NEWSLETTER WINTER 2008 Register

SIR ARTHUR WATTS RESEARCH FELLOWSHIP

The Institute’s appeal for the Sir Arthur Watts Research Fellowship in Public International Law aims to honour the memory of the late Sir Arthur Watts, widely regarded as one of the foremost public international lawyers of his generation, to secure the place of public international law as a core element of the Institute’s work, and to reflect the special focus Sir Arthur had on the practical operation of public international law founded on a deep knowledge of the law.

Areas featuring in the Institute’s current programme of research and events include:

Damages in International Law
Evidence before International Courts and Tribunals
Comparative International Law
Human Rights in Iran

One of the principal duties of the Fellow will be to develop and expand this programme in the light of contemporary needs.

The initial fundraising target for the Sir Arthur Watts Fellowship is £500,000. This will cover the running costs for the Fellowship for five years. A number of substantial gifts have been received with a total of over £100,000 already donated or pledged.

To make a donation or to offer support, please contact Roz Bristowe via email or telephone on 020 7664 4871 or
Sir Frank Berman at Essex Court Chambers (FBerman@essexcourt.net; 020 7813 8000).

Research Profile: Armed Conflicts, Peacekeeping, Transitional Justice:
Law as Solution (ATLAS)

The Institute has been engaged in a project concerned with the humanitarian and human rights law policy of the European Union. Entitled ‘Armed Conflicts, Peacekeeping, Transitional Justice: Law as Solution’ (ATLAS), the project spans four years and involves six other partner organizations across the EU, including the project co-ordinator, the Université de Paris 1 Panthéon-Sorbonne. For the past year, the Research Fellows Faria Medjouba and Justine Stefanelli are responsible for the work on ATLAS, under the supervision of Sarah Williams.

The overall objective of the project is to contribute to the reinforcement of the rule of law during and after armed conflicts, and to review the current activity of the EU in promoting human rights and international humanitarian law both during and after armed conflicts, mainly through its peace-keeping operations, and to offer recommendations for improvements and best practice in these activities.

The project consists of several work packages, with each institution assigned to specific components within each package. Currently, the Institute is undertaking an overview of the relevant EU legislation and action in order to determine the extent to which EU external policy (specifically Common and Foreign Security Policy) has a human rights and international humanitarian law component with a view toward offering recommendations, codes of conduct for civil and military peacekeeping personnel, and best practice guidelines for policy-makers in the EU and its Member States. As the project involves a number of partner organizations, it has involved regular Steering Committee meetings in various locations including Bucharest and Paris, and soon to include Valencia. The purpose of these meetings is to discuss the progression of the partners’ research and to plan for future work packages and project conferences. In addition to the various reports that the Institute is responsible for, several publications will come out of the ATLAS project. The first of these is a French-language article entitled ‘La prise en considération du droit international humanitaire par l’Union Européenne—une introduction’ to be published by the University of Bucharest.

The project hopes to establish a policy for the EU that will ensure respect for international humanitarian law and human rights through a dissemination of our recommendations to the European institutions, relevant NGOs, representatives of local governments, peacekeeping decision makers, and jurists.

A dedicated website to the ATLAS project has been created and is regularly updated at http://projetatlas.univ-paris1.fr/.

Investment Treaty Forum addresses recent economic
developments

In light of the unravelling global economic crisis, on 18 February 2009 the Institute’s Investment Treaty Forum held a roundtable discussion of what the crisis might mean for the arbitration community.
The speakers addressed the questions of whether the crisis is likely to generate an increased flow of claims, whether the measures currently taken by governments appear to breach investment treaty obligations and whether any such breaches could potentially be justified under the necessity defence. A separate presentation addressed the difficulties in damages valuation posed by the global economic downturn. The seminar was kindly hosted by Lovells.

On the eve of the G-20 meeting in London, the Investment Treaty Forum members had the honour of dining with Dan Price who in the past few years served as Assistant to the US President George W Bush and Deputy National Security Advisor for International Economic Affairs. Benefiting from the wealth of experience in the government and private practice alike, Mr Price shared his vision of the main challenges that governments face in dealing with the economic crisis and specifically discussed the dangers of protectionism emphasising the need to avoid even those trade-restrictive measures that do not violate international law. The Institutes warmly thanks Audley Sheppard and Nicholas Fletcher at Clifford Chance for making this dinner happen.

Sergey Ripinsky starts as Scholar-in-Residence at Wilmer Hale

Sergey Ripinsky joined the London arbitration practice of Wilmer Cutler Pickering Hale and Dorr LLP as
Scholar-in-Residence for a six month period commencing 1 April 2009. The firm’s Scholar-in-Residence programme is designed to bring academics from all jurisdictions to the firm to collaborate with the international arbitration team on both professional matters and academic projects and to contribute generally to the intellectual life of the office. We are grateful to Wilmer Hale for providing Sergey with this opportunity to get the first-hand practical experience of handling complex arbitrations.

Ministry of Justice Project

The British Institute of International and Comparative Law recently completed a six month research project for the Ministry of Justice. This comparative study focused on the meaning of ‘public authority’ and ‘public function’ for the purpose of the application of the European Convention on Human Rights (ECHR) at the national level.

This question has arisen particularly frequently in cases involving the privatization of services by the State. In the latest relevant case, YL v Birmingham City Council and Others [2007] UKHL 27, the House of Lords decided that a private care home, when providing accommodation and care to an elderly resident, pursuant to arrangements made with a city government body, was not performing 'functions of a public nature' and thus should not be considered a 'public authority' obliged to comply with the ECHR. However a strong minority opinion was of the view that a wide definition should be given to 'functions of a public nature' to ensure that such services would be subjected to the ECHR. This study analysed whether an amendment to the Human Rights Act 1998 should be envisaged to provide a clear definition of the scope of protection to be applied in such issues.

To complete this study, Anna Riddell, Justine Stefanelli and I sent questionnaires to rapporteurs of a selection of twenty Member States of the Council of Europe. In addition, we visited the European Court of Human Rights in Strasbourg in order to better understand the views on the question at the European level. Over the course of two days, several eminent members of the Court, including The Hon Sir Nicholas Bratza, also a member of the Institute’s Advisory Council, kindly agreed to meet and discuss our research questions.

Competition Law Forum:
Antitrust Marathon III: Antitrust and the Rule of Law