, this provision clarifies that arbitration agreements drafted by sports federations are not invalid because they have been signed by the athletes more or less unwillingly 767. As a result, the German  In this context, the Swiss Federal Tribunal has correctly held that a provision in the statutes of a sports federation excluding any review of the CAS awards is ineffective due to the hierarchical structure of international sport, judgment of 22/3/2007, 4P.172/2006, Cañas v. ATP, at 4.3.2.2. 765  German Federal Court of Justice, 7/6/2016, Pechstein v. ISU, NJW (2016), 2276, explicitly at para. 63. 766  Anti-Doping Act of 10/12/2015, Federal Law Gazette I, p. 2210. 767   Bundestagsdrucksache 18/4898, p. 38. Section 11 was a direct reaction to (and the result of a massive lobbying against) the judgment of the Munich Court of Appeal in the 764

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lawmaker deliberately recognizes the prevalence of sports arbitration operating mainly as a self-contained regime. Obviously, the Federal Civil Court considered this provision as a confirmation of the existing legal and procedural situation 768. 188. From the perspective of European law, the decision of the German lawmaker appears even more problematic : there is no doubt that sports law is subject to European Union law, especially to cartel law, fundamental freedoms and the Charter of Fundamental Rights 769. However, the application of these mandatory laws by the arbitral tribunals of the CAS is not guaranteed. Furthermore, there is no review of mandatory Union law by the Federal Tribunal (as Switzerland is not an EU Member State although many disputes decided by CAS panels relate to the Internal Market). By validating arbitration clauses in sports matters, the German lawmaker deferred the judicial review of mandatory Pechstein case, cf. Lehner, in Lehner, Nolte and Putzke, Commentary of the German Anti-Doping Act (2017), Section 11, paras. 13 et seq. 768  With regard to arbitration clauses, para. 69 of the judgment expressly addressed Article 4 of the International Convention against Doping which obliges the Contracting States to implement the WADA Code. Articles 13.2.1. and 23.2.2. of the WADA Code mention arbitration clauses and the CAS. Therefore, the BGH considers Section 11 as a direct implementation of the WADA Code by the German legislator. This reference appears to be telling : the reference to the CAS has been somewhere integrated into the WADA Code and one might wonder whether this reference can be considered as a core regulation of the Code. Furthermore, the deferral to the WADA Code does not imply that every single term adopted by international sports federation is automatically binding on States parties. 769   Streinz, “Boundaries upon the Jurisdiction of Federations under EU Law”, in Vieweg (ed.), Lex Sportiva (2015), pp. 189, 194 et seq. ; ECJ, 17/7/2006/, case C-519/04 P, Meca-Medina and Majcen v. Kommission, EU :C :2006 :492 (applying EU cartel law to doping sanctions).

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Union law to the court of a third State (namely, the Swiss Federal Court) which, as such, cannot file a preliminary reference to the ECJ 770. As a result, it must be stated that Section 11 of the German Act is incompatible with 771 European Union law  . The practical consequences of Section 11 are highlighted by a recent decision of the EU Commission regarding the eligibility rules of the ISU. In this decision, the Commission required the ISU to expunge from its regulations the by-laws which exclude from competition skaters (up to a life ban) who participate in competitions (and similar events) not approved by the ISU 772. The EU Commission stated that these eligibility rules are solely motivated by economic interests of the sports federation and prevent independent organisers from putting together their own speed skating competitions. As a result, the EU Commission urged the ISU to stop this unlawful conduct (infringing on Article 101, TFEU) within 90 days. One might imagine that athletes who were sanctioned by the ISU will start litigation for damages in civil courts. However, Section 11 of the German Act obliges them to bring the case before the CAS and to litigate their case (based on the infringement of EU antitrust law) in Switzerland, a third State. This result is hardly in line with the right of the individual to obtain damage (in the courts of EU Member States) for the infringement of cartel law 773.  From the perspective of (German) athletes, Section 11 of the Anti-Doping Law entails that they have no access to German courts and are directly sent to the arbitration panels of the CAS and to the restricted and pro-arbitration review by the Swiss Federal Tribunal. A residual control by German courts and the ECJ is no longer guaranteed. 771   Hess, in Hess (ed.), Der Europäische Gerichtsverbund (2017), pp. 125, 133 et seq. 772  European Commission, 12/8/2017, IP/17/5/5184. 773   ECJ, 20/9/2001, case C-453/99, Courage and Crehan, EU:C:2001:465; ECJ, 13/7/2006, case C-295/04, Manfredi, EU:C:2006:461. 770

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189.  The example of sports law appears to be telling with regard to the private-public divide : ultimately, the legal foundation of a transnational regulation does not appear to be essential – it might be public or private 774. What does count, however, is the implementation of fundamental principles to autonomous self-regulations in order to protect – potential – weaker parties against undue and unfair influences of powerful actors. The less influence is given to the individual litigant to determine the dispute resolution scheme, the more this scheme must conform to the fundamental guarantees of a fair trial 775. Furthermore, the application of mandatory (protective) norms by the arbitral tribunal plays a decisive role. Yet, from a procedural perspective, a residual control by State courts in annulment proceedings is still needed 776. In highly “privatized” or autonomous regulatory systems such as the one in sports law, a residual control by State courts must be allowed not only at the recognition stage of the dispute but also with respect to the arbitral tribunal’s compliance with, notably, mandatory law 777.  However, the private approach is easier to implement in cross-border (and global) contexts as private international law always permitted cross-border exchanges. 775   ECtHR, 28/10/2010, App. 1643/06, Suda, paras. 48 et seq.  ; ECtHR, 1/3/2016, App. 41069/12, Noureddine Tabane c. Suisse ; Münch, “Schiedsverfahren mit Verzicht auf Staatskontrolle – zum Residualschutz der fair-trialMaxime”, SchiedsVZ (2017), 114, 116 et seq. 776   Consequently, a reduced role for State courts in the annulment proceedings (orde public attenué/international public policy) is problematic when there is a structural imbalance among the parties in the arbitration proceedings. It remains to be seen whether the ECtHR will tighten the standards of review in the pending application of Claudia Pechstein. 777  In the context of cartel law, the ECJ has highlighted that the courts of EU Member States must ensure that mandatory law is applied by arbitral tribunals, ECJ, 1/6/1999, case C-126/97, Eco Swiss, EU :C :1999 :269. 774

CHAPTER VI

DOES SUBSTANCE INFLUENCE DISPUTE RESOLUTION ? 190.  As explained in the first chapter, one aim of this course is to look at recent developments in the domestic and international practice and in the case law in order to ascertain whether the great expectations of the 1990s and of the first post-millennium years regarding transnational litigation 778 have been embraced in practice 779. In this respect, several major drawbacks must be addressed here : on the one hand, the idea that domestic courts might enforce international law in a decentralized way has never gained universal support 780. On the other hand, the willingness of international courts to accept and to react to the views of non-parties on (alleged) public interests has not yet gained universal acceptance 781. Finally, the idea of fully privatizing litigation should also be met with scepticism. In this part of the course, I would briefly refer to the main arguments put forth in this context in order to make a comprehensive assessment. A.  The First Illusion : Looking at Domestic Courts as Decentralized International Courts 191. Construing domestic courts as decentralized international courts is a fascinating idea which stands in   Koh, Nebr. L. Rev. 75 (1996), 181, 186 et seq.  See supra at footnote 41.  This is especially pertinent when the party is a foreign State or public authority. 781  This is especially true for the International Court of Justice where amicus curiae submissions are still not accepted, Wiik, Amicus Curiae (to be published in 2018), pp. 105 et seq. 778 779 780

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close relationship with the concept of private enforcement. In cross-border settings, it entails the extraterritorial application of mandatory laws pursuing public interests 782. However, several legal impediments stand in the way of this concept ; some of these impediments are directly derived from the private-public divide and prohibit a far-reaching use of this regulatory approach in the public sphere. As the American experience demonstrates, transnational public law litigation in civil courts is ultimately not an easily feasible option 783. 192. First, any direct application of mandatory (public) laws (including international law of jus cogens nature) against foreign States in domestic courts is still largely excluded by foreign sovereign immunity. Here, the private-public divide still exists and it is based on and backed up by the almost universally accepted distinction between acta jure imperii and acta jure gestionis 784. Most violations of human rights are made in the public sphere and qualify as acta jure imperii 785. The debate surrounding the compensation of war damages has shown that the current situation of international law has not matured in a way that foreign States can be held directly responsible for violations of international law, including human rights, in the courts of other States 786. Recent practice has demonstrated, however, that domestic remedies in the defendant State itself might provide a viable alternative dispute resolution where a  See supra at paras. 61 et seq.  See supra at paras. 69 et seq. 784  See supra at paras. 23 et seq. 785  A disgusting but pertinent example relates to acts of torture committed by the police or secret services in the prisons of the defending State or abroad. 786   Rahmatullah (No. 2) (Respondent) v. Ministry of Defence and Another (Appellants) and Mohammed and Others (Respondents) v. Ministry of Defence and Another (Appellants), [2017] UKSC 1. See supra at paras. 34 et seq. and 41 et seq. 782 783

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dispute resolution mechanism at the international level is not available 787. 193.  Second, the concept of private law enforcement has come to be the biggest challenge for cross-border cases. From a regulatory perspective, the idea that public authorities may substitute direct regulation (by administrative acts) through indirect civil actions brought by themselves or filed by private parties on their behalf in civil courts might appear to be an avenue to overcome the old paradigm of the territoriality of public regulation. The case law of the ECJ offers some indications in support of these developments through the Court’s broad interpretation of the concept of “civil and commercial matter” for the purposes of permitting the swift crossborder enforcement of a larger number of “public law” claims in the European Judicial Area 788. However, the enlargement of the scope of the private law instruments may still prove problematic at the enforcement stage 789. 194. Thus far, the concept of cross-border private enforcement has not yet been tested in Europe. This will change once the new General Data Protection Regulation enters into force in 2018. However, it remains to be seen to what extent the extraterritorial reach of European data protection law will be tested against defendants from third States, especially from the United States.

 See supra at paras. 38 et seq.   ECJ, 9/3/2017, case C-551/15, Pula Parking, EU :C : 2017 :193, supra at para. 56. 789  See ECJ, 18/10/2011, case C-406/09, Realchemie Nederland, EU :C :2011 :668, on the enforcement of a German Zwangsgeld (court fine) under Article 54 Brussels I bis Regulation : The ECJ held that the (German) creditor was entitled to the enforcement of the fine in the Netherlands but had to transfer it to the German public authorities, cf. von Hein, “Die Anpassung unbekannter Maßnahmen und Anordnungen nach Art. 54 EuGVVO nF”, in Festschrift Geimer (2017), pp. 345, 349 et seq. 787 788

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Experiences with the European Injunction Directive 790, which grants standing to consumer associations to file injunctions in the courts of other EU Member States, show that this instrument has not been used very much in practice 791. However, the GDPR provides the necessary tools to expand effectively European data protection law to third-State defendants since it provides for broad heads of jurisdiction, collective redress and conflict of law rules which permit the extraterritorial application of data protection law 792. As of today, a far-reaching transatlantic “justice conflict” on data protection and the protection of privacy cannot be excluded 793. 195.  On the other side of the Atlantic, the situation has changed dramatically. Since 2004, the US Supreme Court has reversed the permissive attitude of American law to extraterritorial application of regulatory laws. In Morrison, the Supreme Court established the presumption against extraterritoriality which entailed the inadmissibility of foreign-cubed class actions in the United States ; in Kiobel, the Court almost forestalled human rights litigation in American courts against foreign sovereigns. In Baumann, the Court reduced general jurisdiction over foreign defendants based on doing business and, recently, in Bristol-Myers Squibb it reduced the grounds for specific jurisdiction over collective claims 794. This attitude of the American courts stands in striking contrast to the latest developments in other countries (especially in Europe) where the concept of extraterritoriality is gaining momentum. However, the basic attitude of the US Supreme Court is not entirely  Directive 2009/22/EC, OJ 2009 L 110/30.  Voet, “Actions for Collective Redress”, in Hess (ed.), Study JUST/2014/RCON/PR/CIVI/0082, Vol. II (procedural protection of consumers), pp. 244 et seq. 792   Supra at paras. 139 et seq. 793   Infra at paras. 212 et seq. 794   Supra at para. 69. 790 791

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different from the European point of view : what finally counts is the (explicit) decision of the (respective) lawmaker on the extraterritorial application of domestic law. 196. Third, the concept of public enforcement has been reinforced by the new forms of cross-border cooperation of public authorities in civil matters. As the cooperation of Central Authorities in child abduction cases and in the recovery of maintenance demonstrates, the involvement of public authorities in the enforcement of private interests (especially of weak parties) is a valuable and effective alternative to private actions 795. However, the public authorities’ espousal of private interests for the purpose of their cross-border enforcement translates such interests into the framework of public law co-operation. Accordingly, remedies available to the individuals against the authorities are brought before administrative review bodies, not before the civil courts. The fact that the co-operation between public authorities is addressed in private law instruments does not change the legal 796 nature of such co-operation  . Nevertheless, these forms of public law co-operation demonstrate that there are revolving doors between the public and the private spheres. 197.  On balance, one must state that ultimately the concept of transnational public law litigation in domestic courts has not been endorsed in the United States where it had initially been conceived. Still, civil courts display the tendency to implement public interests in cross-border settings. These tendencies are currently found in Europe. However, it remains to be seen whether the European judges will follow the example of their American siblings and reduce the far-reaching regulatory approach of the 795 796

  Supra at paras. 158 et seq.  In the context of the Brussels II bis Regulation, the ECJ adopted a broad reading of civil matters with regard to the co-operation of public authorities.

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new EU instruments. In this respect, much will depend on the co-operation of data protection agencies in the Member States and with third States in order to prevent abuses perpetuated by powerful actors via the web. B.  The Second Illusion : Expecting International Courts Opening up Remedies for Individual Grievances Worldwide 198.  It is unquestionable that one of most important developments in international law since 1945 is found in the significant expansion of international courts and tribunals 797. At the same time, the position of the individual in international courts and tribunals has been largely enhanced, especially in human rights bodies and in investment arbitration. Consequently, the development of international law is largely determined by these bodies. This development entails a considerable increase of the issues which also relate to the distinction between public and private disputes 798. 199.  In practice, the access of the individual to international fora still depends on the permission of States to open these fora to the private claimant 799. As a matter of principle, international courts have not yet opened their doors to individual claimants on their own initiative – they do not dispose of inherent powers to expand the realm of dispute resolution to new actors 800. Conversely, States are still free to decide on individual claims   It is aligned by the expansion of international organizations, Alvarez, International Organizations (2017), pp. 262 et seq. 798  The most pertinent example in this respect is investment arbitration. 799   One should not forget that investor-State arbitration is based on BITs which are concluded by State parties, see Bjorklund, Hastings Law Journal 59 (2007), 101, 124 et seq. (on the so-called “re-espousal” of claims in ISDS). 800  Wiik, Amicus Curiae in International Courts and Tribunals (to be published in 2018), pp. 151 et seq. (comparative 797

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in “classic settings” as the Eritrea-Ethiopian Claims Tribunal demonstrates 801. Additional examples of the enduring use of diplomatic protection 802 are found in the recent Arctic Sunrise case (Netherlands v. Russia) decided under the 1982 United Nations Convention of the Laws of Seas 803. 200. Finally, the practice of international human rights courts with regard to the compensation of economic losses sustained by investors in the recent and following financial crises equally demonstrates that these international courts are very much reluctant to recognize the infringement of the right of property with regard to State bonds which were affected by the general restructuring of State debts in the crisis 804. In this respect, the far-reaching expectations (speculations) of hedge funds and other investors were clearly disappointed. However, there is an ongoing concern that choices of plaintiffs between different forms of dispute resolution bodies are misused to increase economic and political pressure on the defendant. Recent developments in analysis on the admission of amicus curiae briefs in international proceedings).  See supra at para. 104. 802  The Arctic Sunrise case was unusual as the legal standing of the Netherlands was based on the flag of the ship as the Greenpeace activists (arrested and detained by Russian authorities) came from eight different jurisdictions (including Russia). The claims of the Netherlands were based on Articles 58, 87 and 92, UNCLOS, which guarantee the freedom of navigation in the economic zone of other States, PCA Arbitral tribunal, case 2014-02, award on the merits, 14/8/2015, paras. 165 et seq. and para. 175 (regarding the crew members) ; paras. 176 et seq. (regarding the two Dutch crew members). 803  PCA case 2014-02 ; award on the merits of 14/8/2015 ; finally the tribunal awarded damages of 5.4 million US dollars, award on compensation, 10/7/2017. 804  ECtHR, 5/2/2015, Appl. No. 23242/12, NML Capital Ltd. v. France (application inadmissible as the applicants had not exhausted all local remedies). 801

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domestic enforcement laws demonstrate that States are closing “gaps” within the domestic procedural and 805 enforcement laws  permitting aggressive litigants to impose considerable pressure not only on their procedural adversaries but also on third parties who are only indirectly involved in the respective debt collection processes 806. C.  The Third Illusion : Privatizing Dispute Resolution Is Not a Fully-Fledged Alternative to Adjudication 201. With regard to arbitration, two opposite but similar trends have been observed : on the one hand, there is a tendency to detach commercial arbitration from any interference of State courts in order to establish a transnational arbitral order 807. Privatizing arbitration is understood to be a strengthening of self-standing commercial arbitration in order to shield it against any undue influence of State authorities. The detachment of commercial arbitration includes both procedure and substance. With regard to procedure, arbitration institutions tend to provide a far-reaching framework supporting the arbitration process which excludes any intervention of State courts in the establishment of the arbitral tribunal, makes available self-standing provisional remedies before the constitution of the arbitral tribunal and offers a quality control of the award in order to avoid that it is set aside by annulment or recognition proceedings in State courts 808. With regard to   Supra at para. 170.  See the example of the Argentine debt restructuring, infra at paras. 208 et seq. 807   Supra at paras. 167 et seq. 808  According to some national laws, parties may limit the judicial review of the award in annulment proceedings. A reduced control by State courts takes place when both parties are not domiciled in the State of the arbitration. However, 805 806

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the applicable law, the detachment from State law implies the resort to international or transnational regulations and codifications (being the modern “lex mercatoria”) by arbitral tribunals 809. 202. An opposite, but structurally similar trend is found in investment arbitration, which some authors tend to classify as “public law arbitration” in strong opposition to commercial arbitration 810. These authors stress the similarity of investment arbitration to the control of administrative activities of Governments by domestic courts. Therefore, they tend to maintain a self-standing dispute resolution mechanism which largely borrows from the constitutional review of administrative and governmental acts. However, with regard to procedural law, only the transparency of the arbitration process has been addressed. Obviously, any additional procedural changes have not been proposed by these authors thus far. Conversely, the proposals of the European Commission for the future investment regimes in the framework of CETA and of the TTIP demonstrate a tendency to reduce the influence of private parties on a dispute resolution process which is considered to be dominated by public regulatory interests and not primarily by the interest of the investor in obtaining compensation for an unlawful interference of its protected rights or legitimate

State courts will still control whether the international ordre public has been infringed, Scherer, Arb. Int’l 32 (2016), 437 et seq. ; Münch, SchiedsVZ (2017), 114 et seq. 809  It should be noted that, in most commercial arbitrations, the tribunals apply national substantive law with due regard to the commercial and international nature of the case, Böckstiegel, Arb. Int’l 28 (2012), 577, 579 ; Fernandez Arroyo and Moise Mbengue, Public and Private International Law (text at footnotes 128 et seq.) on the application of public international law in commercial arbitration. 810   Supra at para. 171.

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expectations 811. At the moment, it seems difficult to predict whether the political criticism of investment arbitration will finally end in a recalibration of the system and the creation of an international investment court. “Publicness” as such cannot explain the specificities of investment arbitration, which is much better described as a hybrid between public and private dispute resolution 812. 203.  Finally, there are clear limits to any privatization of dispute resolution at the international level. These limits are found in the New York Convention and in the national enforcement laws. When it comes to the enforcement of an arbitral award, national courts still verify ex officio whether the conditions of Article V (2), NYC, have not been overstepped 813. Similar limitations apply to annulment proceedings 814. This residual control by State courts is of great importance for international arbitration as it finally guarantees that minimum standards of procedural fairness are respected in the arbitral processes. Furthermore, mandatory laws applicable to the case at hand must also be applied by the arbitral tribunal in order to avoid that the award will be set aside at the enforcement stage 815. 204. Therefore, the recognition and enforcement stage sets a clear limit against any tendency to privatize arbitration. Of course, most arbitral awards are voluntarily enforced – but this is mainly the case in the shadow of the courts’ mandatory control at the recognition stage 816. Furthermore, arbitrators pay careful  Nonetheless, these ongoing developments cannot entirely explain why the rights of investors shall be structurally reduced in the context of investment disputes. 812  Alvarez, JIDS 7 (2016), pp. 534, 546 et seq. 813  Lord Mance, Arb. Int’l 32 (2016), 223, 231 ; supra at paras. 165 and 170. 814   Scherer, Arb. Int’l 32 (2016), 437, 440 et seq. 815  See supra at para. 168. 816  According to estimations, 90 per cent of all arbitral awards are voluntarily enforced, King and Moloo, in Ferrari 811

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consideration to potential hindrances to the enforcement of the award since the annulment or the non-recognition of the award may entail their personal liability 817. As a result, it must be stated that arbitral tribunals usually preemptively apply those national mandatory rules which they consider would potentially be given application in the course of subsequent recognition and enforcement or setting aside proceedings.

(ed.), Forum Shopping in the International Commercial Arbitration Context (2013), p. 393 (at footnote 1). 817   Supra at paras. 169 et seq.

CHAPTER VII

A TENTATIVE OUTLOOK ON FUTURE AVENUES A.  Empowering the Individual : Effective Judicial Protection in Cross-Border Settings and the Commercialization of Individual Claims 1.  A closer look at the plaintiffs 205.  One of most impressive developments described in this course relates to the empowerment of the individual in the international dispute resolution framework. Today, individuals often dispose of alternative options to bring claims in different fora. Multifora disputes in the grey area of the private-public divide have grown and there is no reason to believe that this development is going to stop. So far, this course has mainly referred to the plaintiffs in the context of such disputes in a neutral way, as “individuals”, sometimes as “new actors”. However, it is important to look more closely at these actors in order to understand why dispute resolution in this field has expanded so broadly. 206. Although individuals are often targeted by the activities of public actors, as consumers, investors or businessmen, litigation in this field is most often not initiated by the individual himself but organized with the help of experienced lawyers, human rights activists, consumer organizations or trade unions 818. There is 818

 For instance, Bauman v. Daimler was not organized by Argentinian individuals but by international human rights activists and by German activists who call themselves “kritische Aktionäre” – a so-called association of “ethical shareholders”.

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a growing professionalization of non-State actors operating at the international level that create a counterweight to public actors like international organizations or Governments : non-governmental organizations are not only intervening as amici curiae in international proceedings, they are also organizing litigation at the 819 national and international level  . Litigation public relations has become an important tool, too. As a result, individuals in international disputes are often assisted by professional supporters and are not as vulnerable as they might appear at first sight. Collective litigation has become a powerful tool to overcome the weakness of the singular individual at the procedural level. As a matter of principle, these developments are mostly welcome. 207.  There is another even more important element which must be addressed here : the growing involvement of process financing and hedge funds in cross-border disputes 820. Transnational litigation has become a business ; in high value processes (like investment arbitration or mass claims), process financing is usually commissioned by plaintiff lawyers. The involvement of these actors has changed the level playing field : financially potent and experienced actors have empowered the   Goren, Geo. Wash. Int’l L. Rev. 41 (2010), 681, 682 et seq. describing the involvement of NGOs (supporting Zambia) when a vulture fund (successfully) enforced a 55 million US dollar claim (agreed in the 1980s between Romania and Zambia for the delivery of tractors) in English courts. The fund had acquired the bond for 1.7 million US dollars from Romania. Cf. Donegal Int’l v. Zambia [2007] EWHC (Com.) 6. Eventually the claim was reduced to 15 million US dollars, but the windfall remained immoral. 820  J. Blackman and R. Mukhi, “The Evolution of Modern Sovereign Debt Litigation : Vultures, Alter Egos, and Other Legal Fauna”, L. and Cont. Probl’s 73 (2010), pp. 47, 49 et seq. ; Cameron, Kalajdzic and Klement, “Economic Enablers”, in Hensler, Hodges and Tzankova (eds.), Class Actions in Context (2016), pp. 137 et seq. 819

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plaintiffs’ side. But there is also a flipside : litigation and lawsuits are seen as mere investment ; litigation and speculation are sometimes considered as twins 821. Hedge funds and vulture funds have entered the scene ; they have invented and tested new aggressive litigation strategies. The litigation surrounding the Argentinian bonds demonstrates how the situation has changed : since the 1990s, these funds have entered the scene when they bought bonds of States, often from Africa and South America, which were facing economic difficulties 822. Their business plan is to buy distressed State bonds with a large discount on their face value and to bring lawsuits for the nominal value plus interest 823. Their litigation strategy is to overcome hurdles like immunity from jurisdiction and from enforcement and to create a high nuisance value in order to settle the claim with the defendant State at a high price 824. Accordingly, multiple domestic and international fora are simultaneously used ; injunctive relief is sought not only against the defendant State but also against third parties and intermediaries.

  Muir Watt, Rev. crit. 104 (2015), 331, 332 ; Frignati, “Ethical Implications of Third-Party Funding in International Arbitration”, Arb. Int’l 32 (2016), 505 et seq. 822  Waibel, Sovereign Defaults (2011), pp. 121 et seq. (describing litigation in US courts since the 1990s). Another market strategy was to buy German and Austrian public bonds of the 1920s and 1930s and to enforce them in English and US courts, see Buxbaum, “Back to the Past : Old German Bonds and New US Litigation”, ZaöRV 73 (2013), 1 et seq. ; World Holdings LLC v. The Federal Republic of Germany, 613 F. 3d 1310 (10th Cir. 2010). 823   Muir Watt, Rev. crit. 104 (2015), 331 et seq. ; Bröhmer, in Peters et al. (eds.), Immunities in the Age of Global Constitutionalism (2015), pp. 182, 192 et seq. ; Goren, Geo. Wash. Int’l L. Rev. 41 (2010), 681, 689 et seq. 824  J. Blackman and R. Mukhi, L. and Cont. Probl’s 73 (2010), pp. 47, 49 et seq. 821

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2.  The Argentine bonds saga 208.  The most prominent example in this respect is the Argentinian sovereign bonds litigation which started in the late 1990s and has recently come to an end 825. After the economic collapse in 2001, Argentina defaulted and declared a moratorium in December 2001. Negotiations with its creditors ended 2003-2004 in a so-called Fiscal Agreement by which the debts were restructured. Argentina was forced to agree to a jurisdiction and choice of law clause to New York. This agreement opened up a business opportunity for several hedge funds : between June 2001 and September 2003 they acquired large parts of the Argentinian bonds on the secondary market 826. When Argentina rescheduled its debts with 93 per cent of its creditors, they acted as hold-outs and did not agree to the settlement. Instead, they filed a lawsuit for the payment of the nominal value of the bonds in the US Federal Court for the Southern District of New York. Eventually, NML obtained a summary judgment for a total of 284,184,632.20 US dollars, including interest 827. 209.  Having obtained several judgments for payment in American courts, the funds started enforcement proceedings in the United States and in Europe 828. At the same time, they obtained an order from Judge Griesa of the Federal Court of the Southern District of New York which enjoined Argentina and its agents from making   Benninghofen, Die Staatsumschuldung (2014), pp. 221 et seq. 826  NML Capital, a Cayman Islands Company under the control of the NML fund of New York purchased, at a little over half of their face value with a principle value of 172,153,000 US dollars. Other vulture funds followed the same business strategy. 827   NML Capital Ltd. v. Republic of Argentina, 699 F. 3d 246 (2nd Cir., 2012). 828  Muir Watt, Rev. crit. 104 (2015), 331, 346 et seq. ; NML Capital Ltd. v. Republic of Argentina [2011] UKSC 3. 825

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any payment to its creditors without (fully) paying the hold-outs 829. This injunction was based on an innovative reading of the pari-passu clause 830 in the terms of the bonds which was interpreted as guaranteeing equal payment to all creditors 831. When Argentina disregarded the injunction, Judge Griesa imposed a contempt of court order not only against the foreign sovereign 832 but also against all the banks and intermediaries involved in the Argentine payments. At the same time, the creditors started comprehensive post judgment discovery against Argentina 833. Finally, the whole payment system of Argentina was blocked. Argentina attempted to sue the   NML Capital Ltd. v. Republic of Argentina, 2021 WL 5895786 (SDNY, 2012) – NML II. 830  This clause usually reads as follows : “The payment obligations of the borrower under this Agreement rank at least pari passu with all its other present and future unsecured obligations.” It was intended to secure equal treatment of the unsecured borrower in case of insolvency with all other unsecured borrowers, Buchheit and Pam, “The Pari Passu Clause in Sovereign Debt Instruments”, Emory LJ 53 (2004), 871, 877 et seq. 831  Based on a legal opinion expressed by the late professor Andreas Lowenfeld, US courts adopted a broad reading of the clause which was not only applied to the status of unsecured creditors in case of default but also to the payment of creditors outside of insolvency situations. According to this clause, the equal treatment clause forbids any separate payment by the debtor to some creditors without including all creditors (including the hold-outs, too), Elliot Associates LP v. Banco de la Nacion, 2000 WL 1449862 (SDNY 2000), Buchheit and Pam, Emory LJ 53 (2004), 871, 878 et seq., J. Blackman and R. Mukhi, L. and Cont. Probl’s 73 (2010), pp. 47, 55 et seq. ; the High Court of Justice rejected this interpretation in Kensington Intl Ltd. v. Republic of Congo, [2003] EWHC 2331. 832  From the perspective of international law imposing such an order seems to be highly problematic. 833  The US Supreme Court permitted the discovery as the FSIA did not explicitly forbid it, Republic of Argentina v. NML Capital Ltd., 134 S. Ct. 2250 (2014). 829

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United States at the ICJ for “judicial malevolence”, but without success 834. 210.  In addition, highly symbolic assets like warships were targeted and seized in third countries 835. Investment arbitration (and the high costs of these proceedings) was used as an additional vehicle to increase pressure on the defendant. Several thousand Italian bondholders initiated three parallel ICSID investment arbitration proceedings against Argentina under the ArgentinianItalian BIT 836. Of course, not all measures initiated by the different plaintiffs ended successfully. However, the most aggressive hedge funds were able to collect large profits when the new Argentinian Government settled outstanding claims in February 2016 in order to overcome the economic crisis 837. Eventually, also the Italian bondholders collected 33 per cent of the money originally claimed. 211.  It remains to be seen whether the same strategy will be equally successful with regard to the economic crisis in the Euro-zone. So far, individual lawsuits have not ended in judgments and enforcement proceedings have not taken place. One investment tribunal has   Muir Watt, Rev. crit. 104 (2015), 331, 346.  ITLOS Case No. 20, order of 15/12/2012, The Ara Libertad (Argenina v. Ghana), para. 108, ordered the unconditional release of the vessel on the grounds of the immunity of warships under Article 32 of UNCLOS and Article 3 of the 1926 Convention on the immunity of Sate-owned vessels. Furthermore, the Argentine President was forced to charter private airplanes in order to avoid having her State aircraft unlawfully confiscated. 836   Abaclat v. Argentina, ICSID Case No. ARB/07/05 (60,000 claimants) ; Ambiente Ufficio SpA v. Argentina, ICSID Case No. ARB/08/09 (90 claimants) ; Alemanni v. Argentina, ICSID Case No. ARB/07/08 (183 individuals and legal entities). 837   On 13 April 2016, the United States Federal Court of 2nd Circuit lifted the injunction after an agreement between the vulture funds and the Government had been reached. 834 835

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concluded that bonds are not investments under the Greek 838 BITs 839. In addition, States and international organizations have reacted to the litigation strategies of hedge funds by restricting enforcement possibilities 840. Finally, constitutional courts and human rights bodies have not recognized the nominal value of a State bond as fully protected property and dismissed constitutional complaints 841. Today, collective action clauses are usually included in State bonds ; their validity has been recognized by national and international courts 842. Yet, less powerful States may still be targeted again and the lack of regulatory control of hedge funds coming from offshore tax havens remains a matter of concern 843. B.  Controlling and Limiting Extraterritorial Regulatory Interventions 212.  A major challenge brought by the recent developments is the expansion of regulatory interventions of   Recent BITs expressly exclude negotiated restructurings from their material scope of application. Annex 8-B of the draft text of the EU-Canada Comprehensive Economic and Trade Agreement (CETA) specifies that negotiated debt restructuring cannot give rise to investor claims. Annex G of the United States-Uruguay BIT and Annex 10-F of the United States-Peru Trade Promotion Agreement equally exclude negotiated restructurings from the scope of investor-State dispute settlement, Ortolani, Leiden J. Int’l L. 30 (2017), 383, 385 (footnote 11). 839   Poštová banka, a.s. and Istrokapital SE v. The Hellenic Republic, ICSID Case No. ARB/13/8, Decision on Annulment, 29/9/2016. Critically annotated by Ortolani, Leiden J. In’tl L. 30 (2017), 383, 392 et seq. 840  See supra at para. 170. 841  ECtHR, 5/2/2015, Appl. No. 23242/12, NML Capital v. France. See supra at footnote 804. 842   ECtHR, 21/7/2016, Mamatas et al. v. Greece, supra at footnote 122. 843   Muir Watt, Rev. crit. 104 (2015), 331, 352 et seq., favouring an international framework for the restructuring of insolvent States. 838

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public authorities in international economic relations. As a matter of principle, the development is not entirely new : since the 1980s it has been intensively discussed in the context of anti-trust law, securities, trade controls, environmental law. In transnational litigation, the focus has been on orders compelling the production of means of evidence located abroad and on anti-suit injunctions. Recently, data protection has become an additional area of confrontation between lawmakers. The main problem of extraterritorial regulatory intervention is its onesided approach : a State imposes its mandatory regulatory framework on legal subjects outside of its territory. What counts are the effects of the specific 844 conduct in the territory of the regulating State  . Of course, the best way to overcome “jurisdictional clashes” is to agree on shared principles (and values) at a supranational level and to adopt a common policy (subject to judicial review). Modern State practice, especially in international trade relations, demonstrates that States are able to reach compromises in this respect. Recent examples relate to trade law and to the fight against terrorism. 213.  In cases where no consensus about the underlying values exists, it has been proposed to exercise extraterritorial jurisdiction (in cases involving regulatory and jurisdictional jurisdiction) according to a “rule of reason”. This approach was explicitly adopted by Section 403 of the Restatement of Foreign Relations Law (1987) 845. According to this provision, when exercising prescriptive jurisdiction, States are under an international obligation to conduct an analysis on reasonableness in order to restrain the extraterritorial negative side effects 844 845

  Ryngaert, Jurisdiction (2nd ed., 2015), pp. 32-33.   The Restatement was elaborated by the American Law Institute in order to assess the current state of public international law.

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for other States and private parties 846. Sometimes, reasonableness has been considered as a consequence of the principle of non-interference in international law. However, the legal foundations of reasonableness have remained unclear so far 847. With regard to the exercise of jurisdiction by courts, there are clear cultural differences between the approach of the common law and that of the civil law : while courts in the common law world are familiar with a comprehensive balancing of all interests involved (prominently demonstrated by the forum non conveniens doctrine), courts in the civil law world are not at ease with a general balancing of interests. As demonstrated with regard to the new General Data Protection Regulation, the approach of the EU lawmaker is rather to encourage courts and administrative authorities to strictly apply the protective regime to defendants domiciled in third States 848. 214. Nevertheless, international law provides for several ways out of the present dilemma. These are found in Chapter V of the GDPR providing for adequacy 849 decision of the European Commission  . Once the Commission has made an assessment of the (sufficient) level of protection in a third country, data transfers are permitted on the basis of bilateral agreements. According to the case law of the ECJ, these decisions are fully reviewed by the Court of Justice 850. Nevertheless, there should be a certain margin appreciation with regard to the protective standards – otherwise the EU Commission   Ryngaert, Jurisdiction (2015), pp. 164 et seq. ; Lowenfeld, Recueil des cours 245 (1994), 13 et seq. 847   Corten, “Reasonableness in International Law”, in Wolfrum (ed.), MPEPIL (2013), para. 2. 848   Supra at paras. 145 et seq. 849   Supra at paras. 149 et seq. 850  ECJ, 6/10/2015, case C-362/14, Schrems, EU :C :2015 :650, paras. 64 et seq. ; ECJ, 26/7/2017, Opinion 1/15, EU :C : 2017 :582, paras. 218 et seq. ; supra at paras. 149 et seq. 846

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could not but impose European standards to (any) third State. 215.  As a result, the extraterritorial exercise of mandatory law may be mitigated by an increased co-operation of authorities in cross-border settings. These forms of co-operation are applied in other areas, too : for instance in environmental protection, anti-trust law 851 and in the combat of bribery and corruption 852. Yet, it remains to be seen to what extent this co-operation in the field of public enforcement will be circumvented by the increased availability and accessibility of private law remedies. As the EU Directive on Cartel Damages 853 demonstrates, the legislator might finally intervene in order to restore the balance between private and public enforcement in cross-border cases 854. C.  Is There a Third Way ? Combining Public and Private Approaches 1.  Overcoming the one-sided approach of immunity 216. Public international law shields foreign States from (civil) proceedings in the courts of other States by one single instrument : sovereign immunity. Although the application of State immunity has been reduced during the last 50 years (in particular with regard to commercial activities, waiver and non-commercial torts  In competition law, the European Union concluded several Agreements concerning co-operation on anti-competitive activities (with Canada, the United States, Japan, South Korea), Ryngaert, Jurisdiction (2015), pp. 210 et seq. 852  Here, international co-operation is backed by international treaties as the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (1997), supra at para. 169. 853   Supra at footnote 230. 854  The Directive gives a priority to the protection of leniency programmes in order to strengthen the public enforcement of cartel law, Drexl, in Micklitz and Wechsler (eds.), The Transformation of Enforcement (2016), pp. 135, 139 et seq. 851

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in the State where the lawsuit is filed), the instrument itself has remained one-sided : it insulates the foreign State (including its subdivisions) from the jurisdiction of the courts of other States but it does not counterbalance the exclusion of jurisdiction with any alternative means of redress 855. 217.  This issue was addressed by the Grand Chamber of ECtHR in the landmark decision of Waite and Kennedy v. Germany 856. In this judgment, the ECtHR came to the conclusion that the immunity of the international organization was an inherent limitation of Article 6, ECHR. However, the Court added that the availability of reasonable alternative means to protect effectively the rights of the applicants had been crucial for its conclusion that Article 6 of the ECHR had not been infringed 857. 218.  Although this perspective has been largely taken up with regard to staff disputes within international organizations, it has not equally been pursued by the ECtHR with regard to other constellations of transnational (public) law litigation 858. In the same vein, municipal  Alvarez, JIDS 7 (2016), pp. 534, 544 et seq. ; different opinion, Krieger, BerDGesVR 46 (2014), 233, 249 et seq. asserting that “a plea of State immunity is therefore a signal to the forum court that adjudication belongs to another method of dispute settlement”. 856   ECtHR, 18/2/1999, Appl. No. 26083/94, Waite and Kennedy, para. 68, explained supra at paras. 45 et seq. In this case, employees of the German branch of the European Space Agency had brought labour disputes to German courts. When the international organization successfully claimed immunity, the applicants sued Germany before the ECtHR maintaining a denial of justice (Art. 6, ECHR). 857  The same line of argument had already been developed by the ICJ in its Advisory Opinion of 13/7/1954, Effect of Awards of Compensation Made by the United Nations, ICJ Reports 1954, 56, cf. supra at para. 44 (in fine). 858  State immunity is considered as an inherent restriction of Article 6, ECHR, ECtHR, 21/11/2001, Al Adsani v. United Kingdom, ECtHR 2001-XI, para. 56 ; Schill, ICSID Review 27 (2012), 87, 112 et seq. 855

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courts have been reluctant to permit human rights exceptions from State immunity 859 and the International Court of Justice has held that, at present, international law does not provide for a general exception in this regard 860. However, if one looks at the case law from the private-public perspective, the situation becomes more nuanced. With regard to State immunity, three situations must be distinguished : first, instances where an exception from immunity is applicable under the restrictive theory. Second, cases of acta jure imperii where alternative remedies are available. Third, cases of acta jure imperii where the jurisdiction of the court seised can only be based on exorbitant or residual heads of jurisdiction. (a)  Acta jure gestionis versus balancing 219.  In the legal literature, the case law of the ECtHR on the application of Article 6, ECHR (denial of justice), to sovereign immunity has often been described as a “balancing” of the two competing principles 861. At first sight, this description appears to be correct. As a starting point, the Court considers immunities as an inherent limitation of the right to access to a court 862. In addition, the Court always assesses whether this limitation is   Jones v. Saudi Arabia [2007] 1 AC 270, paras. 14-28 (a tort claim for torture in the defendant State). Additional references supra at footnote 129 ; Fox and Webb, State Immunity (2015), pp. 39 et seq. ; Krieger, BerDGesVR 46 (2014), 233, 243 et seq. ; Reinisch, in Cogan, Hurd and Johnstone (eds.), The Oxford Handbook on Int’l Organizations (2016), pp. 1048, 1066 et seq. 860  ICJ, 3/2/2012, Jurisdictional Immunities of the State (Germany v. Italy : Greece intervening), ICJ Reports 2012, para. 56, cf. supra at para. 34. 861  Explicitly Peters, in Peters et. al. (eds.), Immunities in the Age of Constitutionalism (2014), pp. 1, 14 ; Schill, ICSID Rev. 27 (2012), 87, 115 et seq. 862  ECtHR, 23/3/2010, Appl. No. 15869/02, Cudak v. Lithuania, paras. 57-59 (applying Article 11, UNCSI). 859

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proportionate in the given case. In this context, however, the Court directly refers to the UNCSI as a pertinent instrument reflecting customary international law 863. Consequently, national courts must scrutinize whether the exceptions from State immunity as endorsed by the UNCSI permit the lawsuit to proceed 864. Whenever Articles 5-17, UNCSI, were carefully assessed by the domestic courts, no disproportionate restriction of Article 6, ECHR, was found 865. Obviously, it must be stated that the ECtHR does not engage in a “balancing of competing principles” 866, but has simply endorsed the private-public divide as it is contained in the pertinent instruments of positive international law on sovereign immunities, especially in the UNCSI 867. As a result, the Court has  ECtHR, 29/6/2011, Appl. No. 34869/05, Sabeh v. France, paras. 53 et seq. ; ECtHR, 23/3/2010, Appl. No. 15869/02, Cudak v. Lithuania, paras. 54 et seq. ; ECtHR, 14/3/2013, Oleynikov v. Russia, paras. 54 et seq. (applying Article 10, UNCSI) – these judgments describe the applicable standards and instruments of international law in an almost identical wording. 864   In this context, the ECtHR has generally enlarged the procedural obligation of national courts to scrutinize thoroughly whether the underlying action qualifies as an exception from State immunity under the restrictive doctrine. 865  It should be noted that the ECtHR does not impose on the national courts the obligation to apply the UNCSI, but scrutinizes whether the national judges adopted an approach which corresponds to the rules of the UNCSI. 866  This was correctly observed by Schilling, in Peters (ed.), Immunities in the Age of Constitutionalism (2014), pp. 267, 281 : “the Strasbourg Court’s frequent acceptance of the proposition that such an extension of immunity is proportionate as long as it respects general international law . . . has nothing to do with the proportionality of the restriction of the right of access to court”. 867  Although the UNCSI has not yet entered into force (see supra at footnote 89), it is applied as an authoritative text of the positive law of State immunity. 863

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reinforced the private-public divide : any granting of immunity in a case concerning a commercial activity of the defendant State amounts to an infringement of Article 6, ECHR 868. (b)  Acta jure imperii and alternative remedies 220. Furthermore, the case law of the Strasbourg court with regard to alternative remedies against an international organization seems to be a second, valuable avenue in order to overcome the shortcomings that arise from the grant of immunity. It must be noted that the ECtHR has also taken it up in the context of State immunity : alternative remedies might also be available in the defendant State, especially when the defendant State is bound by the Convention. Already in McElhinney v. Ireland, a case which concerned a tort committed by British border police within Ireland, the Court noted that there was no reason why the lawsuit could not be brought in the United Kingdom. The Court said : “The Court moreover notes that in the circumstances of the present case it would have been open to the applicant to bring an action in Northern Ireland against the United Kingdom Secretary of State for Defence. . . . The Court also notes that in the initial correspondence between the applicant’s advisers and the United Kingdom’s representatives in the (Irish) domestic proceedings, the Government’s lawyers stated that there was no bar to an action in Northern Ireland, and the applicant’s solicitors replied that they preferred to bring the action in Ireland. They did not 868

 ECtHR, 14/3/2013, Oleynikov v. Russia, paras. 54 et seq. (referring to Article 10, UNCSI), see Marchadier, “L’immunité souveraine en matière civile dans le context du droit européen des droits de l’homme”, Rev. crit. DIP (2017), pp. 159, 162.

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refer to any procedural or other bar bringing an action in Northern Ireland . . . In these circumstances, the decisions of the Irish courts upholding the United Kingdom’s claim to immunity cannot be said to have exceeded the margin of appreciation allowed to States in limiting an individual’s right to access to court.” 869 221. Similar conclusions were made in the Zylkov v. Russia 870. In this case the Court concluded that the dismissal of a lawsuit brought in Moscow against the Russian embassy in Lithuania amounted to a denial of justice because a lawsuit in Lithuania would be barred by State immunity. This case law demonstrates the comprehensive approach of the ECtHR : before denying immunity to a foreign State (agency) or an international organization in civil litigation 871, it is necessary to look for alternative ways of legal recourse where the aggrieved individual might bring his or her claim 872. If the claim  ECtHR, 21/11/2011, Appl. No. 31253/96, Mc Elhinney v. Ireland, paras. 39-40. 870  ECtHR, 21/6/2011, Appl. No. 5613/04, Zylkov v. Russia. In this case, the applicant requested child allowance payable by the Russian Federation to parents with minor children. Domiciled in Lithuania, he applied for the allowance at the social security division of the embassy of the Russian Federation in Vilnius. When his request was denied, he instituted proceedings against the embassy as the competent authority in Moscow. However, the Russian courts dismissed the action holding that the case had to be decided by the Lithuanian courts. The ECtHR stated that this decision was a denial of justice as Russia would have invoked State immunity before the Lithuanian courts. As a result, the Court held that the dismissal of the action amounted to an infringement of Article 6, ECHR. 871  See supra at paras. 55 et seq. ; generally Reinisch, in Cogan, Hurd and Johnstone (eds.), The Oxford Handbook on Int’l Organizations (2016), pp. 1048, 1060 et seq. 872   This consideration also applies to the lawsuits brought against Germany in Greek and Italian courts for atrocities 869

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can be brought elsewhere, the granting of immunity is not a disproportionate restriction of Article 6, ECHR. As a result, the one-sided approach of the immunity defence has been mitigated with a comprehensive assessment of the available relief 873. (c)  Acta jure imperii and subsidiary jurisdiction 222.  Finally, there is a third instance to be considered : alternative access to domestic courts is not guaranteed in cases where the (alleged) violation of human rights took place in the territory of a defendant State which is not bound by the Convention 874. Here, the situation is more complicated as the jurisdiction of the court seised is not easy to establish. Yet, the doctrinal separation between State immunity and jurisdiction has often prevented courts from openly addressing jurisdictional committed by the Wehrmacht during World War II (supra at paras. 34 et seq.). As a matter of principle, alternative redress was open to the plaintiffs in German courts. Yet, on the merits, the German courts did not sufficiently take up the cases under German law of State responsibility ; cf. supra at para. 36. 873  From the perspective of Article 6, ECHR, the legal regime of the Global Funds to Combat Aids (supra at footnote 186) seems to be doubtful as its statutes do not provide for alternative redress mechanisms although the fund (being a Swiss private law foundation) benefits from immunities in Switzerland, generally Krieger, BerDGVR 46 (2013), pp. 233, 248 874  These cases often concern acts of torture committed in prisons of the defendant State, cf. ECtHR, 21/11/2001, Al Adsani v. United Kingdom, ECtHR 2001-XI, para. 56 (acts of torture committed by Kuwaiti police officers) ; ECtHR 14/1/2014, Appl. Nos. 34356/06 and 40528/06, Jones and Others v. The United Kingdom, cf. Ryngeart, “Jones v. United Kingdom : The European Court of Human Rights Restricts Individual Accountability for Torture”, Utrecht J. Int’l L. 30 (2014), 57 et seq.

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issues in these human rights lawsuits 875. In cases where foreign States (or their officials) were sued for atrocities committed on foreign soil, the jurisdiction of the court can only be based on exorbitant fora or on a forum necessitatis. It must be noted that most fora necessitatis in the national procedural laws require a sufficient connection between the cause of action and the court seised 876. Furthermore, the reluctance of international and national courts to permit these lawsuits under exorbitant heads of jurisdiction might be explained by the remoteness of the facts and evidence and by practical considerations to hear and decide these cases 877. 223. This issue was recently highlighted by the ECtHR in Nait-Liman v. Switzerland 878. The applicant, a Tunisian national who was granted asylum in Switzerland, had brought a civil action for damages against Tunisia because of the (alleged) torture he sustained when he had been abducted from Italy to Tunisia. The Swiss courts dismissed the action for want of jurisdiction – they did not apply Article 3 of the Swiss Law on Private International Law which provides for a forum necessitatis when there is sufficient connection to Switzerland. The Swiss courts did not endorse the plaintiff’s argument that the connection should be based on his (present) Swiss domicile. The ECtHR held that the decision of the Swiss courts did not violate Article 6,  In this respect, the approach of the FSIA is different as it explicitly combines immunity and personal jurisdiction, Hess, Staatenimmunität bei Distanzdelikten (1992), pp. 85 et seq. 876   Roorda and Ryngaert, RabelsZ 80 (2016), 783, 794 et seq. 877  These concerns were addressed by Lord Mance in Jones v. Ministry of the Interior of Saudi Arabia [2004] EWCA Civ. 1394, paras. 82-92 (preferring the application of forum non conveniens). 878   ECtHR, 21/6/2016, Appl. No. 51357/07, Nait-Liman v. Switzerland, Clunet 2017, 631, critically annoted by Marchandier. 875

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ECHR. The Court noted 879 that universal jurisdiction in civil matters (for action for damages) has not been recognized so far (with the exception of adhesion procedures to criminal prosecution in Belgium 880 and in Spain). With regard to the forum necessitatis, the Court held 881 that the restrictive interpretation by the Swiss Federal Tribunal was justified in order to avoid practical problems of case processing and an intrusion into the internal affairs of a foreign State. With regard to the proportionality test, the Court concluded that practical difficulties to administer evidence and possible defences in civil proceedings against defaulting defendants called for a restrictive approach. 224. On balance, one must conclude that the case law of the Strasbourg Court is much more nuanced than a (simple) balancing test of the competing rights 882 on access to justice and international immunity  . Obviously, the Court tries to delineate core areas where the distinction between commercial and noncommercial activities can be clearly distinguished 883. In this case-group, the case law of the Court has reinforced   ECtHR, 21/6/2016, Appl. No. 51357/07, Nait-Liman v. Switzerland, paras. 49 et seq. 880  In 1999, Belgium adopted a law providing for universal jurisdiction in the case of certain international crimes, even committed outside of Belgium. When several adhesion claims were brought against former heads of State (including George W. Bush and Ariel Sharon), combined with criminal prosecutions, Belgium faced diplomatic protests and a case at the ICJ, Case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), ICJ Reports 2002, 3. In 2003, the law was repealed, Roorda and Ryngaert, RabelsZ 80 (2016), 783, 801 et seq. 881   ECtHR, 21/6/2016, Appl. No. 51357/07, Nait-Liman v. Switzerland, paras. 101 et seq. 882  Marchadier, Rev. crit. DIP, 2017, pp. 159, 166 et seq. criticizing the approach of the ECtHR. 883  This approach reinforces predictability and legal certainty which are of specific importance for the determination of the jurisdiction of the court seised, see supra at para. 215. 879

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the position of the individual claimant as the right to access to court applies comprehensively to any civil and commercial claims. In the area of sovereign acts, the case law appears again to be more nuanced when the Court refers to alternative redress (including to remedies within the defendant State) 884. The most problematic situation occurs when lawsuits related to acta jure imperii are brought in subsidiary or exorbitant heads of jurisdiction. In this instance, the Court does not impose any obligation on the Convention States to apply these rules of jurisdiction. However, the case law demonstrates that the private-public divide is still the basic approach to immunities under public international law with the caveat that it must be put in the broader context of the (procedural) rules of applicable private international law. 2.  The distinction between main and incidental questions 225.  Private international law often provides for more balanced solutions, especially in the so-called grey area, as the example of State bonds demonstrates. Denying State immunity in these cases does not necessarily entail that the lawsuit will be permitted or prevail on the merits – additional instruments of private international law may be applied to assess and to protect the (sovereign) interests of the defendant and to achieve a more balanced solution. For instance, as the sovereign bond litigation commenced in Austria against the Hellenic Republic demonstrates, denying sovereign immunity does not entail that the courts have jurisdiction to hear the cases. It remains to be seen whether the Austrian courts may base their jurisdiction against the Hellenic Republic on Articles 17 and 18 or Article 7, No. 1, of the Brussels I bis 884

 Different opinion Marchadier, Rev. crit. DIP, 2017, pp. 159, 169.

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Regulation 885. In this respect, the public interest involved might entail a narrow interpretation of specific (and even protective) heads of jurisdiction 886. Finally, in these cases the plaintiffs may still benefit from an alternative : to bring their claims against the Hellenic Republic in Greek courts (which includes a final resort to the European Court of Justice and – additionally – to the European Court of Human Rights) 887. 226. Against this backdrop, the reasoning of the German Federal Court in the Greek bond cases 888 does not appear to be convincing : the court wrongly placed the gravamen of the lawsuit on the question of whether the Greek legislator was empowered to retroactively impose a collective action clause on the existing bonds 889. Accordingly, the Court qualified the lawsuits (mainly) as tortious, the Greek law being the (allegedly) wrongful act 890. Yet, this qualification goes too far : in substance, the plaintiffs requested the repayment of  In the meantime, these issues have been referred to the ECJ, see supra at footnote 115. 886  In the context of Article 7, No. 2, of the Brussels I bis Regulation, the ECJ has developed a restrictive approach in order to avoid a too strong multiplication of available fora with few substantive connections to the course of action. See recently Stadler, “Der deliktische Erfolgsort als internationaler Gerichtsstand bei reinen Vermögensdelikten”, in Festschrift Geimer (2017), pp. 715 et seq. 887   The available resort to supranational and international courts has a direct impact on the effective judicial protection of the bondholders : they can rely on these courts to finally review their claims. 888  BGH, 8/3/2016, NJW (2016), 1659 – quoted literally supra at para. 28. 889   Bröhmer, in Peters et al. (eds.), Immunities in the Age of Global Constitutionalism (2015), pp. 182 et seq. (regarding a decision of the Italian Corte di Cassazione denying immunity in this constellation). 890  From the point of view of jurisdiction, it appears difficult to assume the jurisdiction of German courts under Article 7, No. 2, of the Brussel I bis Regulation : the damage 885

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their bonds according to their original terms without any consideration of the Greek law 891. As the bonds had been placed and traded on the stock exchanges of European market places, there was no need to qualify the lawsuit as jure imperii and to dismiss it from the outset. The impact of the Greek law was not the primary objective of the suit, but, rather, an incidental question : what the claimants requested was the repayment of their bonds 892. On the merits, it might turn out that the Greek austerity measures are qualified as unlawful (either according to Greek or to European law) 893. As a result, it must be stated that a comprehensive view of the case at hand from public and private international law might entail a more balanced result than dismissing the lawsuit from its very outset. Or, to put it the other way around : State immunity is not the only available defence to address sovereign concerns of a dispute (even of a dispute involving a foreign State as a party) 894. 227. These different approaches to State immunity and to the public interest in transnational litigation were (in substance) addressed in the case C-226/13, Fahnenbrock and Others 895. In his conclusions of 9/12/ 2014 896, Advocate General Bot qualified the underlying dispute as “jure imperii” because the Greek legislature’s did not occur in Germany, but in Greece as the bonds were deposited at the Greek Central Bank. 891  Rather by chance, the claims were brought as tort claims because of the exchange of the original bonds by the devaluated new bonds. 892   NML Capital Ltd. v. Republic of Argentina [2011] UKSC 31, paras. 38 et seq. (per Lord Phillips). 893  See supra at para. 225. 894   Hess, BerDGesell.VR 40 (2003), 107, 123 et seq. 895  The issue at stake was whether the lawsuits of German bondholders could be served to the Greek Government under Article 1 of the EU Service Regulation, see supra at footnote 107. 896  Conclusion AG Bot, 9/12/2014, case C-226/13, EU :C :2014 : 2424.

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action was taken in the exceptional context of an operation restructuring Greek private debt in order to prevent a complete default by Greece by compelling creditors to accept a debt reduction. The AG said : “68. . . . Those actions, undertaken in order to safeguard the financial and economic structure of the Hellenic Republic and, more broadly, to preserve the financial stability of the euro zone as a whole, and appearing inextricably linked to the monetary policy of the Union, are characteristic manifestations of national sovereignty. 69. I must make it clear that it is not from the adoption of collective action clauses that I infer a manifestation of State authority. . . . The Treaty establishing a European Stability Mechanism attests to the importance of those clauses which are now compulsorily inserted in debt agreements by Member States in the euro zone when they borrow from private creditors.  The retroactive, compulsory insertion of those clauses in the conditions for the issue of current bonds for reasons relating to the higher interests of the Greek State, and of the Member States in the euro zone as a whole, on the other hand, constitutes a manifestation of State authority. 70.  I infer from this that the action brought by the minority holders against the Member State following the exchange of the securities necessarily puts in issue the liability of the Greek State for acts performed jure imperii, and it is of no avail to argue that that exchange, intended to reduce the par value of those securities, required a majority vote . . .” 228.  In its judgment of 11/6/2015, the ECJ developed a different line of arguments. It held that the national court, when deciding on the service of the lawsuit under the Service Regulation, must not exhaustively examine whether the claim is civil and commercial. At this

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preliminary stage of the proceedings, only a preliminary assessment of whether the claim is manifestly “jure imperii” is needed. In this regard, the Court made the following assessment : “53. . . . However, the issue of bonds does not necessarily presuppose the exercise of powers falling outside the scope of the ordinary legal rules applicable to relationships between individuals. It is conceivable that a legal person governed by private law may have recourse to the market to finance its activities, in particular by issuing bonds. . . . 55.  It is true that Law No. 4050/2012 falls within the framework of the management of public finances and, more specifically, the restructuring of the public debt, in order to deal with a severe financial crisis, and it is for those purposes that it introduced the possibility of exchanging the securities in the contracts concerned. . . . 57.  . . . it is not obvious that the adoption of Law No. 4050/ 2012 led directly and immediately to changes to the financial conditions of the securities in question and therefore caused the damage alleged by the applicants. Those changes were to give effect to a decision of a majority of the bondholders on the basis of the exchange clause incorporated by that law into the contract of issue, which, furthermore, confirms the intention of the Greek State to keep the management of the bonds within a regulatory framework of a civil nature. 58.  Having regard to those considerations, it cannot be concluded that the cases in the main proceedings are manifestly not ‘civil or commercial matters’, within the meaning of Regulation No. 1393/2007 ; that regulation is therefore applicable to those cases.” 897 897

 ECJ, 11/6/2015, case C-226/13, Fahnenbrock and Others, EU :C :2015 :383.

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229.  As a consequence, the service of the lawsuit was permitted at the preliminary stage of the proceedings although the Court did not finally decide whether the defence of acta jure imperii was founded or not 898. Therefore, the Court not only looked at the immunity defence in an isolated way but it also put it in relation to the (preliminary) stage of the proceedings at hand. The restricted control permitted a more generous approach. What counted was the objective of the Service Regulation, which is to inform a party about the initiation of proceedings against it, and not to strike out proceedings even before they have started. 3.  Applying mandatory laws (foreign and international) 230. The complementarity of private and public international law is equally assumed in the merits phase of the lawsuit. In this respect, private international law provides for tools which permit the taking into account of public interests surrounding the dispute. Of course, from the perspective of public international law, recourse to private international law has the disadvantage that there are no uniform, universal rules. Instead, the municipal rules of the forum on private international law are applied ; most of them are not harmonized and often display many differences. Nevertheless, in most domestic legal orders there are institutions of private international law destined at protecting the (foreign) public interest in the private law dispute. Some of them have also been addressed by scholars of public international law 899. In this respect,  And the ECJ did not urge the national judge to make a detailed assessment but to assess whether they manifestly are acta jure imperii, ECJ, 11/6/2015, case C-226/13, Fahnenbrock and Others, EU :C :2015 :383, para. 58. 899  Cf. Fox and Webb, State Immunity (2015), Chap. 3 : “The Plea of State Immunity Distinguished from Act of State and Non-justiciability”, pp. 50 et seq. 898

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comity offers a flexible “safety valve”, providing flexible solutions. However, recent developments go further. 231. The most prominent defence relates to comity and the act of State doctrine. As I demonstrated with regard to war damages, these doctrines will usually prevent common law courts from investigating the validity of acts of a foreign sovereign committed within its territory 900. Although their scope and application are different in the United States 901 and in the United Kingdom 902, there is common ground to respect acts of foreign States performed on their territory and to apply the law of the defendant State. Yet, the doctrine is not unlimited as public policy (including the reference to international law) may prevent a court from applying it 903. A continental court may come to a similar result, especially in the context of expropriations, and respect an act of expropriation if it was made within the territory of the foreign State and did respect the basic principles of international law 904. 232. With regard to contractual claims, Article 9 of the Rome I Regulation 905 permits the application of overriding mandatory laws to a contract906. This provision  See supra at paras. 41 et seq.   Fox and Webb, State Immunity (2015), pp. 55 et seq.   Ibid., pp. 60 et seq. 903  See supra at paras. 41 et seq. 904  Wendehorst, “Anhang Article 46 EGBGB”, in Münchener Kommentar BGB (Commentary, 6th ed., 2016), paras. 12 et seq. 905  Regulation (EC) No. 593/2008 of 17 June 2008 on the law applicable to contractual obligations (Rome I), OJ 2008 L 177/109 et seq., Basedow, Recueil des cours 360 (2012), paras. 584 et seq. 906   Article 9 (Overriding Mandatory Provisions) reads as follows : “(1) Overriding mandatory provisions are provisions the respect for which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organisation, to such an extent that they

900

901 902

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might influence the interpretation of sovereign bonds and permit the application of restructuring measures as overriding provisions. This issue was recently addressed by the ECJ in the case C-135/15, Nikiforidis 907, which was again related to the Greek financial crisis. In this case, the plaintiff, a Greek school teacher at a Hellenic school in Germany, had instituted proceedings for the full payment of his salary 908. In 2010, the Hellenic Republic, which operated the school in Germany, enacted a law providing for a 12 per cent reduction of all salaries and pensions of persons employed in the public sector. In the case of Mr. Nikiforidis, the reduction amounted to almost 20,000 euros. In the proceedings before the German labour courts, the Hellenic Republic at first claimed State immunity but with no avail 909. The employment contract of Mr. Nikiforidis itself was subject to German labour law. However, the question arose whether Article 9 (3) are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract under this Regulation. . . . (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3) Effect may be given to the overriding mandatory provisions of the law of the country where the obligations arising out of the contract have to be or have been performed, in so far as those overriding mandatory provisions render the performance of the contract unlawful. In considering whether to give effect to those provisions, regard shall be had to their nature and purpose and to the consequences of their application or non-application.” 907  ECJ, 18/10/2016, case C-135/15, Nikiforidis, EU :C :2016 : 774. 908  Mr. Nikiforidis was not the sole plaintiff. Indeed, most Greek school teachers in Germany had instituted proceedings in German labour courts. 909   Federal Labour Court, 10/4/2013, NJW (2013), 2461  ; Appellate Labour Court Nuremberg, 25/9/2013, BeckRS (2015), 66710, ECLI :DE :LAGNUER :2013 :0925. 2SA253. 12.0A, paras. 70 et seq. The court held that teaching at school was not an activity jure imperii.

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of the Rome I Regulation permitted the application of the Greek Law as an overriding mandatory provision. Eventually, the ECJ held that Article 9 (3) was not applicable as this provision requires that the overriding mandatory provisions are those of the law of the country where the obligations arising out of the contract have to be or have been performed. In the case at hand, the place of performance was Germany, not Greece. However, the ECJ indicated that Article 9 of the Rome I Regulation does preclude the application of overriding mandatory provisions of other States from being taken into account as a matter of fact 910. 233. Unfortunately, the German Federal Labour Court did not uphold this indication. In its judgment of 27/4/2017 911, the court held that the substantive German labour law did not permit any adaptation of the contract as the only remedy was to dismiss the contract with an option of continuation with altered conditions 912. However, the dismissal was subject to a time-limit of six months which had elapsed long before. As a result, the Greek teachers in Germany have been exempted from the austerity measures imposed on all other employees of the Greek public sector 913.   ECJ, 18/10/2016, case C-135/15, Nikiforidis, EU :C : 2016  :774. In its judgment of 26/4/2017, the Federal Court did not apply Article 9 of the Rome I Regulation (ratione temporis) but applied the former German private international law. This issue was strongly disputed in the legal literature, cf. Martiny, “Art. 9 Rom I Verordnung”, in Münchener Kommentar (6th ed., 2016), paras. 114a114b. 911  Federal Labour Court, 26/4/2017, ECLI :DE :BAG :2017 : 260417.U.5AZR962.13.0 ;  available  at :  http ://juris. bundesarbeitsgericht.de/zweitesformat/bag/2017/2017-0807/5_AZR_962-13.pdf. 912  German technical term : Änderungskündigung. 913  The case of Mr. Nikiforidis was one of dozens of similar lawsuits, see supra at footnote 908.

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234. Although the outcome of the Nikiforidis saga is not convincing 914, Article 9 of the Rome I Regulation demonstrates that overriding principles pursuing public interests can (and should) often be applied in civil disputes. It goes without saying that overriding principles can also be derived from standards of public international law. Of course, these principles operate differently in the various legal orders and, as a result, the outcome of the disputes is not homogeneous. However, the interplay between private and public international law permits the implementation and assessment of public interests in private disputes as an incidental issue. Therefore, permitting a civil action to proceed against a State (or public) defendant does not mean that public interests are not considered in the course of the litigation 915. D.  Fragmentation and Multiplication of Processes 235. The fragmentation of international courts and tribunals has been much debated during the last decade ; however, neither private international law nor public international law has been able to address the phenomenon in a complementary way 916. Here, the   Siehr, “Deutsche Arbeitsverträge mit der Republik Griechenland und Gehaltskürzungen nach griechischem Recht”, Recht der Arbeit (2014), 206, 212 et seq. 915   The outcome of the Nikoforidis case demonstrates that there remains a litigation risk on the side of the defendant State which entails that a thorough assessment of the whole lawsuit is needed. In the case at hand, the Hellenic Republic would have been well advised to declare a dismissal of the contract (just in case). 916  Some scholars have addressed the phenomenon from both sides ; see Bjorklund, Hastings Law Journal 59 (2007), 101, 123 et seq. ; Reed, Recueil des cours 306 (2003), 181 et seq. ; McLachlan, “Lis Pendens in International Litigation”, Recueil des cours 336 (2008), 203 et seq. ; McLachlan, Shore and Weiniger, International Investment Arbitration (2017), Chap. 4, pp. 95 et seq. ; Wehland, The Coordination 914

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private-public divide has been an impediment to an overarching, comprehensive analysis. Interestingly, the limited perspectives of academia (either in private or in public international law) do not fully mirror the practice where private and public, domestic and international law remedies are more and more often combined 917. Forum shopping does not only take place between different national courts and arbitration institutions, it also includes choices between municipal and international fora 918. One of the current main challenges is precisely to apply traditional institutions and techniques of public and private international law to this new setting in order to achieve a better co-ordination of the parallel fora and to prevent repetitive and abusive litigation tactics. 1.  Splitting up disputes in parallel fora 236. The multiplication of available fora for the litigation of international disputes is a major modern development. This development is furthered by the infrastructure of international dispute resolution : many international tribunals have been established by specific treaties in order to resolve disputes arising only under that treaty 919. As a result, international courts are often not competent to comprehensively decide the disputes on their dockets 920. Arbitration clauses in investment of Multiple Proceedings in Investment Treaty Arbitration (2013). 917  The issue was recently addressed by Swarabowicz, “Identity of Claims in Investment Arbitration : A Plea for Unity of the Legal System”, in JIDS 8 (2017), 280 et seq. 918  See supra at paras. 26 et seq. on the sovereign bond litigation. 919   Bjorklund, Hastings Law Journal 59 (2007), 101, 130 (referring to WTO dispute resolution). 920  Article 31 (3) of the Vienna Convention on the Law of Treaties which refers to any applicable rule between the States parties to be integrated in the interpretation of a treaty does not empower an international court or tribunal to

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treaties and in commercial contracts are usually more broadly framed as they relate to all disputes arising out or in connection with the specific contract 921 or investment as defined by a BIT 922. As a result, the case law is fragmented and not comprehensive. This phenomenon is also well known in international procedural law which distinguishes general and specific heads of jurisdiction which are construed differently. Overall, there is a tension between the common understanding that specific heads of jurisdiction should be interpreted narrowly (being an exception from general jurisdiction) 923 and the idea that dispute resolution clauses should be interpreted broadly (in order to comprehensively solve the dispute at hand) 924. 237.  Against this background, the delineation of domestic and international proceedings in investment disputes has become a major issue. Investors are often able to choose different avenues for bringing claims for comtransgress its (limited) competences, McLachlan, Shore and Weiniger, International Investment Arbitration (2nd ed., 2017), paras. 1.63 et seq. with further references. 921   Fentiman, International Commercial Litigation (2015), paras. 2.50 et seq. 922  Arbitration clauses in investment disputes might be broader because the concept of the investment is often broadly conceived, Bjorklund, Hastings Law Journal 59 (2007), 101, 131. 923  The ECJ stresses the exceptional character of specific heads of jurisdiction and interprets them narrowly ; recently : ECJ, 28/6/2017, case C-436/16, Leventis and Vafias, EU :C :2017 :497, para. 32 (with further references). This general approach has not prevented the Court from enlarging the scope of the head of contractual claims to related claims, Schlosser, in Schlosser and Hess (Commentary, 2015), Introductory remarks to Article 7, Brussels I bis Regulation, para. 2. 924  English courts tend to interpret dispute resolution clauses broadly in the sense of “one stop shop”, Fiona Trust and Holding Corp. v. Privalov [2007] EWCA Civ. 20 ; Fentiman, International Commercial Litigation (2015), para. 2.54.

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pensation : they may start proceedings in the courts of the host State 925, before (investment) arbitral tribunals 926 or in the civil courts of third States 927. Today, State immunity does not always shield host States from civil litigation in third States as the investment relates to a commercial   A current case is the pending case Vattenfall AB and Others v. Federal Republic of Germany, ICSID Case No. ARB/12/12 – the award is expected for 2018. In a parallel action, Vattenfall successfully challenged the German Act on the termination of nuclear energy before the German Constitutional Court, judgment of 6/12/2016, 1 BvR 2821/11. The Constitutional Court held that Vattenfall could invoke the protection of property under German Constitutional Law and rely on the protection of legitimate expectations. 926  This happened in the Gazprom case which concerned the replacement of the management in a Lithuanian company entrusted with the acquisition and distribution of gas in Lithuania by the Lithuanian Ministry for Energy. The Ministry started proceedings in municipal courts whereas Gazprom initiated arbitration proceedings in the Stockholm Chamber of Commerce and investment proceedings under the Lithuanian-Russian BIT at the PCA. When the Stockholm arbitral tribunal issued an anti-suit injunction against the proceedings in Lithuania, the Supreme Court of Lithuania referred the case to the ECJ which held that the anti-suit injunction of an arbitral tribunal was not barred by the Brussels I bis Regulation, ECJ, 13/5/2015, case C-536/13, Gazprom, EU :C :2015 :316. Eventually, the parties settled the case. 927  One of the often quoted examples was the litigation initiated by the American billionaire R. Lauder against the Czech Republic concerning a dispute about broad-casting licences where parallel claims were brought by Lauder against the Czech Republic under the US-Czech BIT ; by CME (a controlled company) against the Czech Republic under the BIT Czech Republic-Netherlands. In addition, arbitration was launched at the ICC and litigation was initiated in the Czech Republic between the commercial enterprises involved, see Bjorklund, Hastings Law Journal 59 (2007), 101, 145 et seq. ; McLachlan, Shore and Weiniger, International Investment Arbitration (2017), paras. 4.171 et seq. 925

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activity within or with the host State although the core issue of the dispute often relates to regulatory activities of the host State 928. As a result, parallel actions in State courts and arbitral tribunals have become a widespread practice and a corresponding strategy. 238.  Peterson Energia Inversores v. Argentine Republic and YPF SA 929 is a current example of parallel litigation in domestic courts and investment arbitration. The case concerns the privatization of Argentina’s biggest gas and oil State-owned enterprise (YPF). In 1993, Argentina launched an IPO of YPF shares which were offered at multiple stock exchanges, including the NYSE 930. When the company was privatized, its by-laws provided for a clause which guaranteed that, in case of a takeover of the majority of the shares, the acquirer was obliged to arrange a takeover bid for all others shares of YPF. According to the bylaws, this clause should also apply where the national Government of Argentina would become the owner or exercise control over the company 931. The privatization process proved to be difficult. Finally, in April 2012, the Argentinian  This dimension is sometimes overlooked by descriptions of investment protection from the perspective of public (international) law. Example : Roberts, AJIL 107 (2013), 45, 47 et seq., 63 et seq. ; van Harten, Investment Arbitration, pp. 159 et seq. Both authors focus on the breach of the “investment treaty” (being the public international law perspective). 929   Peterson Energia Inversores v. Argentine Republic and YPF S.A. 2016 WL 4735367 (SDNY, 2016) – an appeal is currently pending at the 2nd Circuit. 930   The offering of the shares generated proceeds of more than 1.1 billion US dollars for Argentina which remained a minority shareholder. 931  From a functional point of view, the contractual clause in the bylaws was aimed to protect (remaining) investors against an expropriation of the majority of shares. They were promissed to get a 100 per cent compensation of their investment. 928

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Government, by an emergency decree, expropriated 51 per cent of YPF’s shares and appointed an “intervener” who was vested with all the executive powers of the board. The Government announced that it would not issue a tender offer. The expropriation was finalized in 2014 when Argentina took over shares of YPF held by the Spanish company Repsoil which was finally compensated 932. 239.  Peterson, a Spanish firm which held almost 25 per cent of YPF’s shares, was severely affected by the takeover and finally became insolvent. Eventually, the administrator brought a lawsuit in New York claiming damages for the non-issuing of the tender as guaranteed by the bylaws 933. The lawsuit was based on the commercial exception of the Foreign Sovereign Immunities Act 934 – the plaintiffs asserted that Argentina (and co-defendant YPF) had breached the contractual obligation contained in YPF’s bylaws when it declined to issue the tender offer. Argentina argued that the lawsuit was inadmissible because it concerned the expropriation  In the meantime, Repsoil initiated investment arbitration against Argentina which was finally settled by diplomatic protection (and political intervention), cf. King and Moloo, in Ferrari (ed.), Forum Shopping in the International Commercial Arbitration Context (2013), pp. 393, 443 et seq. 933  The lawsuit was brought by the insolvency administrator but financed by Burford Capital LLC against a success fee of 30 per cent of the total obtained in the lawsuit. 934  28 USC, § 1605 (a) (2) : “a foreign state is not immune from suit in any case : [I]n which the action is based [1] upon a commercial activity carried on in the United States by the foreign state ; or [2] upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere ; or [3] upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States”. 932

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of YPF – a sovereign act which occurred in Argentina 935. It also stressed the fact that Peterson had initiated investment arbitration procedures based on expropriation. In the first instance, the court held that the claims were acts taken in connection with a commercial activity because they were based on a commercial contractual obligation – Argentina had failed to comply with the bylaws of YPF 936. 240. Nevertheless, one might wonder whether this rather formal approach of the first instance court was appropriate : on substance, the clause was a contractual guarantee against any (partial) expropriation as Argentina promised to fully compensate all shareholders in case it would re-acquire the majority of the company. In this respect, the contractual clause simply mirrors the parallel provision in the Spanish-Argentine BIT on expropriations 937. In the context of sovereign immunities, the issue should be addressed differently : the mere fact that this obligation was contained in the bylaw of a private company should not be decisive for the qualification of the dispute as “commercial” 938 ; the operation and the objective of the clause which was targeted to an expropriation should also be taken into account 939. Peterson also demonstrates how the privatepublic divide is transgressed – this time from “public” to “private” : a clause in the bylaws of a commercial company was used as a shield against sovereign acts   Peterson Energia Inversores v. Argentine Republic and YPF S.A. 2016 WL 4735367 (SDNY, 2016). 936   Ibid. (SDNY, 2016). 937  Agreement on the Reciprocal Promotion and Protection of Investments of 3/10/1991, UNTS 1699, 188, Article V. 938  The additional exception of 28 USC, § 1605 (a) (3) for expropriations contrary to international law had not been invoked by the plaintiffs as they were not United States citizens and did not qualify under this exception. 939  This comprehensive approach is found in Article 4, UNCSI, see supra at paras. 24 et seq. 935

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(the potential expropriation of the company itself) 940. On balance, one might doubt whether the clause in the bylaws can be qualified as simply “commercial”. Nevertheless, the case demonstrates the growing complexity of investment disputes between different municipal courts and international tribunals. The multiplication of (partially) identical or similar (related) proceedings must be considered as an unwelcome development. 2. The need to avoid duplicate litigation and double payments 241. As mentioned before, the current situation in cross-border dispute resolution is marked by a growing parallelism between actions in domestic courts and in international fora, mostly investment arbitral tribunals. At both levels, the investor usually initiates the litigation process 941. In many instances, the investor disposes of several alternatives to start litigation. Yet, as a matter of principle, parallel and multiple proceedings are not a welcome development as they entail a duplication and waste of judicial resources and the danger of conflicting awards and judgments 942. Furthermore, they considerably increase the costs of litigation.  Its enforceability resulted from the jurisdiction of the New York courts to hear the dispute.  Wehland, The Coordination (2013), para. 2.65. The BIT does not permit the State party to initiate arbitration proceedings under the BIT. However, States parties may initiate administrative or court proceedings at the municipal level. 942  One might consider that “litigation strategies” aimed at instituting a multitude of legal proceedings are, as a matter of principle, an abuse of process, Philip Morris Asia Ltd. v. The Commonwealth of Australia, Award on Admissibility, 17/12/2015, PCA Case No. 2012-12, paras. 535 et seq., 588 (holding that Philip Morris’ restructuring and transfer of IP rights to its subsidiary in Hong Kong with the sole purpose of gaining treaty protection under the Australia-Hong Kong BIT was an abuse of process). 940 941

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242.  Both private and public international law provide for mechanisms to avoid duplicate litigation. From the perspective of international procedural law, one might consider applying the usual procedural mechanisms to delineate competing proceedings such as pendency, forum non conveniens or res judicata 943. The application of these doctrines is also discussed in the relationship between international courts and arbitral tribunals 944, but not in relation to international and national proceedings. According to an often quoted statement of the Permanent Court of International Justice, the courts are considered not to belong to the same level of law (international versus domestic) 945. Confronted with the issue of parallel proceedings, investment tribunals referred to the strict separation between international and municipal courts elaborated by the Selwyn case (1903) where the umpire Plumley had stated : “International arbitration is not affected jurisdictionally by the fact that the same question is in the courts of one of the nations. Such international tribunal has power to act without reference thereto, and if judgment has been pronounced by such court,   McLachlan, Shore and Weiniger, International Investment Arbitration (2017), paras. 4.169 et seq. ; Shany, Regulating Jurisdictional Relations (2007), pp. 91 et seq., Wehland, The Coordination (2013), para. 4.51. 944   McLachlan, Recueil des cours 336 (2008), 203, 387 et seq. ; Shany, Regulating Jurisdictional Relations (2007), p. 144 (stressing the “theoretic characterization” of the legal relationship). 945  PICJ, 26/3/1925, Certain German Interests in Polish Upper Silesia (Germany v. Poland), PCIJ Series A, No. 6, 20, 21 (jurisdiction). It should be noted that the PCIJ addressed the legal status of the German-Polish Mixed Arbitral Tribunals (supra at para. 89), not of domestic courts. In addition, it must be noted that the PCIJ based its judgment on several arguments (different prayers of relief, different parties, different courts). 943

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to disregard the same so far as it affects the indemnity to the individual . . .” 946 243. This dogma of a vertical relationship between international tribunals and domestic courts has been taken up in investment arbitration when tribunals stressed the difference between the legal systems (BITs and municipal law) 947. As a result, treaty rights and contract rights are strictly separated : recourse to municipal courts may be based on the agreement concluded between the investor and its counterparts in the host State while investment arbitration is based on the violation of the obligations undertaken with the investment treaty 948. At first sight, this dualistic distinction makes sense. However, there are cases where domestic courts apply international law (including BITs) in order to protect the investor 949 while there are also instances where the arbitral tribunal has to consider the facts and contractual rights assessed by the domestic court in order to assess whether the BIT   Selwyn Case (Britain v. Venezuela) (Interlocutory Decision), (1903) 9 RIAA 380, 381 (Plumley Umpire). Similar Amco Asia v. Indonesia, Award 20/11/1984, ICSID Report 1 (1983), 413, para. 177. 947  Most prominently in GAMI Investments Inc. v. Mexico, Final Award 15/11/2004, 13 ICSID Rep. 147, para. 41 (also referring to Article 27, VCLT). Cf. McLachlan, International Investment Arbitration (2017), paras. 4.87 et seq. (with further references). 948   Crawford, Arb. Int’l 24 (2008), 351, 354 et seq. 949  The application of a BIT by domestic courts depends on the status of the BIT in the domestic legal order of the host State : legal systems based on monism permit direct application while legal systems based on dualism require an implementing law. Nevertheless, there are numerous examples of a direct application of a BIT by municipal courts, see Hamida, “Investment Treaties and Domestic Courts”, in Liber Amicorum Thomas Wälde (2012), pp. 68 et seq. ; Oliveira, “The Authority of Domestic Courts in Adjudicating International Investment Disputes”, JIDS 4 (2013), pp. 175, 185 et seq. 946

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has been violated.950 Moreover, it seems to be artificial to address the investor differently in the same context : On the one hand, he is regarded as a “trader” in the commercial course of his business (“contract claim”). On the other hand, he is “assimilated” to his home State when it comes to the investment (“treaty claim”). However, the basic interests of the investor are always the same : to pursue his commercial venture and to dispose of the (full) protection under the BIT. Consequently, one should not overstate the differences between the two claims ; overlaps between the two levels cannot be denied 951. As a result, it must be stated that the dualistic approach creates more obstacles than solutions 952. 3.  Procedural tools for the co-ordination of parallel claims 244. The relationship between the two claims (the domestic one and the [public] international one) has been a recurrent topic of this course : it has already been addressed within the classical context of diplomatic protection where the requirement of exhausting local remedies 953 shall avoid duplicate or parallel litigation  This is especially the case when the investor invokes a violation of the national treatment guarantee, cf. McLachlan, Shore and Weiniger, International Investment Arbitration (2017), paras. 7.267 et seq. ; Schill, “Umbrella Clauses as Public Law Concepts in Comparative Perspective”, in idem (ed.), International Investment Law and Comparative Public Law (2010), pp. 317, 323 et seq. 951   Shany, Regulating Jurisdictional Relations (2007), pp. 125 et seq. ; Swarabowicz, JIDS 8 (2017), 280, 281 et seq. 952   Shany, Regulating Jurisdictional Relations (2007), pp. 2 et seq. ; Swarabowicz, JIDS 8 (2017), 280, 293 et seq. Similarly Lord Mance, Arb. Int’l 32 (2016), 223, 233 with regard to international arbitration and litigation : “it is preferable to co-ordinate international arbitration and litigation instead of separating them”. 953   Dugard, “Diplomatic Protection”, in Wolfrum (ed.), MPEPIL (2009), paras. 53 et seq. ; McLachlan, Shore and 950

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(and arbitration) 954. However, in investment arbitration, Article 26 of the ICSID Convention 955 and most BITs have forsaken the requirement of the prior exhaustion of local remedies 956. The investor may immediately resort to investment arbitration. In return, BITs provide for different procedural instruments as waivers, fork in the road provisions and the referral to jurisdiction clauses. In practice, their application has proved to be difficult and the solutions of the different arbitral tribunals have not always been consistent. (a)  Waiver requirements 245.  A preferred solution in modern dispute settlement in public international law is to require an explicit waiver from individuals with regard to the initiation of any other proceedings before domestic or arbitral tribunals at the moment the international procedure starts 957. This is the solution laid down at Article 1121, NAFTA, which extends the waiver not only to the investor but also to “enterprises owned and controlled by them”. This Article shall prevent litigation tactics like those used by Weiniger, International Investment Arbitration (2017), para. 4.120. 954   Shany, Regulating Jurisdictional Relations (2007), pp. 125 et seq. ; Dugard, “Diplomatic Protection”, in Wolfrum (ed.), MPEPIL (2009), paras. 53 et seq. 955  Text supra at footnote 493. 956   McLachlan, Shore and Weiniger, International Investment Arbitration (2017), para. 4.40  ; Yannaca-Small, “Parallel Proceedings”, in Muchlinski, Ortino and Schreuer (eds.), The Oxford Handbook of International Investment Law (2008), pp. 1010, 1025. 957   McLachlan, Shore and Weiniger, International Investment Arbitration (2017), paras. 4.109 et seq. Waiver clauses are not only found in investment arbitration but have become common in other areas where individual claims are espoused, for international dispute settlement, see supra at para. 99 (UNCC) and at para. 106 (compensation of holocaust victims).

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the investor Lauder who initiated several commercial and arbitration proceedings against the Czech Republic – not only in his own name, but also via companies controlled by him 958. It does not come as a surprise that the interpretation of Article 1121, NAFTA, has triggered difficult legal and factual issues 959. 246.  Although solutions based on waiver provide for legal certainty, they depend, however, on the consent of the individual 960. In addition, these clauses require identity of cause of action between the different proceedings 961. Often, a formal (instead of a functional) approach prevents sound solutions. In this respect, as I will explain later, a functional approach is to be recommended and the identity of the claims should not depend on the applicable law (international versus domestic) in the proceedings 962. Besides, a waiver must be formally and unequivocally declared and it must be notified to the other party 963. Finally, a waiver should clearly state the remedies addressed.964 Nevertheless, nowadays waivers are more   Bjorklund, Hastings Law Journal 59 (2007), 101, 154 ; Reinisch, “The Proliferation”, Festschrift Hafner (2007), pp. 107, 116 et seq., see supra at footnote 927. 959   McLachlan, Shore and Weiniger, International Investment Arbitration (2017), paras. 4.112 et seq. ; Shany, Regulating Jurisdictional Relations (2007), pp. 135 et seq. 960  In order to obtain the consent, the remedy offered must be more effective and promising than the alternatives. However, providing for attractive (even non-binding) remedies is a feasible avenue to promote waivers, as the dispute settlement framework of ICANN demonstrates, see supra at paras. 75 et seq. 961   Again, the dichotomy between international and municipal law comes into play. 962   Bjorklund, Hastings Law Journal 59 (2007), 101, 154. Different opinion, McLachlan, International Investment Arbitration (2017), para. 4.109. See infra at paras. 253 et seq. 963   McLachlan, Shore and Weiniger, International Investment Arbitration (2017), para. 4.118. 964  Usually, the waiver does not include provisional relief. 958

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and more often used – especially in situations where the chosen dispute resolution mechanism is more effective (or sometimes even without valuable alternatives). (b)  Election clauses 247.  These clauses, often designated as “fork in the road provisions”, give the investor the choice between domestic remedies and investment arbitration. However, the election is exclusive : once made, the investor cannot any longer resort to the other way of dispute settlement 965. The case law of arbitral tribunals in this context has not always been consistent. Some tribunals referred to the difference between contractual (municipal) and treaty claims in order to permit the investment dispute to proceed 966. 248.  Yet, a more balanced approach is to look at the level of protection accorded by the municipal courts and investment arbitration. If the domestic remedies are based on the same legal standards as the investment treaty, a fork in the road clause must be regarded as exclusive. Therefore, an investor choosing domestic remedies will be prevented from resorting to investment arbitration as his legal position will be fully assessed by the municipal court 967. However, in cases where the domestic courts only addressed municipal law, the initiation of investment  According to the clause, the investor must choose between different dispute settlement options but cannot resort to several avenues, see supra at para. 122. 966   CMS Gas Transmission Co. v. Argentina, Decision on Jurisdiction, 17/7/2003, ICSID Case No. ARB/01/8, para. 80 (assimilating the clause to a Calvo clause), Shany, Regulating Jurisdictional Relations (2007), pp. 63 et seq. 967   Pantechniki v. Albania, Award of 23/10/2009, ICSID Case No. ARB/07/21, para. 67 ; McLachlan, Shore and Weiniger, International Investment Arbitration (2017), para. 4.108. 965

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arbitration is still possible 968. In this constellation, the investor must firstly exhaust the domestic remedies of the host State. (c)  Jurisdiction clauses 249. Contracts between the investor and the host State often contain jurisdiction clauses in favour of the domestic courts. Several arbitral tribunals have held that these clauses cannot bar investment arbitration and that the investors could directly invoke investment arbitration 969. However, tribunals have held on the merits that no violation of the BIT could be found until the action before the local courts had been pursued 970. As a result, prior resort to the national courts was required 971. Similar clauses are sometimes found in BITs where the consent of the State to investment arbitration is made dependent on the prior resort to (its) domestic courts 972. Yet, this consent is dependent on two additional factors : on the one hand, the proceedings in the municipal courts   McLachlan, Shore and Weiniger, International Investment Arbitration (2017), paras. 4.101 et seq. ; Swarabowicz, JIDS 8 (2017), 280, 294 et seq. 969   Companía de Aguas del Aconquija SA and Compangnie Générale des Eaux v. Argentina (Vivendi I), Award of 21/11/2000, ICSID Case No. ARB/97/3 ; different outcome : Decision on Annulment of 3/7/2002 (Vivendi I). 970   Vivendi I Award (supra footnote 969), paras. 49-53 (rejecting the claim in its entirety) ; Vivendi I, Decision on Annulment (supra footnote 969), paras. 81-116 ; Shany, Regulating Jurisdictional Relations (2007), pp. 64 et seq. 971  From a systematic point of view, this requirement should qualify as a prerequisite of the investment arbitration – similarly to the exhaustion of local remedies but based on the consent of the investor. 972  Most of these cases arose in the context of BITs concluded by Argentina, McLachlan, International Investment Arbitration (2017), para. 4.122 (with further references in footnote 150). 968

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must be terminated within a limited period of time 973. On the other hand, some arbitral tribunals have carefully (and maybe too lengthily) assessed whether effective legal protection was available in the host State 974. It goes without saying that this inherent limit makes much sense. As a result, it can be stated that a careful wording of the dispute resolution clause in the BIT may avoid parallel litigation by providing for a prior resort to local remedies. As a result, the old rule of diplomatic protection can still be found in the modern law of investment protection. (d)  The specific case of umbrella clauses 250. So-called umbrella clauses further complicate parallel litigation. These clauses are aimed at bridging the distance between contractual obligations under municipal law and treaty obligations under the BIT. Umbrella clauses provide that the contracting (State) parties of a BIT oblige themselves to fully observe any obligation they may have entered into with regard to investments of nationals of the other party 975. One interpretation of the clause is that it serves to bring any contractual commitment by the host State made to the investor under the “umbrella” of the treaty. Consequently, any violation of the contractual relations amounts to a  Article X (3) of the United States-Argentina BIT provided for a period of 18 months, McLachlan, Shore and Weiniger, International Investment Arbitration (2017), paras. 4.76 and 4.122. 974   The so-called futility exception. See Urbaser SA v. Argentina, Decision on Jurisidiction, 19/12/2012, ICSID Case No. ARB/07/26, paras. 16 et seq. ; Ambiente Ufficio S.p.A. v. Argentine Republic, Decision on Admissibility, 8/2/2013, ICSID Case No. ARB/08/9, paras. 199 et seq. 975  It has to be noted that the different wording of the clauses entailed contradictory case law of investment tribunals, see McLachlan, International Investment Arbitration (2017), para. 4.133, distinguishing four different doctrinal approaches. 973

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treaty violation 976. As a consequence, some investment tribunals regarded the breach of contractual rights as an immediate breach of the BIT itself 977. Other tribunals have taken a more reluctant approach and restricted the clauses only to sovereign conduct of the host State 978. 251. With regard to concurring jurisdiction, an umbrella clause may confer immediate jurisdiction on the investment tribunal to hear the contractual claim. However, investment tribunals were reluctant in overruling arbitration clauses in the contracts. Many tribunals held that dispute resolution clauses in the contracts had to be respected 979. As a result, the investor first had to resort to the “domestic” remedies as agreed. 252.  From the perspective of international procedural law, this approach has to be applauded. In substance, it recognizes that there is a “relationship” between the remedies of private and public international law and that parallel litigation at different levels should be avoided. In addition, it also recognizes the subsidiary nature of investment protection which comes into play when the domestic remedies in the host State did not work sufficiently. As a result, it appears that a modern rule of local remedies has been re-established.   Noble Ventures Inc. v. Romania, ICSID Case No. ARB/ 01/11, award, paras. 46 et seq. ; Bjorklund, Hastings Law Journal 59 (2007), 101, 155 et seq. 977   SGS v. Philippines, Award on Jurisdiction, 29/1/2004, ICSID Case No. ARB/02/6. 978  Award, 9/3/1988, ICSID Case No. ARB/96/3, Fedax N.V. v. The Republic of Venezuela. Similar Schill, “Umbrella Clauses”, in idem (ed.), International Investment Law and Comparative Public Law (2009), pp. 317 et seq. : umbrella clauses only apply to “public law” commitments of the host State. 979  Wehland, The Coordination of Multiple Proceedings in Investment Treaty Arbitration (2013), paras. 3.20 et seq. (with further references). 976

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4.  The co-ordination of parallel cases 253. The developments in investment arbitration finally demonstrate that international and domestic proceedings must be regarded as concurring (and not as separated) proceedings aimed at regulating cross-border disputes in the borderlands of the private-public divide 980. In this respect, the perspective of public international law to look at “domestic” and “international” proceedings is (with due respect) too narrow. The domestic level is much broader as it includes proceedings with the State party (civil and administrative), proceedings in third States (based on exceptions from State immunity) and arbitration proceedings. Of course, these alternative fora are not always available, but the “non-hierarchical context” of domestic and international courts has become a reality of modern dispute resolution 981. 254. One might go one step further and consider applying rules of pendency and res judicata between national courts and international (investment) tribunals 982. However, the direct application would go too far. According to the predominant doctrine, these instruments require a “triple identity” of the relief sought, the parties   Shany, Regulating Jurisdictional Relations (2007), pp. 145 et seq.   Ibid., pp. 126 et seq. ; Wehland, The Coordination of Multiple Proceedings in Investment Treaty Arbitration (2013), paras. 3.40 et seq. In Europe, the concurrence and cooperation of domestic and supranational courts has become common practice between the ECtHR and national courts as well as between the ECJ and the court systems of EU Member States. This does not mean that this relationship has been free from tensions – nevertheless the co-operation (and control) of the national case law by international courts has been accepted by most European States (unfortunately with the exception of England). 982   Swarabowicz, JIDS 8 (2017), 280, 298 et seq. ; Wehland, The Coordination of Multiple Proceedings in Investment Treaty Arbitration (2013), paras. 6.37 et seq. 980 981

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involved and the subject matter 983. With regard to the latter, some authors suggest that not only the case at hand but also the law applied must be identical 984. Yet, this assumption is (again) based on the dualist approach of (public) international law aimed at sharply delineating “international” from “domestic” legal relationships 985. The procedural approach of private international law is different : when it comes to pendency and res judicata with respect to disputes in different courts, the identity of applicable law is not considered a prerequisite. If this were not the case, the mere assertion that a different law applies to the same case would permit to re-litigate the same case twice. As a result, it seems advisable to formulate the “same cause” in a way which refers to the facts of the dispute, not to the law applied. However, this does not exclude the possibility to resort to a review of the case under rules of international law where such a review comes close to a remedy against the decision of the national court 986. 255. In order to better co-ordinate and to mitigate parallel proceedings, international tribunal and parallel courts should resort to an expanding technique of private international law : the dialogue between judges 987. This is not a very sophisticated tool, but a practical one. When the same or largely similar claims are pending   Shany, Regulating Jurisdictional Relations (2007), pp. 138 et seq. ; Swarabowicz, JIDS 8 (2017), 280, 284 et seq. 984   McLachlan, Shore and Weiniger, International Investment Arbitration (2017), paras. 4.14 et seq. 985  This conceptual approach is correctly criticized by Swarabowicz, JIDS 8 (2017), 280, 290 et seq. ; and by Oliveira, “The Authority of Domestic Courts in Adjudicating International Investment Disputes”, J. Int’l DS 4 (2013), pp. 175, 191 et seq. 986  This exception applies to international relief for denial of justice, Swarabowicz, JIDS 8 (2017), 280, 292. 987   Hess, in Gottwald and Hess (eds.), Procedural Justice (2014), pp. 392, 438 et seq. 983

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in different courts and tribunals, judges should contact and talk to each other in order to co-ordinate the overlapping proceedings 988. The result of these direct contacts among judges might be that one instance stays the proceedings, awaiting the outcome of the parallel one. Staying the proceedings does not mean that the tribunal stops any activity, since it might be necessary to grant provisional relief in order to preserve the rights of one party. However, a co-ordination of parallel proceedings achieves procedural efficiency, reduces the burden of litigating the same case in multiple fora and avoids conflicting outcomes. The application of flexible procedural mechanisms should not be prevented by a formalistic approach based on a domestic/international law divide.

988

 As a matter of principle, the procedural rights of the parties (especially their right to be heard) must be preserved.

CHAPTER VIII

CONCLUSION : THE NORMATIVE VALUE OF THE PRIVATE-PUBLIC DIVIDE TODAY 256.  Finally, one fundamental question endures : what is the value of the private-public divide today ? Has the divide collapsed 989 ? Or does it still provide a yardstick for the delineation between domestic and international remedies, for State and non-State related disputes ? It might not come as a surprise that the answers to these questions are various as several layers and different functions of the divide must be distinguished. 257. The fundamental and inherent weakness of the divide is the absence of a consensus on its clear dividing line at both the domestic and the international levels 990. Nevertheless, as Articles 2 (1) (c) and 10 of the UNCSI demonstrate 991, there are some core areas which are considered as genuinely public – the term “acta jure imperii” describes core elements of State authority : levying taxes, exercising police and military power, setting regulatory standards for national or regional markets (including the protection of consumers and employees as well as other weaker and vulnerable parties) 992. On the other hand, there are also core commercial areas like banking, trading, shipping and the   Muir Watt, in Muir Watt and Fernández Arroyo (eds.), Private International Law and Global Governance (2014), pp. 1, 3 et seq. 990  As highlighted by Fox and Webb, State Immunity (2015), pp. 35 et seq. 991   Supra at paras. 24 et seq. 992  See supra at para. 24 on Article 2 (1) (c) and (2) of UNCSI. Consequently, the concept of the Common Law which delineates civil from criminal matters is not convincing as 989

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provision of services which are clearly subject to civil litigation and commercial arbitration 993. However, the factual investigations of this course have demonstrated that the grey area – where commercial activities involve regulatory interests of States and where State (agencies) are involved in commercial conduct – has increased. Here, the mere application of the distinction does not bring clear results. During the last 25 years, the growing grey area between governmental and commercial activities has not been consolidated by the case law of national and international courts 994. On the other hand, the legal doctrine has developed in several directions : while some authors maintain that the divide has collapsed, others tried to reinforce it from the public side. In my opinion, both approaches are not entirely convincing. As an alternative, a combined application of instruments of public international law (State immunity) and private international law (jurisdiction, conflict of laws, act of State, non-justiciability) might be the right approach : the divide can be addressed at different stages of the litigation – it can even be addressed differently at different stages 995. Furthermore, it must be stressed that both areas of law are open to fundamental values and controlling policies : in this respect, it is a huge misconception to assume that private law is only about it nevertheless excludes sovereign acts from the concept of civil and commercial activities, see supra at footnote 2. 993  See supra at paras. 24 et seq. This situation might change immediately when major commercial transactions are formally agreed by Governments in the course of diplomatic negotiations, for instance, in the course of the termination of economic sanctions. According to Article 10 (2), UNCSI, State immunity will apply to these constellations. 994   van Aaken, in Peters et al., Immunities in the Age of Global Constitutionalism (2015), pp. 131, 150 et seq. 995  A pertinent example in this regard is the judgment of the ECJ, 11/6/2015, C-226/13, Fahnenbrock and Others, EU :C :2015 :383, supra at para. 228.

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“profit making” while public law is about values. This assumption has never been true. 258. At present, the divide operates in different areas of law : within the realm of State immunity from adjudication, it delineates the scope of the jurisdiction of domestic courts in lawsuits against foreign States 996. It operates similarly in the opposite case of lawsuits brought by foreign States and other public entities in foreign courts. A second area of application relates to the delineation between dispute settlement mechanisms at the domestic and the international level 997. Here, its function of delineating domestic from international redress has lost much of its significance. Recent developments in international dispute settlement empowered the position of the individuals who can bring individual lawsuits in international human right courts, before claims commissions and investment arbitration tribunals. As the distinction between commercial and investment dispute arbitration demonstrates, the divide cannot be used in order to explain one system as “private” and the other as “public”. What counts is the application of procedural minimum standards and the respect of mandatory and protective law (domestic and international) in different proceedings. Submitting these (complex) issues either to private or to public international law would not correspond to the complexities of the legal relations involved.  It must be noted that the “divide” also entailed a bridging effect : by permitting lawsuits against foreign States in domestic courts (in cases of jure gestionis), domestic remedies replaced traditional forms of dispute settlement in public international law (diplomatic protection). 997  The ECtHR highlighted this function in Waite and Kennedy (ECtHR, 18/2/1929, Appl. No. 26083/94) where the Grand Chamber underlined the relationship between the immunity of an international organization and the availability of alternative means of dispute resolution for the affected individual, supra at paras. 45 et seq. 996

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259.  The third area where the divide is applied relates to the privatization of dispute settlement in the context of the private ordering of legal relations. Here, as a matter of principle, only private law relationships are subject to private regulation and dispute settlement (arbitration). Again, there is a danger that the private ordering does not sufficiently respect the interests of third parties and that mandatory law is not sufficiently applied. A residual control by State courts or/and other State authorities is finally needed in order to protect individuals against abuse. However, the right of the individual to defend its right in a court must also be preserved. Sports arbitration has become a telling example in this respect 998. 260.  Thus, the final question remains : should the private-public divide be cast aside once and for all ? Or can it and should it still play a role in the realm of transnational litigation ? As this study shows, completely abandoning the divide would be premature and misleading. Premature in so far as the recourse to the delineation is often made in practice and it has even been expanded ; finally because the divide corresponds to the basic understanding of the relationship between the society and the State in modern legal systems 999. For the same reason, it would be misleading to renounce the concept. However, one must be aware that the concept itself is evolving and operates differently in the diverse areas of law. In this respect, it is still a conceptual tool to explain the complementarity of private and public international law in the modern multilevel legal structure of a globalized world.

998 999

 See supra at paras. 180 et seq.   And it must be stressed that no alternative approaches suitable to replace the concept have been presented so far.

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INDEX (References are to paragraph numbers unless otherwise noted) 1980 Hague Convention, 153 et seq. 1996 Hague Convention, 153, 157 2007 Hague Child Support Convention, 159 et seq. Access to justice, 14, 36, 45, 224, fn. 157 accountability, 12 et seq., 175, fn. 716 act of State doctrine, 41, fn. 160, 103, 231 acta jure gestionis, fn. 8, 23, 29 et seq., 46 et seq., fn. 322, 192, 219 et seq., fn. 996 acta jure imperii, 1, 2, fn. 7, fn. 8, 23, fn. 108, fn. 109, 28, 30, 33 et seq., fn. 149, 40, 42, 83, fn. 322, 122, 192, 218, 220 et seq., 226 et seq., fn. 898, fn. 909, 257 et seq. adhesion contract, 76 administrative co-operation, children abduction, 196 children protection, 153 et seq., 196 maintenance claims, 158 et seq., 196 administrative fines, 54, 60, 142, 150 administrative law, 12, 172 global administrative law, 20

administrative review boards, 44 Administrative Tribunal, United Nations, 44, fn. 171 International Labour Organization, 44, fn. 177 Algiers Declaration, fn. 336, 95, fn. 378, fn. 383 Alien Tort Claims Act (ATCA), 11, fn. 43, 69, fn. 262 alternative dispute settlement mechanism, 44 alternative judicial redress, 49 American-Mexican Claims Commission, 16 amicus curiae, 71, 129, 177, fn. 781 investment arbitration, see arbitration antitrust law (also competition law), 61 EU antitrust/cartel law, 183, 188 German antitrust/cartel law, 182 US antitrust law, 71 Appeal Boards of the WTO, 9 applicable law, fn. 472, 157, 201, 246, 254 application of mandatory law (foreign and international), 230 et seq. application of overriding mandatory laws to a contract, 232

Index

arbitration, 2013 UNCITRAL rules on transparency in investment arbitration, 177 amicus curiae brief (investment arbitration), 175 annulment of the award, 165, 201, 204 application of mandatory law, 168 et seq., 184 et seq., 203 appointment of arbitrators, 164 arbitration clauses, 44, 126, 163, 180, 188, 236 bribery and corruption, 169 competence-competence, fn. 661 confidentiality of proceedings, 174 et seq. Court of Arbitration for Sport (CAS), 134 et seq., 180 et seq., 188 detachment of commercial arbitration, 201 enforcement of arbitral awards, 163, 170, 204, fn. 816 international arbitral order, fn. 84, 167 et seq., 201 international commercial arbitration, 8, 163 et seq., 167 et seq. international public law arbitration, 171 et seq., 202 invalidity of the arbitration clause, 165 investment arbitration, 19, 94, 114 et seq., 171 et seq., 202, 210, 238 et seq.

299

London Court of International Arbitration (LCIA), 114 maritime arbitration, 167, fn. 676, fn. 725 Mixed Arbitral Tribunals (TAMs), 89 et seq. non-recognition of the arbitral award, 165, 204, fn. 657 Permanent Court of Arbitration (PCA), 9, 104, 114, 134, 173 provisional remedies, 164, 201 regulatory arbitration, 75 et seq. sports arbitration, 8, fn. 282, 134, 167, fn. 694, 180 et seq. UNCITRAL Arbitration Rules, 95, 123, 163, see also 2013 UNCITRAL rules on transparency UNCITRAL Model Law on Arbitration, 163, fn. 657, fn. 718 unfair commercial practices, 169 WIPO Arbitration and Mediation Center, 80 Arctic Sunrise, 199, fn. 802 Area of Freedom, Security and Justice, 138 Argentine bonds litigation, fn. 110, fn. 465, 122, 207 et seq. armed conflicts, 37 et seq. attachments of assets (crossborder), 52 Authors Guild v. Google Inc., fn. 269, fn. 271, fn. 272 autonomous concept, 25

300

Balancing, fn. 45, 14, 35, 213, 219, 224 Barcelona Traction, 85 Bauman v. Daimler, 69, 195, fn. 818 Bilateral Investment Treaties (BITs), 114 et seq., 177, 210, 211, 236, 243 et seq. Bosnia and Herzegovina, 104 Bristol-Myers Squibb, 195 Brussels I Regulation, 63, 64 Brussels Ibis Regulation, 1, fn. 59, 55, 64, 66, fn. 246, 146, 147, 151, fn. 789, 225 Brussels IIbis Regulation, 162 Build, Operate, Own (BOO) contract, 115 Build, Operate, Transfer (BOT) contract, 115 Central Authorities, fn. 212, 152 et seq., 159 et seq. choice-of-law clause, 26, 117, fn. 472, 208 civil and commercial claims, 54, 224 civil and commercial matters (also disputes), 1, fn. 73, 56, 134, 152, 163 civil litigation, 8, 61 et seq., fn. 265, 109, 122 claims (public international law), 163 collective action clause, 26 et seq., 211, 226 et seq. collective litigation (also redress), 68, 70, 73 et seq., 138, 144 class action, 69, 71 et seq., 151, 195 class action settlement, fn. 30, 70 et seq. collective actions (GDPR), 147

Index

collective lawsuit, 144 collective proceedings, 147 comity, 231 commercial activity, 23, 25, 43, 216, 219, 224, 257 commercial acts, 25 commercial transactions, 24 et seq., 30 compensation of shareholders, 111 et seq., 240 Comprehensive Economic and Trade Agreement (CETA), 13, 124, 173, 202 concession contract, 115 conciliation, fn. 35, 44 conflict of laws, 67, 96, 194, 257 see also private international law consolidation of proceedings (cross-border), 147 constitutional municipal law, 87 consumer, 63 et seq., fn. 240 associations, 194 organizations, 79, 206 protection, 61, 64 et seq., 257 contempt of court, 209 counterclaim, related, 124 court-appointed experts on foreign soil, 52 cybersquatting, 76 Dallal v. Bank Mellat, 88 Dames & Moore v. Regan, 98 data, collective actions (GDPR), see collective litigation exchanges, 6, 149 processor, 142, 146, 150 protection, 20, 53, 64, 69, 138 et seq., fn. 564, fn. 585, 194, 212 subjects, 139 et seq., fn. 570, fn. 588

Index

transfer to third States, 149 et seq. free movement of personal data, 140 General Data Protection Regulation (GDPR), 139 et seq., 194, 213 et seq. adequacy decision (GDPR), 148 et seq., fn. 603-604, 214 democracy, 12 diplomatic protection, 18, 83 et seq., 93, 94, 97, 107, 123, 199, 244 direct application of mandatory public laws, 192 dogma of vertical relationship (international tribunals – national courts), 243 Domain Name System (DNS), 75, 78 domain names, assignment of, 75 domestic courts, 11, 14, 17, 31, 33 et seq., 54 et seq., 222 et seq., 238 et seq. domestic courts as decentralized international courts, 191 et seq. doping, 132 et seq., 181 et seq., see also World AntiDoping Agency (WADA) Anti-Doping Administration and Management System (ADAMS), 133 German anti-doping law of 2015, 186 et seq. Dutchbat, 38 Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, 44 embargo against Iraq, 102

301

empowerment of the individual in international dispute resolution, 205 et seq. Energy Charter Treaty, 115, 118 enforcement of public law claims in foreign domestic courts, 54 et seq. Eritrea-Ethiopia Claims Commission, 104, fn. 421, 199 Eritrea-Ethiopia Claims Tribunal, see Eritrea-Ethiopia Claims Commission EU Charter of Fundamental Rights (CFR), 149, 188, see also data EU Directive on Cartel Damages, fn. 585, 215 EU Maintenance Regulation, 159 et seq. EU Trademark Regulation, fn. 246-248 European Convention on Human Rights (ECHR), 31, fn. 122, fn. 160, 41, 45, 108 et seq., fn. 441, fn. 444 Article 6, ECHR, fn. 92, fn. 147, 45, fn. 333, 174, fn. 724, 182, 183, 217 et seq., fn. 856, fn. 858, fn. 873 European Court of Human Rights (ECtHR), 31, 45 et seq., 109 et seq., 217 et seq., fn. 864-865 European Court of Justice (ECJ), fn. 7, fn. 59, 27, 55 et seq., 143, 149, 151, 162, 188, 193, 214, 228, 232 European Injunction Directive, 194 European Judicial Area, 138, 147, 193

302

European Space Agency, 45 exercise of public authority (cross-border), 52 expropriation, 30 et seq., 95, 110 et seq., 231, 238 et seq. extraterritorial application of (mandatory) national law, see territoriality extraterritorial regulatory interventions, see territoriality extraterritoriality, see territoriality Fahnenbrock and Others, fn. 109, 227 et seq. fair and equitable treatment (FET), 117, fn. 479 Federal Republic of Germany (lawsuit against), 36, 39 Federal Rules of Civil Procedure (FRCP), 72 FIFA World Cup, 134 financial markets, 6, 31 foreign court’s taking of evidence, 52 fork in the road provisions/ election clauses, 122, 244, 247 et seq. forum actoris, 146 forum necessitatis, 222 et seq. forum non conveniens, 213, 242 fragmentation and multiplication of processes, 235 et seq. Free Trade Agreement (FTA), 115 et seq. fundamental human rights, 34, 41, 51 General conditions of bonds, 26 generic top-level domain (gTLD), 77 et seq.

Index

German and Austrian slave labour compensation funds, 105 et seq. German Constitutional Court, 51 et seq. German Federal Labour Court, 233 Germany v. Italy, 36 global constitutionalism, 14, 20 global governance, 12, 171 Google Book Search settlement, 71 et seq. Greek bonds litigation, 122, 225 et seq. Greek Government-debt crisis, 26 et seq. Habitual residence of the child, 154 Hague Conference on Private International Law, 152 hearing of witness (by the consul), 152 House of Lords, 103 human rights, 9, 14, 34, 41, 108 et seq., 192, 195, 218, 222 access to international human rights courts, 32 courts, 32, 109, 200 protection of human rights, 9, 41, 108 et seq., 171 tribunals, 8 ICC Rules of Conduct to Combat Extortion and Bribery, 169 ICSID Convention, 121, 123, 244 Secretary-General, 178 identity of cause of action, 246, 254 ILC Draft Articles on Diplomatic Protection, 87, see also diplomatic protection

Index

immunities, Foreign Sovereign Immunities Act (FSIA), 239 functional immunities, 44 immunity of international organizations, 14, 37, 43 et seq. joint ventures, 48 plea of immunity, 35, 37 public private partnerships, 48 sovereign immunities, 2, 23 et seq., 49, 192, 216 et seq. State immunity, 14, 24 et seq., 33 et seq., 102, 122, 216 et seq., 225 et seq., 253, 258 UN Convention on State Immunity (UNCSI), 23 et seq., 219, 257 injunctive relief, 61 et seq., 207 intellectual property law, 61 intellectual property rights, 89, 115 international austerity measures, 110 International Centre for Settlement of Investment Disputes (ICSID), fn. 33, 19, 31, 114, fn. 472, 121, fn. 493, 123, 134, 173, 175, 178, 210, 244 International Chamber of Commerce (ICC), 80, 114, 134, 163 International Court of Justice (ICJ), 9, 34 et seq., 44, 85, 218 international courts, 12, 20, 34, 44, 46, 94, 108, 190, 198 et seq., 211, 235 et seq., 257

303

international customary law, 23, 43, 86, 114 international dispute settlement, 13 et seq., 18, 21, 98, 134, 171, 258 international judicial and extra-judicial co-operation, 152 International Labour Organization, 44 International Law Commission (ILC), 24, 85, 87 international law of warfare, 39 international litigation, 17 International Olympic Committee, 134 international organizations, 5, 11, 14, 17, 37, 211, see also immunities International Skating Union (ISU), 181 et seq. International Swaps and Derivatives Association (ISDA), 126 et seq. International Tribunal for the Law of the Sea (ITLOS), 9 international tribunals, 15, fn. 258, 90, 96, 236, 242 et seq., 255 Internet, Internet Assigned Numbers Authority (IANA), 75 Internet Corporation for Assigned Names and Numbers (ICANN), 75 et seq. inter-State dispute resolution, 171 investment, definition of, 115 investor-State dispute settlement (ISDS), 122, 173 Iran hostage crisis, 95 Iran-United States Claims Tribunal, 88, 95 et seq.

304

Iraqi Airways Company, 103 ISDA Master Agreement, 127 et seq. Italian Constitutional Court, 36, fn. 138 Joint ventures, 115 immunities – extension, see immunities jurisdiction, exclusive jurisdiction clauses, 32 exorbitant head of jurisdiction, 146, 218, 222, 224 general jurisdiction, 69, 195, 236 jurisdiction clause, 32, 244, 249 Jurisdiction (1996 Convention), 157 jurisdiction for custody matters, 154 mandatory heads of jurisdiction, 146 specific heads of jurisdiction, 236 subsidiary jurisdiction, 222 et seq. jurisprudence constante, 135, 167 jus cogens, 34 et seq., 41, 192 Kiobel, 69, 195 Kosovo, 104 Kuwait, invasion and occupation, 99 Kuwait Airways Corporation (KAC), 103 Kuwait Airways Corporation v. Iraqi Airways Company, 103 Labour and employment disputes, 46

Index

labour courts (German), 45, 232 lex causae, 169 lex fori, 25 lex mercatoria, 96, 167, 201 lex sportiva, 135, see also sports law litigation strategies, aggressive, 170, 207 loan contracts, 115 Main and incidental questions, 225 et seq. mandatory heads of jurisdiction, see jurisdiction mandatory international law, 38 Mavrommatis, 84 McElhinney v. Ireland, 220 Mixed Claims Commissions and Tribunals, 89 et seq. Morrison, 69, 195 Most Favoured Nation (MFN), 117 Nait-Liman v. Switzerland, 223 national courts, 21, 30, 46, 48, 62, 152, 184, 203, 219, 249, 254, see also domestic courts nationality planning, 116 New York Convention (NYC), 8, 19, 81, 118, 123, 134, 137, 163 et seq., 203 Nikiforidis, 232 et seq. nominal value of State bonds, 28, 207, 208, 211 non-governmental organizations, 6, 79, 206 North American Free Trade Agreement (NAFTA), 175, 245

Index

North Atlantic Treaty Organization (NATO), 37 NSA scandal, 75 OECD Convention against Bribery of 1997, 169 one place principle, 132 one stop shop, fn. 924 online dispute resolution, 8 over the counter (OTC) derivatives, fn. 15 Parallel proceedings, 103, 147, 242, 255 pari-passu clause, 209 parking debt, 57 party autonomy, 164, 170 peace treaties, 33, 86, 89 et seq. Pechstein, 180 et seq. pendency, 242, 254 Permanent Court of International Justice (PCIJ), 84 Peterson Energia Inversores v. Argentine Republic and YPF, 238 et seq. police, 52, 220, 257 private litigants, powerful, 170 precedent, 167 presumption against extraterritoriality, see territoriality private enforcement, 61, 66, 68 et seq., 191, 193 et seq. private enforcement and public interest litigation, 138 et seq. private international law, 5, 8 et seq., 19 et seq., 35, 42, 103, 136, 154, 225 et seq., 230, 235, 254, 257, see also conflict of laws private justice, 19, 170 private law enforcement, see private enforcement

305

private public attorneys, 61, 151 private remedies, 17, 139, 142 et seq., 150 et seq. private-public divide, 10 et seq., 16 et seq., 21, 23 et seq., 32 et seq., 47, 49, 81, 83, 92, 97, 140, 146, 151, 189, 191 et seq., 205, 219, 224, 235, 240, 253, 256, 260 private-public partnership, 7, see also immunities procedural remedies, 139 process financing, 207 financers, 6, 170 production-sharing agreements, 115 prohibition against torture, 41 prohibition of denial of justice, 118 protection of privacy, 109, 194 public acts, 2, 23, see also acta jure imperii public authorities, 4, 17, 54 et seq., 59, 70, 74, 146, 151 et seq., 158, 162, 172, 193, 196, 212 cross-border enforcement of private claims by public authorities, 152 et seq. public claims, 17, 54 et seq., 162 public enforcement, 61, 142 et seq., 196, 215 public law claims, 18, 50, 54 et seq., 163 public policy, 103, 165, 167 et seq., 231 public policy exception, 41 public supervision, 139 Pula Parking, 56 et seq.

306

Rahmatullah (No. 2) v. Ministry of Defence and Another, 41 recognition of decisions, 157 regulatory litigation, 61, 70, 74 res judicata, 88, 242, 254 respect for family and private life, 109 right to a fair trial, 109 right to a public hearing, 174 right to an effective remedy in civil disputes, 109 RJR Nabisco, 69 Rome I Regulation, 232, 234 Rome II Regulation, 67 rule of law, 12 rule of reason, 213 Russian constitutional court, 112 Schrems II, 64 seat of the establishment, 66 securities law, 61 service contracts, 115 service of a lawsuit, 27, fn. 109, 152, 228 et seq. Service Regulation, 27, 228 soft rules, 5 sovereign bond, 27 et seq., 30, 208, 225, 232 sovereign State activity, see acta jure imperii sports federations and associations, 132 et seq., 180, 182 et seq., 186 et seq. sports law, 132, 134 et seq., see also lex sportiva, 180, 184, 188 et seq. dispute resolution in international sports law, 132 et seq. Srebrenica, 38, 46 stabilization clause, 117 State act, 28, 41

Index

State action, 29 State bonds, 26, 31, 115, 200, 207, 211, 225, see also sovereign bond State liability based on acts of warfare, 39 State responsibility, 38 et seq., 83 Stockholm Chamber of Commerce, 114 substantive standards, 118, 139 SWAPs, 126 Swiss Federal Court, 136, 174, 181, 188, 223 Territoriality, extraterritorial application of mandatory law, 63, 67, 138, 191, 215 extraterritorial regulatory interventions, 212 et seq. extraterritoriality, fn. 43, 195 presumption against extraterritoriality, fn. 257, 195 territoriality, principle of, 50, 142 The Hague Academy of International Law, 20 tort, place where damage was sustained, 66 place where tort was committed, 66 trade unions, 6, 206 Transatlantic Trade and Investment Partnership (TTIP), 13, 124, 173, 202 transmission of a judgment, 152 transnational disputes, 15, 73

307

Index

transnational litigation, 11, 170, 190, 197, 207, 212, 218, 227, 260 tribunaux de guerre, 91 Turkish Prime Minister permit case, 51 UK Supreme Court, 41 umbrella clauses, 250 et seq. Uniform Domain-Name Resolution-Policy (UDRP), 76 United Nations, 5, 37 et seq., 44, 46, see also immunities Charter, 44 Economic and Social Council, 163 United Nations Compensation Commission, 99 et seq. United Nations Convention against Corruption (UNCAC) of 2003, 169 United Nations Convention on the Law of the Sea (UNCLOS), 199 United Nations-Mauritius Convention of 2014, 177

UN Security Council, 41, 99, 101 et seq. unjust enrichment, 55 US class action, 73, 151 US copyright law, 73 US Supreme Court, 69, 98, 195 usages of the trade, 96 VAT, 55 Versailles Treaty, 89 et seq. Waite & Kennedy v. Germany, 45, 217 et seq. waiver requirements, 244 et seq. war against terror, 41 war damages, 33 et seq., 91, 93, 104, 192, 231 World Anti-Doping Agency (WADA), 133, 181 World Anti-Doping Code, 7, 133, 186 world class, 74 Yukos, 111 et seq. Zylkov v. Russia, 221

ABOUT THE AUTHOR

Biographical Note Burkhard Hess, born on 17 July 1961 in Worms, citizen of Germany. Since September 2012 (founding) Director of the Max Planck Institute, Luxembourg, for International, European and Regulatory Procedural Law. Honorary Professor at Heidelberg University and the University of Luxembourg. Universities of Würzburg, Lausanne and Munich. First and Second State Exams (with distinction) (in 1987 and in 1992). Assistant at the University of Munich (1989-1991 and 19921995). PhD (summa cum laude) (1990) ; Dr. jur. habil. at the University of Munich (venia legendi in civil law, civil procedural law, private international law, European law and public international law) (1995). Professorship for civil law at the University of Erlangen (1995-1996). Chair for civil law, civil procedure and private international law at the University of Tübingen (1996-2003). Dean of the law faculty (2000-2002). Professor of law at Heidelberg University, Faculty of Law, and Director of the Institute for Private International, Foreign and Economic Law (2003-2012), dean (2006-2008). Judge at the Higher Court of Appeal Karlsruhe (2009-2012). Doctor honoris causa at the University of Ghent (2015) and at the International University of Thessaloniki (2016). Guest Professor at Renmin University (Beijing) (2002) ; Guest Professor (professeur invité) at the University of Paris I (Sorbonne) (2006-2009) ; Guest Professor at the University of Georgetown, Washington DC (2009) ; Scholar-in-Residence at the New York University School of Law (2016 and 2017). President of the German Association of International Procedural Law (Wissenschaftliche Vereinigung für Internationales Verfahrensrecht) (since 2009) ; Member of the Presidium of the International Association of Procedural Law ; Chairman of the ILA Committee on the Protection of Privacy in Private International and Procedural Law ; Member of the Board of the German Branch of the International Law Association (Deutsche Vereinigung für Internationales Recht) ; Member of the Council of the German Society of International Law ; Member of the Advisory Board on

309

About the Author

Private International Law (German Federal Ministry of Justice) ; External Member of the Royal Flemish Academy of Belgium for Science and the Arts ; Associate Member of the International Academy of Comparative Law ; Member of the Academia Europaea ; Honorary Corresponding Fellow of the “Associazione italiana fra gli studiosi del processo civile” (since 2015) ; Corresponding Non-Resident Foreign Academician of the Academy of Sciences of Bologna Institute (since 2016) ; Member of the “Comité français de droit international privé” (2017). Acts regularly as an expert for private international and procdural law for the European Commission, the European Parliament, Council of Europe, Deutscher Bundestag and the IMF. Extensive practice and experience as a consultant and legal expert in international litigation and arbitration.

Principal Publications Monographs Staatenimmunität bei Distanzdelikten – Der private Kläger im Schnittpunkt von zivilgerichtlichem und völkerrechtlichem Rechtsschutz, Munich (1992). Intertemporales Privatrecht Ius Privatum 26, Tübingen (1998). “Aktuelle Rechtsfragen des Sports” (together with W.-D. Dressler) in Schriftenreihe der jur. Studiengesellschaft Karlsruhe, Heidelberg (1999), Heft 237 Study No. JAI/A3/2002/02 on Making More Efficient the Enforcement of Judicial Decisions within the European Union, available at : http ://www.ipr.uni-heidelberg.de/ studie/generalrep.htm. Enforcement Agency Practice in Europe (London, 2005) (with M. Andenas and P. Oberhammer). Die Reform des Gerichtsvollzieherwesens in Deutschland (2006). Mediation und andere Verfahren der konsensualen Streitbeilegung, Gutachten F zum 67. Deutschen Juristentag (2008). The Regulation (EC) 44/01 Brussels I – Application in 25 Member States (2008) (with Thomas Pfeiffer and Peter Schlosser). Europäisches Zivilprozessrecht (Lehrbuch) (2010). Zivilprozessrecht – Erkenntnisverfahren, 30. Auflage des

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About the Author

von Friedrich Lent begründeten, von Otmar Jauernig fortgeführten Lehrbuchs (2011). (translated into Spanish) Manuel de Derecho procesal civil, 30.a edición completamente revisada del manual fundado por Friedrich Lent y continuado desde la 10.a a la 29.a edición por Othmar Jauernig (2015). Interpretation of the Public Policy Exception as Referred to in EU Instruments on Private International and Procedural Law (2011) (with Thomas Pfeiffer) (Study for the European Parliament). Stellungnahme zum Vorschlag für eine Europäische Erbrechtsverordnung, Version 2009/157 (COD) vom 16.1.2012, PE 462.430 (2012) (with E. Jayme and T. Pfeiffer) (Study for the European Parliament). Study on the Regulation (EC) n. 650/2012 of July 2012 on Jurisdiction, Applicable Law, Recognition and Enforcement of Authentic Instruments in Matters of Succession and on the Creation of a European Certificate of Succession, PE 462.493 (2012) (with C. Mariottini and C. Camara). Study on the Application of the Insolvency Regulation in the 27 EU-Member States (JUST/2011/JCIV/PR/0049/A4) (with Paul Oberhammer and Thomas Pfeiffer), published as Hess, Pfeiffer and Oberhammer, European Insolvency Law (2014). Editorship Konsensuale Streitbeilegung – Akademisches Symposium aus Anlass des 65. Geburtstages von Prof. Dr. Peter Schlosser in Munich (with Stephan Breidenbach, Dagmar CoesterWaltjen, Andreas Nelle and Christian Wolf), Bielefeld (2001). Judicial Discretion – Tagung der International Association for Procedural Law, World Congress in Gent (2003) (with Marcel Storme). Wandel der Rechtsordnung – Ringvorlesung an der Tübinger Juristenfakultät im WS 2001/2002, Tübingen (2003). Grenzüberschreitungen, Festschrift für Peter Schlosser zum 70. Geburtstag (2005) (with B. Bachmann, St. Breidenbach, D. Coester-Waltjen, A. Nelle and C. Wolf). Kölner Kommentar zum Kapitalanleger-Musterverfahrensgesetz (2008) (with Fabian Reuschle and Bruno Rimmelspacher). (Since 2009) Co-Editor of the Journal IPRax : Praxis des Internationalen Privat- und Verfahrensrechts. Kölner Kommentar zum Kapitalanleger-Musterverfahr-

About the Author

311

ensgesetz (2nd ed., 2014) (with Fabian Reuschle and Bruno Rimmelspacher). Procedural Justice (Reports of the XIV. World Congress on Procedural Law Heidelberg 2011) (with Peter Gottwald). The Recovery of Maintenance in the EU and Wordwide (2014) (with Paul Beaumont, Lara Walker and Stefanie Spancken). Die Anerkennung im Internationalen Zivilprozessrecht – Europäisches Vollstreckungsrecht (2014). Judicial Reforms in Luxembourg (2014). Les dialogues des juges en Europe (2014) (with Séverine Menétry). Protecting Privacy in Private International and Procedural Law and by Data Protection, European and American Developments (2015) (with Cristina M. Mariottini). Procedural Science at the Crossroads of Different Generations (2015) (with Loïc Cadiet and Marta Requejo Isidro). EU Civil Justice – Current Issues and Future Outlook (2016) (with Maria Bergström and Eva Storskrubb). Unternehmen im globalen Umfeld – Aufsicht, Unternehmensstrafrecht, Organhaftung und Schiedsgerichtsbarkeit in Ostasien und Deutschland, Tagungsband zum 5. Internationalen Symposium der Fritz Thyssen Stiftung in Köln (2017) (with Klaus J. Hopt, Ulrich Sieber and Christian Starck). Bitburger Gespräche : Jahrbuch (2016) (with Thomas Raab). Der europäische Gerichtsverbund – Die internationale Dimension des europäischen Zivilverfahrensrechts (2017). Approaches to Procedural Law. The Pluralism of Methods (2017) (with Loic Cadiet and Marta Requejo Isidro). From Common Rules to Best Practices in European Civil Procedure (2017) (with Xandra Kramer). Commentaries “§§ 704-720a ZPO”, in Wieczorek and Schütze, Großkommentar zur ZPO (3rd ed., 1999). “§§ 22, 27, 28 KapMuG, § 32b ZPO”, in Kölner Kommentar KapMuG (1st ed., 2009). “§§ 704-721 ZPO”, in Wieczorek and Schütze, ZPOKommentar (4th ed., 2013). “Einleitung, §§ 22, 27, 28 KapMuG, § 32b ZPO”, in Kölner Kommentar KapMuG (2nd ed., 2014). “EU-Zivilprozessrecht” (Commentary, 4. Aufl., 2015) (with Peter Schlosser).

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About the Author

Articles “Zur Zustellung von Klagen gegen fremde Staaten”, Recht der internationalen Wirtschaft (1989), pp. 254-260. “Probleme der Staatenimmunität bei grenzüberschreitenden Unterlassungsklagen”, Juristische Blätter (1989), pp. 285294. “Das automatisierte Mahnverfahren”, Computer und Recht (1991), pp. 245-250. “Die Rechtsprechung zur Schiedsgerichtsbarkeit in Frankreich 1990” (with P. Schlosser), in Deutsches Jahrbuch zur Schiedsgerichtsbarkeit (1991), pp. 248-260. “The International Law Commission’s Draft Convention on Sovereign Immunity”, European Journal Int’l Law 4 (1993), pp. 269-283. “Entschädigung für Zwangsarbeit im ‘Dritten Reich’ ”, JZ (1993), 606-610. “Noch einmal : Kollisionsrecht oder ( ?) Auslegung – zum dogmatischen Verständnis des intertemporalen Kollisionsrechts des Einigungsvertrages”, JR (1994), 273-275. “Einwirkungen des Vorabentscheidungsverfahrens nach Art. 177 EGV auf das deutsche Zivilprozessrecht”, ZZP 108 (1995), 59-107. “Hochleistungssportler zwischen internationaler Verbandsmacht und nationaler Gerichtsbarkeit”, ZZP-International (1996), 371-392. “Auslandssachverhalte im Offenbarungsverfahren”, RPfleger (1996), 89-94. “Nachehelicher Unterhalt zwischen Vertragsfreiheit und sozialrechtlichem Allgemeinvorbehalt”, FamRZ (1996), 981-988. “Bemerkungen zur geplanten Übergangsregelung des Erbrechtgleichstellungsgesetzes”, FamRZ (1996), 781-785. “The Reprivatization of Land in Germany after 1990”, in von Hoffmann and Hwang (eds.), The Public Concept of Land Ownership, Frankfurt (1997), pp. 191-217. “Die Auswirkungen der Einführung des Euro auf das deutsche Privat- und Verfahrensrecht”, in Graf Vitzthum (ed.), La Coopération Franco-Allemande en Europe à l’aube du XXIe Siècle, Aix en Provence (1998), pp. 237-257. “Grunddienstbarkeit und Reallast im System dinglicher Nutzungs- und Verwertungsrechte”, AcP 198 (1998), 489515. “Völker- und zivilrechtliche Beurteilung der Entschädigung für Zwangsarbeit vor dem Hintergrund neuerer Entscheidungen deutscher Gerichte”, in Barwig (ed.), Entschädigung für Zwangsarbeit (1998), pp. 65-93.

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313

“Der Binnenmarktprozeß – neuer Verfahrenstyp zwischen nationalem und internationalem Zivilprozeßrecht”, JZ (1998), 1021-1032. “Internationale Sportschiedsgerichtsbarkeit im Licht der New Yorker Konvention zur Schiedsgerichtsbarkeit”, ZZP International (1998), 457-475. “Zwangsarbeiterklagen vor US-amerikanischen und deutschen Zivilgerichten”, Aktiengesellschaft (1999), 145-155. “Abuse of Civil Procedure in Germany and in Austria”, in Taruffo (ed.), Abuse of Procedural Rights (1999), pp. 149177. “Staatenimmunität bei Menschenrechtsverletzungen”, in FS Rolf A. Schütze (1999), pp. 269-285. “Die ‘Europäisierung’ des internationalen Zivilprozessrechts durch den Amsterdamer Vertrag – Chancen und Gefahren”, NJW (2000), 23-32. “Die Anerkennung eines Class Action Settlement in Deutschland”, JZ (2000), 373-382. “Das geplante Unterlassungsklagengesetz”, in Ernst and Zimmermann (eds.), Zivilrechtswissenschaft und Schuldrechtsreform (2001), pp. 527-548. “Die Zustellung von Schriftstücken im Europäischen Justizraum”, NJW (2001), 15-20. “Aktuelle Perspektiven der europäischen Prozessrechtsangleichung”, JZ (2001), 573-582. “Vergleichende Bemerkungen zur Rechtsstellung des Richters”, in Oberhammer (ed.), Richterbild und Rechtsreform in Mitteleuropa, Vienna (2001), pp. 1-22. “Die Integrationsfunktion des Europäischen Zivilprozessrechts”, IPRax (2001), 389-396. “Mehr Instanzen, weniger Rechtsschutz ? Zur aktuellen Situation in der internationalen Sportgerichtsbarkeit”, in WFV (ed.), Sportrecht damals und heute, Schriftenreihe Nr. 43 (2002), pp. 69-89. “Das neue Schuldrecht : Inkrafttreten und Übergangsrecht”, NJW (2002), 253-260. “Rechtliche Rahmenbedingungen der Mediation”, in Haft and von Schlieffen, Handbuch Mediation (2002), pp. 675-711. “Die VO 1206/01/EG zur Beweisaufnahme im Ausland”, ZZPInt. 6 (2002), 149 et seq. (with Achim Müller). “Aktuelle Probleme des Vorabentscheidungsverfahrens”, RabelsZ 66 (2002), 471-502. “Schuldrechtsreform und Zivilprozess”, in Dauner-Lieb, Konzen and Schmidt (eds.), Das neue Schuldrecht in der Praxis (2002), pp. 665-682.

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“Judicial Discretion (General Report)”, in Storme and Hess (eds.), Discretionary Power of the Judge : Limits and Control (2003), pp. 45-72. “Richterliches Ermessen im Zivilprozess. Die Rechtslage in Deutschland (Nationalbericht)”, in Storme and Hess (eds.), Discretionary Power of the Judge (2003), pp. 395-452. “La procédure d’Arrest (saisie de comptes bancaires) en droit allemand”, in Isnard and Normand, L’aménagement du droit de l’exécution dans l’espace communautaire – bientôt les premiers instruments, Paris (2003), pp. 223-252. “Die kollektive Durchsetzung von Schadensersatzansprüchen im Kapitalmarktrecht”, in WM (2003), pp. 2318-2324 (with C. Michalidou). “Nouvelles techniques de la coopération judiciaire transfrontière en Europe”, in Revue critique de droit international privé (2003), 215-237. “Kriegsentschädigungen im Internationalen Privat- und Verfahrensrecht”, in Berichte der Deutschen Gesellschaft für Völkerrecht, Bd. 40 (2003), pp. 107-212. “Sammelklagen im Kapitalmarktrecht”, Aktiengesellschaft (2003), pp. 113-125. “Die vorläufige Vollstreckbarkeit ausländischer Urteile im Binnenmarktprozess”, IPRax (2003), 81-91 (with T. Hub). “Les compétences externes de la Communauté européenne dans le cadre de l’article 65 CE”, in Muir-Watt, Pataut and Fuchs, Les conflits de lois et le système juridique communautaire, Paris (2004), pp. 81-101. “EMRK, Grundrechte-Charta und europäisches Zivilverfahrensrecht”, FS E. Jayme (2004), pp. 339-359. “Der Regierungsentwurf für ein Kapitalanlegermusterverfahrensgesetz – eine kritische Bestandsaufnahme”, WM (2004), 2329-2334. “Das Gesetz über Musterverfahren zum Schutz von Kapitalanlegern”, ZIP (2004), 1381-1387 (with. C. Michailidou). “Grundfragen und Entwicklungen der Parteifähigkeit”, ZZP 117 (2004), 267-304. “Die Konstitutionalisierung des Europäischen Privat- und Verfahrensrechts”, JZ (2005), 540–552. “Altman v. Austria, Ein transatlantischer Rechtsstreit um ein weltberühmtes Gemälde im Wiener Belvedere”, in FS P. Schlosser (2005), pp. 256-275. “Geschichte vor dem Richter, Entschädigungsfragen im deutsch-polnischen Verhältnis”, Forschungsberichte der Deutschen Gesellschaft für Auswärtige Politik 1/2005 “Comparative Analysis of the National Reports on Enforce-

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315

ment Agents”, in Andenas, Hess and Oberhammer (eds.) Enforcement Practice in Europe (2005), pp. 25-46. “Minimum Standards for Enforcement of Provisional and Protective Measures at the European Level”, in Andenas, Hess and Oberhammer (eds.), Enforcement Practice in Europe (2005), pp. 265-287. “The Draft Hague Convention on Choice of Court Agreements, External Competences of the European Union and Recent Case Law of the European Court of Justice”, in Nuyts and Watté (eds.), International Civil Litigation in Europe and Relations with Third States (2005), pp. 263-284. “Médiation et contentieux de la consommation”, in Cadiet, Clay and Jeuland (eds.), Médiation et arbitrage (2005), pp. 69-93. “Musterverfahren im Kapitalmarktrecht”, ZIP (2005), 17131720. “Verbrauchermediation”, in ZZP 118 (2005), 427-458. “Staatshaftung für zögerliche Justiz – ein deutschösterreichischer Rechtsvergleich”, in FS Rechberger (2005), pp. 211-226. “Aktuelle Brennpunkte des transatlantischen Justizkonflikts”, Die Aktiengesellschaft (2005), pp. 897-905. “Neue Rechtssetzungsakte und Rechtssetzungsmethoden im Europäischen Justizraum”, ZSR 124 II (2005), 183-230. “Methoden der Rechtsfindung im Europäischen Zivilprozessrecht”, IPRax (2006), 348-364. “Effektiver Rechtsschutz vor staatlichen Gerichten aus deutscher und vergleichender Sicht”, in Gottwald (ed.), Effektivität des Rechtsschutzes vor staatlichen und privaten Gerichten (2006), pp. 121-171. “L’impartialité du juge en droit allemand”, in Van Compernolle and Tarzia (eds.), L’impartialité du juge et de l’arbitre (2006), pp. 157-177. “Vom Konflikt zur Konkordanz – das Europäische Gemeinschaftsrecht und der Sport – dargestellt am Beispiel der Freizügigkeit der Sportler”, in Vieweg (ed.), Prisma des Sportrechts (2006), pp. 2-31. “Transatlantische Justizkonflikte”, in AG (2006), pp. 809818. “Die Reform der Sachaufklärung im deutschen Zwangsvollstreckungsrecht”, FS Vollkommer (2006), pp. 349-361 (with G. Vollkommer). “La participation du citoyen à l’administration de la justice en Allemagne”, in Actes du Colloque organisé le 25 novembre à Bruxelles (2006), pp. 225-236.

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“Massenklagen und Organhaftung”, in Priester and Schneider (eds.), Handbuch Managerhaftung (2007), pp. 409-426. “Die Effektuierung des Exequaturverfahrens nach der Europäischen Gerichtsstands- und Vollstreckungsverordnung”, IPRax (2007), 277-281 (with D. Bittmann). “Beweissicherung und Beweisbeschaffung im europäischen Justizraum”, IPRax (2007), 183-190 (with C. Zhou). “Die allgemeinen Gerichtsstände der Brüssel I – Verordnung”, FS Lindacher (2007), pp. 53-63. “Die Zulässigkeit materiellrechtlicher Einwendungen im Vollstreckbarerklärungsverfahren nach Art. 43 ff. EuGVO”, IPRax (2008), 25-30. “Verbesserung des Rechtsschutzes durch kollektive Rechtsbehelfe ?”, in Mansel, Dauner-Lieb and Henssler (eds.), Zugang zum Recht : Europäische und US-amerikanische Wege der privaten Rechtsdurchsetzung (2008), pp. 61-84. “Kommentierung der Einleitung zum KapMuG, des §§ 16 KapMuG, 32b ZPO”, in Kölner Kommentar zum Kapitalanleger-Musterverfahrensgesetz (2008). “Taking and Preservation of Evidence in Cross-Border Proceedings”, in Nuyts (ed.) International Litigation in Intellectual Property and Information Technology (2008), pp. 289-303. “EU Trends in Access to Justice”, in Van Rhee and Uzelac (eds.), Civil Justice between Efficiency and Quality : From Ius Commune to CEPEJ (2008), pp. 189-202. “Die Verordnungen zur Einführung eines Europäischen Vollstreckungstitels und eines Europäischen Mahnverfahrens – ein substantieller Integrationsschritt im Europäischen Zivilprozessrecht”, IPRax (2008), 305-314 (with D. Bittmann). “Die europäische Kontenpfändung aus der Perspektive eines Europäischen Vollstreckungsrechts”, FS Kropholler (2008), pp. 795-807. “Abgestufte Integration im Europäischen Zivilprozessrecht”, FS Leipold (2009), pp. 237-250. “Rechtspolitische Perspektiven der Zwangsvollstreckung”, JZ (2009), 662-668. “Aktuelle Tendenzen der Prozessrechtsentwicklung in Europa”, in Casper et al. (eds.), Auf dem Weg zu einer europäischen Sammelklage ? (2009), pp. 135-147. “Die Revisibilität ausländischen Rechts nach der Neufassung des § 545 ZPO”, NJW (2009), 3132-3136 (with R. Hübner). “Das Google Book Search Settlement – Gefahr einer

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weltweiten Amerikanisierung und Monopolisierung des Urheberrechts ?”, in Reuß and Rieble (eds.), Autorenschaft als Werkherrschaft in digitaler Zeit (2009), pp. 67-89. “Improving the Interfaces between Arbitration and European Procedural Law – the Heidelberg Report and the EU Commission’s Green Paper on the Reform of the Regulation Brussels I”, Cahiers de l’arbitrage (2010), pp. 17-30. “Cross-border Collective Litigation and the Regulation Brussels I”, IPRax (2010), 116-120. “Massenklagen und Managerhaftung”, in Priester and Schneider (eds.), Handbuch Managerhaftung (2010), pp. 391-410. “Deutsches Zivilprozessrecht zwischen nationaler Selbständigkeit und Europäischem Anpassungszwang”, Ritsumeikanen Law Review 27 (2010), pp. 191-208. “Cost and Fee Allocation in Civil Procedure”, in Basedow et al. (eds.) German National Reports to the 18th International Congress of Comparative Law (2010), pp. 161-180. “Kartellrechtliche Kollektivklagen in der Europäischen Union – Aktuelle Perspektiven”, WuW (2010), pp. 493-501 (also available in BRAK Mitteilungen, Sonderheft 5. ZPRSymposium der Bundesrechtsanwaltskammer, Potsdam, 2010). “National Report Germany”, in Hodges, Vogenauer and Tulibacka (eds.), The Costs and Funding of Civil Litigation (2010), pp. 349–372 (with R. Hübner). “Kommentierung von Artikel 81 AEUV”, in Grabitz, Hilf and Nettesheim (eds.), Das Recht der Europäischen Union I (42. Erg., 2010). “ ‘Private Law Enforcement’ und Kollektivklagen”, JZ (2011), 66-74. “Die Reform der EuGVO und die Zukunft des Europäischen Zivilprozessrechts”, IPRax (2011), 125-130. “Kommunikation im europäischen Zivilprozess”, AnwBl. (2011), pp. 321-326. “European Civil Procedure and Public International Law”, Essays in Honor of Bruno Simma (2011), pp. 932-941. “Perspektiven der gerichtsinternen Mediation in Deutschland”, ZZP 124 (2011), 135-162. “The Europeanisation of German Procedural Law”, in Lipp and Frederiksen, Reforms of Civil Procedure in Germany and Norway (2011), pp. 115-123. “Towards Minimum Standards in European Civil Procedural Law”, in Liber Amicorum Tadeus Erecinski, Vol. 1 (2011), pp. 1081-1110.

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“The Reform of the Regulation Brussels I” (Anhörung des Europäischen Parlaments, Oktober 2011). “Affected Individuals in Proceedings before the ICJ, the ITLOS and the ECHR”, in Liber Amicorum Rüdiger Wolfrum (2011), pp. 1639-1660 (with A. Wiik). “Die Reform der Verordnung Brüssel I und die Schiedsgerichtsbarkeit”, in FS Bernd v. Hoffmann (2012), pp. 648655. “Der Vorschlag der EU-Kommission zur vorläufigen Kontenpfändung – Ein weiterer Integrationsschritt im Europäischen Zivilverfahrensrecht”, FS Kaissis (2012), pp. 399-411. “Staatenimmunität und ius cogens im geltenden Völkerrecht : Der Internationale Gerichtshof zeigt die Grenzen auf”, IPRax (2012), 201-206. “Der Schutz der Privatsphäre im Europäischen Zivilverfahrensrecht”, JZ (2012), 189-193. “Mutual Recognition in the European Law of Civil Procedure”, ZVglRWiss 111 (2012), 21-37. “The Proposed Recast of the Brussels I Regulation : Rules on Jurisdiction”, in Pocar, Viarengo and Villata (eds.), Recasting Brussels I (2012), pp. 91-109. “Kartellrechtliche Kollektivklagen in der Europäischen Union. Aktuelle Entwicklungen”, in Remien (ed.), Schadensersatz im europäischen Privat- und Wirtschaftsrecht (2012), pp. 151-166. “The Brussels I Regulation : Recent Case Law of the Court of Justice and the Commission’s Proposed Recast”, Common Market Law Review 49 (2012), pp. 1075-1112. “Die Zukunft des Vorabentscheidungsverfahrens nach Art. 19 EUV und Art. 267 AEUV”, in Gsell and Hau (eds.), Zivilgerichtsbarkeit und Europäisches Justizsystem (2012), pp. 181-201. “A Coherent Approach to European Collective Redress”, in Fairgrieve and Lein (eds.), Extraterritoriality and Collective Redress (2012), paras. 6.01-6.30. “Vom Regierungsentwurf zum Mediationsgesetz”, in Fischer and Unberath (eds.), Das neue Mediationsgesetz (2013), pp. 17-28. “Carl Josef Anton Mittermaier – Zivilprozessrecht in Europa : vom 19. Jahrhundert bis in die Gegenwart”, in Baldus, Kronke and Mager (eds.), Heidelberger Thesen zu Recht und Gerechtigkeit (2013), pp. 143-159. “Cautious Steps towards the Construction of an ADR System” (with Nils Pelzer), in Steffek and Unberath (eds.), Regulation of Dispute Resolution in Germany (2013), pp. 209-238.

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“Hybride Sanierungsinstrumente zwischen der Europäischen Insolvenzverordnung und der Verordnung Brüssel I”, in Bruns, Kern, Münch, Piekenbrock, Stadler and Tsikrikas (eds.), Festschrift Rolf Stürner zum 70. Geburtstag (2013), pp. 1253-1261. “The European Small Claims Procedure in the Context of the European Law of Civil Procedure”, in Bruylant (ed.), Le temps et le droit, Hommage au Professeur Closset-Marchal (2013), pp. 231-245. “Europäische Perspektiven der Mediation in Zivilsachen”, in Dethloffs et al. (eds.), Freiwilligkeit, Zwang und Gerechtigkeit im Kontext der Mediation. Europäische und deutsche Perspektiven (2013), pp. 25-44. “ ‘Mediation Judges’ in Germany : Mutual Interference of EU Standards and National Developments”, in Van Rhee and Yulin (eds.), Civil Litigation in China and Europe, Essays on the Role of the Judge and the Parties (2014), pp. 185-194. “Standardization and Monetization : Legal Perspectives”, in von Hagen and Welker (eds.), Money as God ? The Monetization of the Market and Its Impact on Religion, Politics, Law, and Ethics (2014), pp. 80-95. “Collective Redress and the Jurisdictional Model of the Brussels I Regulation”, in Nuyts and Hatzimihail (eds.), Cross-border Class Actions (2014), pp. 59-68. “Justizielle Kooperation/Judicial Cooperation”, in Hess and Gottwald, Procedural Justice (2014), pp. 387-442. “Schiedsgerichtsbarkeit und europäisches Zivilprozessrecht”, in JZ (2014), 538-545. “Judicial Reforms in Luxembourg and Europe : International and Comparative Perspectives” (with Georgios Dimitropoulos), in Hess (ed.), Judicial Reforms in Luxembourg (2014), pp. 11-29. “Die internationale Zuständigkeit nach der Erbrechtsverordnung”, in Dutta and Herrler (eds.), Die Europäische Erbrechtsverordnung (2014), pp. 131-142. “Die Regulierung der privaten Rechtsdurchsetzung auf europäischer Ebene”, in Nietsch and Weller (eds.), Schriften der EBS Law School, Band 3 (2014), pp. 33-47. “Setting the Scene : The EU-Maintenance Regulation”, in Beaumont et al. (eds.), The Recovery of Maintenance in the EU and Worldwide (2014), pp. 331-336. “The Effective Operation of the Maintenance Regulation in the EU-Member States”, in Beaumont et al. (eds.), The Recovery of Maintenance in the EU and Worldwide (2014), pp. 385-409.

320

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“European Perspectives on Collective Litigation”, in Harsági and van Rhee (eds.), Multi-Party Redress Mechanisms in Europe : Squeaking Mice ? (2014), pp. 3-14. “Urteilsfreizügigkeit nach der VO Brüssel-Ia : beschleunigt oder ausgebremst ?”, in Adolphsen, Goebel, Haas, Hess, Kolmann and Würdinger (eds.), Festschrift zum 70. Geburtstag von Peter Gottwald (2014), pp. 295-302. “Die Legitimationskrise der Investitionsschiedsgerichtsbarkeit”, in Calliess (ed.), Herausforderungen an Staat und Verfassung, Völkerrecht-Europarecht-Menschenrechte, Festschrift zum 70. Geburtstag von Torsten Stein (2015), pp. 163-175. “Europäische Kontenpfändung : Ein wesentlicher Reformschritt zur Effektuierung grenzüberschreitender Vollstreckungen im Europäischen Justizraum” (with Katharina Raffelsieper), IPRax (2015), pp. 46–52. “Private Streitbeilegung und staatliche Justiz : auf der Suche nach der richtigen Balance”, Festschrift für Prof. Dr. Hakan Pekcanitez (2015), Band I, pp. 171-179. “Grenzüberschreitende Gewaltschutzanordnungen im Europäischen Justizraum”, in Hilbig-Lugani, Jakob, Mäsch, Reuß and Schmid (eds.), Zwischenbilanz – Festschrift zum 70. Geburtstag von Dagmar Coester-Waltjen (2015), pp. 453-460. “The Development of Lex Sportiva by the Court of Arbitration for Sport”, in Vieweg (ed.), Lex Sportiva – Beiträge zum Sportrecht, Band 42 (2015), pp. 59-76. “Rechtsstaatlichkeit und Transparenz verbessern” (with Nils Pelzer), in Gelinsky (ed.), Schlichten statt Richten ? (2015), pp. 35-45. “Prozessuale Mindestgarantien in der Verbraucherschlichtung”, in JZ (2015), 548-554. “The Protection of Privacy in the Case Law of the CJEU”, in Hess and Mariottini (eds.), Protecting Privacy in Private International and Procedural Law and by Data Protection – European and American Developments (2015), pp. 81-113. “Unionsrechtliche Synthese : Mindeststandards und Verfahrensgrundsätze im acquis communautaire/Schlussfolgerungen für European Principles of Civil Procedure”, in Weller and Althammer (ed.), Mindeststandards im europäischen Zivilprozessrecht (2015), pp. 221-235. “Schuldnerschutz bei fehlender Zustellung eines EUMahnbescheids : Regelungslücken der EuMahnVO” (with Katharina Raffelsieper), IPRax (2015), 401. “Die EU-Richtlinie zur Verbraucherstreitbeilegung : Entlastung

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oder Schwächung der Justiz ?” (with Nils Pelzer), in Stumpf, Kainer and Baldus (eds.), Festschrift zum 70 Geburtstag von Peter-Christian Müller-Graff (2015), pp. 390-399. “Der Prozess als Rechtslage – James Goldschmidt 1925 : Proceedings as a Sequence of Judicial Situations – A Critique of the Procedural Doctrine”, in Cadiet, Hess and Requejo Isidro (eds.), Procedural Science at the Crossroads of Different Generations (2015), pp. 385-391. “The State of the Civil Justice Union”, in Hess, Bergström and Storskrubb (eds.), EU Civil Justice – Current Issues and Future Outlook (2016), pp. 1-19. “Binnenverhältnisse im Europäischen Zivilprozessrecht – Grenzüberschreitende v. nationale Sachverhalte”, in von Hein and Rühl (eds.), Kohärenz im Internationalen Privatund Verfahrensrecht der Europäischen Union (2016), pp. 67-89. “The Role of Procedural Law in the Governance of Enforcement in Europe”, in Micklitz and Wechsler (eds.), The Transformation of Enforcement (2016), pp. 343-353. “Back to the Past : Brexit und das europäische internationale Privat- und Verfahrensrecht”, IPRax (2016), 409-418. “Harmonized Rules and Minimum Standards in the European Law of Civil Procedure”, Research Paper for the European Parliament, PE 556.971 (2016). “Ein Einheitliches Prozessrecht ?”, in International Journal of Procedural Law 6 (2016), 55-85. “Internationales Insolvenzrecht” (with Georgia Koutsoukou), in Kronke, Melis and Kuhn (eds.), Handbuch Internationales Wirtschaftsrecht (2nd ed., 2016), pp. 1949-1089. “Aktuelle Kontroversen um die Sportschiedsgerichtsbarkeit : Die Urteile Pechstein und SV Wilhelmshaven”, in Hess (ed.), Der europäische Gerichtsverbund – Die internationale Dimension des europäischen Zivilverfahrensrechts (2017), pp. 125-134. “59. Bitburger Gespräche : Einführung in die Tagung”, in Hess and Raab (eds.), Bitburger Gespräche : Jahrbuch, 2016, pp. 3-11. “Die EU-Datenschutzgrundverordnung und das europäische Prozessrecht”, in Schütze (ed.), Fairness, Justice, Equity, FS Geimer (2017), pp. 251-261. “Brussels I (Convention and Regulations)” (with Vincent Richard), in Basedow, Rühl, Ferrari and de Miguel Asensio (eds.), Encyclopedia of Private International Law. “Civil and Commercial Matters” (with Cristian Oro), in Basedow, Rühl, Ferrari and de Miguel Asensio (eds.),

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Encyclopedia of Private International Law (2017), pp. 346357. “Jura Novit Curia in International Commercial Arbitration – the German Perspective” (with Marcel Kahl), in Ferrari (ed.), Iura Novit Arbiter. “Massenklagen und Managerhaftung”, in Krieger and Schneider (eds.), Handbuch Managerhaftung (3rd ed., 2017). Annotations to Case Law “Gerichtsstandsvereinbarungen zwischen EuGVÜ und ZPO (BGH IX ZR 250/90)”, IPRax (1992), 358-361. “Staatenimmunität bei politischem Mord – die LetelierEntscheidung vor einem US-chilenischen Schiedsgericht”, IPRax (1993), 110-114. “Der Ausschluß österreichischer Berechtigter vom Vermögensgesetz, Besprechung der Entscheidung des österr. Verfassungsgerichtshofs vom 13.6.1992 zum Vermögensvertrag DDR-Österreich”, VIZ (1993), 331-334. “Amtshaftung als ‘Zivil- und Handelssache’ i.S.v. Art. 1 EuGVÜ, Besprechung von EuGH, 21.4.1993, Rs. C-172/91, Sonntag/Waldmann”, IPRax (1994), 10-17. “Urteilsanerkennung, Inlandskonkurs und die Tücken der internationalen Zustellung (OLG Saarbrücken, 5 W 96)”, IPRax (1995), 16-19. “Anmerkung zu BVerfG, 8.10.1996, 1 BvR 875/92”, JZ (1997), 409 et seq. “Die begrenzte Freizügigkeit einstweiliger Verfügungen nach Art. 24 EuGVÜ –Besprechung von EuGH, 17.11.1998, Rs. C-391/95, Van Uden Maritime/Deco Line”, IPRax (1999), 220-226 (with G. Vollkommer). “Anmerkung zu BVerfG, 18.1.2000, 1 BvR 321/96”, JZ (2000), 785 et seq. (with G. Vollkommer). “Die begrenzte Freizügigkeit einstweiliger Maßnahmen im Binnenmarkt II – Besprechung von EuGH, 27.4.1999, Rs. C-99/96”, IPRax (2000), 370-375. “Urteilsfreizügigkeit und ordre public-Vorbehalt bei Verstößen gegen Verfahrensgrundrechte und Marktfreiheiten – Besprechung von EuGH, 11.5.2000, Rs. C-38/98 Renault Usines/Maxicar”, IPRax (2001), 301-306. “Aufrechnung im Prozess und internationale Zuständigkeit – Besprechung von BGH, 7.11. 2001, VIII ZR 263/00”, JZ (2002), 607-610 (with Achim Müller). “Transatlantischer Rechtsverkehr heute : Von der Kooperation zum Konflikt ?, zu BVerfG, 2 BvR 1198/03”, JZ (2003), 923-926.

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“Konkurrierende Unterlassungsverfügungen im Europäischen Justizraum, zu EuGH, Rs. C-80/00, Italian Leather ./. WECO”, IPRax (2005), 23-25. “Internationale Eröffnungszuständigkeit im Insolvenzverfahren (zu EuGH, Rs. C-106/04, Staubitz-Schreiber)”, JZ (2006), 670-673 (with B. Laukemann). “Europäisches Insolvenzrecht nach Eurofood : Methodische Standortbestimmung und praktische Schlussfolgerungen”, IPRax (2007), 89-98 (with B. Laukemann and C. Seagon). “Übersetzungserfordernisse im europäischen Zivilverfahrensrecht (zu EuGH, Rs. C-14/07 (Weiss & Partner)”, IPRax (2008), 400-403. “Der Schutz des Privatsphäre im Europäischen Zivilverfahrensrecht (zu EuGH, 25.10.2011, verb. Rs. C-509/09 und 161/10, eDataAdvertising und Olivier Martinez)”, JZ (2012), 189-193.

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