مجله حقوقی بین المللی
پیاپی 64 (بهار و تابستان 1400)

Arbitration has in recent times been considered as the most useful mechanism for settling international investment disputes. The significant increase in referring to arbitration, according to many commentators, must be sought in arbitration’s comparative advantages in terms of predictability and the trust of its international users. Conflicting decisions are among important setbacks to these advantages, and in particular, the issue of predictability in arbitration. Through an in-depth analysis of relevant arbitral precedent, this paper seeks to suggest a typology of conflicting decisions, and to explain potential solutions available for addressing its causes. It is concluded that, first, a degree of inconsistency is an integral part of any dispute settlement system, and therefore, it may not be fully eliminated from arbitration. Second, each type of conflict requires a unique solution, and accordingly, there is no single mechanism to address all types of conflicting decisions. Finally, inconsistency might not be eliminated unless a number of revisions are made to international treaties relevant to investment arbitration.

International commercial arbitration is considered as the fulcrum and enforcing tool of international commercial transactions. The efficiency of this mechanism brings relief for business partners and foreign investors. Unfortunately, the challenges of sanctions and the concerns about the consequences of their breach have affected the active arbitral actors such as the parties to the dispute, arbitrators and arbitral institutions. Managing these situations is only conceivable by marking the details and phrases of each sanctions regime. Reaching a realistic and logical solution which would guide us to learn the impacts of sanctions on arbitration is one of the vital needs of the international system, especially the governing legal system. Considering the necessity of this issue –especially for Iran- the main question here is the approach to be used to manage these legal challenges that the arbitral actors face every day, so that the rights of everyone involved can be preserved. This research, using the descriptive-analytic method, strives to clarify the legal challenges of sanctions for international commercial arbitration through doctrine and jurisprudence.

Under article 14(1) of International Covenant on Civil and Political Rights, any person has the right to be heard in a court that “has been established by law”. Subsequently, this right has been extended to criminal courts for charges against persons, and thus it can be said that anyone has the right to be charged in a court "established by law" and be tried with observance of other requirements of fair trial. This paper describes the developments of this principle under the heading of "the lawfulness of the court" by means of a descriptive-analytical approach. It has been concluded that in addition to international human rights institutions developing its scope, international practice rather than focusing on the competence of the court's constituent body is more focused on ensuring fair trial. Furthermore, within the framework of international humanitarian law, non-governmental actors may also establish trials with these guarantees in place.

Disputes are inseparable part of complicated cycles of international long-term construction contracts which deal with huge financial and human resources. How to deal with disputes and settle them is more crucial. A new trend in applying the specialized dispute boards for settlement of the disputes has emerged in international construction contracts in recent years. In times of disputes, these boards decide that the issued decision is binding on the parties based on FIDIC Conditions. However, there is no enforcement mechanism when failure to comply with such a decision occurs, and the procedure thereof is also unclear. These kinds of decisions are mostly regarded as contractual obligations and there is not enough supporting judicial opinion to uphold them seriously. Recently, the High Court and the Court of Appeal in Singapore have enforced binding but not final Dispute Adjudication Board (DAB) decisions. In Singapore, these judicial awards make it clear how the term of reference to DAB could be interpreted. The procedure might be a useful guideline for other courts and arbitral tribunals which are dealing with the enforcement of DAB decisions in different countries as a challenging issue. This study tries to uphold the view that since the binding but not final DAB Decisions could be enforced through the interim awards by a court, a fortiori, the binding and final ones could be regarded as arbitral awards and enforced as final arbitral awards. It is also argued that recognition and enforcement of FIDIC DAB decisions could to some useful extent guarantee the cash flow and financial efficiency of construction projects. Finally, the guarantees for the failure in the enforcement of decisions are debated.

The Critical Studies Movement in law and the New Stream in international law are emerging movements that seek to criticize the status quo and to design new foundations in order to achieve the desired condition. In the present research, the most important aspects of the critique of the New Stream of international law’s mainstream have been expressed in order to familiarize the reader with the critical logic of this movement and the possibility of structural reform of international law in light of critical thinking has been assessed. Hence, the main question of the present research is whether the new stream has provided a deconstructing criticism to the roots, the structure and nature of international law that on the one hand, does not lead to radical skepticism and nihilism, and on the other hand, provides a more positive insight into the desired status of international law. By examining the main areas of the critique of the New Stream, it is concluded that although the intellectuals of this movement were incapable of providing a positive insight into international law, by creating a kind of critical epistemology and promoting the position of rational reasoning, they are quite distinct from radical skepticism and epistemic absurdity.

One of the serious concerns of human rights institutions is legal deficiencies of international investment law that could undermine human rights support. The most important way to address this problem is to benefit from the procedures of international investment arbitration. This paper tries to analyze the relation between human rights and international investment law through the analysis of awards issued by ICSID tribunal in the field of human rights, and illustrates the amount of human rights considerations in those awards and contributes to the development and promotion of human rights in international investment law. It is notable that the arbitral practice is positively engaging with human rights obligations of investors. However, it must be recognized that approaches of ICSID investment tribunal towards human rights are not yet based on a fixed procedure. It must be admitted that the development of investment law arbitration on human rights will be a gradual approach.

The dispute-settlement system of the 1982 Law of the Sea Convention is based on four judicial and arbitral procedures. The International Court of Justice, the International Tribunal for the Law of the Sea and arbitral tribunals under Annexes VII and VIII of the Convention have compulsory jurisdiction over disputes concerning its interpretation or application. Nonetheless, the scope of these compulsory procedures has been restricted by Articles 297 and 298 of the Convention. On the one hand, Article 297 sets out exceptions to the compulsory procedures. Article 298, on the other, allows States Parties to exclude specific categories of disputes from the compulsory procedures. Yet, the complex structure and ambiguous wording of these two Articles has given way to controversy and uncertainty about the scope of the compulsory dispute-settlement procedures. Furthermore, there is great uncertainty about the applicability of the compulsory procedures to territorial disputes connected to the Law of the Sea Convention. Consequently, judicial and arbitral bodies have had to explain and interpret the scope of the Convention’s compulsory dispute-settlement procedures. This paper aims to examine the scope of the Law of the Sea Convention’s compulsory dispute-settlement procedures in light of judicial and arbitral decisions.

After 27 years of diplomatic efforts by the five Caspian coastal States to determine the legal regime of this Sea, it resulted in the signing of the "Convention on the Legal Status of the Caspian Sea" in Aktau, Kazakhstan on August 12, 2018. Although this Convention has taken steps to determine the jurisdiction of coastal States by dividing the Caspian Sea into different maritime zones, including territorial waters, contemplation on the provisions of this Convention shows that there are no rules in many jurisdictional matters in the territorial waters of this Sea. Furthermore, the absence of such a treaty can cause serious problems for the Caspian coastal States, especially the Islamic Republic of Iran. Under international law of the sea, coastal States have legislative, judicial and enforcement jurisdictions on a wide range of issues in the territorial waters area. It is concluded in this study that extending these regulations by the five coastal States to the Caspian Sea is the best way to resolve future jurisdictional challenges.

A contrario reasoning has been widely used in the Permanent Court of International Justice & its successor (International Court of Justice) on various occasions. The questions ariseing are, what is the criterion for the existence and non-existence of a contrario in the statutory law and legal propositions? To what extent and how has a contrario reasoning been used in the PCIJ and ICJ jurisprudence? What is the importance of this essential argument? And finally, have they contributed to the creation of a predictable legal framework and the coherent development of international law? Analysis of the judgments and advisory opinions regarding this concept help us to understand the nature of the concept and to assess its scope in a better way. Having Followed up the judicial procedure, it is concluded that a contrario reasoning is one of the basic and flexible methods of reasoning in international law. The ICJ and its predecessor have used this form of reasoning to justify their decisions, in the process of interpreting a treaty to discover the spirit of the law, and as a supplementary means for the determination of the content of rules to be applied in certain cases. This form of legal reasoning has also been cited many times and in various contexts in all major substantive fields of international law.

Nuclear disarmament is an institution that coincided with the emergence of the first nuclear weapons. Almost all nuclear documents, including NPT, view nuclear disarmament as the ultimate destination on this path. But the application of the theory of nuclear deterrence have so far prevented this goal from being realized. In September 2017, non-nuclear-weapon states parties to the NPT, approved the Treaty on the Prohibition of Nuclear Weapons (TPNW), which was welcomed by peace advocates and humanitarian organizations but encountered with the boycott of nuclear- weapon-states and their allies. While the treaty has not yet entered into force, it has raised many questions, including how it interacts with the NPT and its step-by-step disarmament program, so that its opponents believe it undermines the international consensus and all efforts which have been made. But proponents view it as a new legal and ethical norm that could put additional pressure on nuclear-weapon-states to abandon the theory of deterrence and accept nuclear disarmament.

On July 31, 2019, United States Secretary of the Treasury declared that Iran’s Minister of Foreign Affairs has been sanctioned under the Executive Order 13876 dated June 24, 2019. Contribution in pursuing the Iranian leader’s foreign policy was the reason indicated for this action. Head of States, Head of Governments and Ministers of Foreign Affairs are among high ranking State officials who enjoy immunity under customary international law. Respect for sovereignties based on the principle of sovereign equality of States as the basis of the Head of States immunity and the effective performance of Head of Governments and Minister of Foreign Affairs’ functions are considered as raison d'être of immunities afforded to them. Immunity from civil and criminal jurisdiction and execution of foreign courts’ decisions are among those immunities. The US contests that the immunity of Iran’s Minister of Foreign Affairs has not been breached; particularly after imposing sanctions, he was allowed to enter to the United Nations Headquarters while imposing certain authorized restrictions on his movement. Hence, this targeted sanction would not violate the US obligations regarding immunity. This article tries to explore through examining the scope of the rule of State official’s immunity, the relationship between US targeted sanctions and the immunity of Iran’s Minister of Foreign Affairs.

Interception and repatriation of asylum seekers in different maritime zones has been a common practice of the coastal states in recent years. This situation is in contrast with the coastal states' obligations to assist asylum seekers and that the study of its dimensions is one of the object and purposes of this article. The research method is descriptive-analytical and relies on the provisions of the UNCLOS, SOLAS and SAR Conventions. Main research question is what is the Coastal State's international obligations in rendering assistance to asylum seekers and avoiding interception and push back of their ship in different maritime zones? Research findings show that the Coastal State is obligated to cooperate with the ship's Master and its flag State to rescue people in distress at sea, asylum seekers disembarkation and provide them a safe haven in its territory. However, the interdiction of asylum seekers from the Territorial Waters and the Contiguous Zone is justified by the provisions of the UNCLOS and from the High Seas and the Exclusive Economic Zone with bilateral agreements, which however is not an accepted practice.