Topic: International Dispute Settlement

Order Description please ANSWER THE QUESTIONS BY Explaining and comparing and giving recommendations Identify legal issues relevant to IDS and provide legal advice. •Length: 4000 words (excluding footnotes, • Assignment must be typed, double spaced and referenced and should conform to the Australian Guide to Legal Citation Materials Books, Articles, reports, international materials International Dispute Settlement Research Essay Lidya is a large state bordered to the east, west and south by other states, with its northern border fronting on to the Mezzeranean Sea. The coastline is very rugged with only two major ports allowing for shipping to dock in to Lidya, but is dotted with smooth sandy beaches that are popular with locals as well as with tourists from neighbouring countries. Since 2005, Lidya has seen a dramatic increase in Egitrean and Vyrian nationals fleeing from persecution and brutal living conditions in their home countries. The Egitreans and Vyrians come to Lidya with the aim of crossing the Mezzeranean Sea to reach the more prosperous states of Greete and Ifaly. Greete and Ifaly have been overwhelmed by the number of boat migrants fleeing from Lidya and have been sending out patrol boats to intercept the Egitreans and Vyrians and return them to Lidya. Lidya has been able to absorb many of the Egitrean and Vyrian nationals into its economy, particularly because of its vast oil industry. Increasing numbers of Egitrean and Vyrian nationals have been settling in to the Lidyan way of life and profiting from the jobs in the oil industry to support themselves and their families. Porta Inc, a Greete-registered company with a majority of Ifalian shareholders, has approached the Lidyan government with a proposal to provide mass volumes of prefabricated cottages to house the Egitrean and Vyrian nationals who work in the oil fields. The Lidyan government enters into a contract with Porta Inc to provide 5,000 cottages per annum for the next 10 years. Porta Inc reports back to its majority shareholders from Ifaly that the contract with Lidya is worth in excess of USD$100 million. Porta Inc swings into action upon conclusion of the contract and within less than a year ‘Porta Villages’ start springing up across Lidya, but particularly near the beaches to facilitate workers access to offshore oil exploitation activity. The Lidyan coastal residents are horrified by the ‘Porta-ization’ of their communities and have noted an increase in crime and pollution since the arrival of the Egitreans and Vyrians in their hundreds of cottages in the Porta Villages. This issue becomes critical at the next Lidyan national election and results in the sound defeat of President Gadassi, who oversaw the conclusion of the contract with Porta Inc. President Abbotta is ushered in with policies dedicated to stemming the flow of migration and returning Lidya to a land of traditional Lidyan values. After she is sworn in, President Abbotta orders all Egitreans and Vyrians to leave Lidya immediately. Her government arranges for a massive fleet of orange lifecraft to transport them across the Mezzeranean Sea to Ifaly and Greete. Lidyan troops are sent to the Porta Villages and they forcibly compel all cottage residents to proceed to the coast to board one of the orange lifecrafts. Several hundred civilian cottage residents who refuse to leave were killed by Lidyan troops, on the personal orders of President Abotta. Video footage of President Abotta giving the order was played on Lidyan state television that night. To prevent the return of the remaining cottage residents, President Abotta ordered Lidyan troops to bulldoze all of the cottages, and advised Porta Inc that it could come and retrieve whatever rubble they liked for recycling purposes. Media outlets report that at least 8,000 Egitreans and Vyrians are forced on to the vessels, although only 3,000 ultimately arrive in Ifaly and Greete with the others presumably perishing at sea. At least 4,000 Porta cottages are destroyed by the Lidyan troops acting under President Abbotta’s orders. The events are described in the news as one of the greatest human tragedies of the decade; President Abbotta is described as Lidya’s answer to Idi Amin; and Ifaly refers the situation in Lidya to the International Criminal Court. In response, Lidya announces that it has conducted a preliminary investigation into President Abbotta’s actions and no evidence had been found suggesting any wrongdoing on her part. On the basis of a Greete-Lidya bilateral investment treaty, Porta Inc decides to institute proceedings against Lidya for the destruction of its investment. Porta Inc brings a breach of contract case in the Lidyan courts, but the case stalls following a series of lengthy and unexplained delays by the Lidyan courts and the lawyers representing the Lidyan state. Porta Inc then turns to ICSID arbitration and brings a claim for unlawful expropriation in relation to its investment, and failure to provide fair and equitable treatment in respect of its investment and the undue delays in the Lidyan court proceedings. Further to that procedure, Porta Inc appoints Seth Blapper as its arbitrator. Professor Platino and Judge Warbler are appointed as the President and Lidya’s arbitrator respectively. After the proceedings commence, Lidya files an admissibility challenge on the basis of the Lidya / Greete bilateral investment treaty. However, Blapper quietly advises Porta Inc that if they could guarantee each of the arbitrators a deluxe Porta cottage on the Mezzeranean coast in Greete then the tribunal could well support Porta’s claims, both in relation to admissibility and on the merits. Porta Inc provides assurances to this effect and the tribunal hands down an award in Porta Inc’s favour, finding that the case was admissible and awarding compensation of $USD90 million (including interest and costs). Given the majority Ifalian shareholding as well as Lidya’s offshore gold stores in Ifalian banks, Greete seeks to enforce the judgment in Ifaly on behalf of Porta Inc. Ifaly has been vocal in its condemnation of President Abbotta’s actions. At all relevant times, Lidya, Greete and Ifaly were members of the United Nations, the Council of Europe, the International Maritime Organisation, and the World Trade Organisation. Ifaly has accepted the compulsory jurisdiction of the ICJ with a declaration essentially identical to that of Cyprus. Lidya has accepted the compulsory jurisdiction of the ICJ with a declaration essentially identical to Australia’s acceptance. Greete has not accepted the compulsory jurisdiction of the ICJ. All three states are parties to the following treaties: UNCLOS, the ICSID Convention, the Safety of Life at Sea Treaty, the Vienna Convention on the Law of Treaties, the Geneva Conventions and their Additional Protocols, the New York Convention on the Recognition and Enforcement of Arbitral Awards, the International Criminal Court Statute (since 2002) and the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation. There are no other treaties, declarations or agreements to which all states are party that may be relevant to this scenario. In addition, there is a bilateral investment treaty as between Greete and Lidya, which is modelled on the Egypt / United States bilateral investment treaty, as well as one between Ifaly and Lidya, which is modelled on the Czech Republic / Netherlands bilateral investment treaty. As a lawyer for the Ifalian government, you are asked to advise on the following: 1. Compare two viable dispute settlement procedures before a court or tribunal, substantiating which you would recommend to bring Lidya to account for their human rights violations in relation to the deportation of the Egitreans and Vyrians from Lidya? In providing your recommendation, advise Ifaly on: a. the available bases of jurisdiction; b. whether the case against Lidya would be admissible; c. what remedies your recommended court or tribunal would most likely offer, particularly to the victims; and d. what issues, if any, are relevant to enforcement of and compliance with a decision by your recommended court or tribunal. [Note: answer to question 1 is worth 50%]. 2. In relation to the ICSID arbitration, advise Ifaly on: a. the likelihood of the ICSID decision being enforced within Ifaly as a matter of international law (one of your colleagues is considering the Ifalian law aspects); b. whether Lidya’s admissibility challenge under the Greete-Lidya BIT ought to have succeeded; and c. whether the Ifalian shareholders of Porta Inc. could bring a separate ICSID claim against Lidya under the Ifaly-Lidya BIT; in particular, whether such a claim would be admissible and within jurisdiction. [Note: answer to question 2 is worth 30% ]. 3. In relation to the International Criminal Court, advise Ifaly on: a. Does the ICC have jurisdiction to try President Abbotta? b. If so, is the case against her admissible in the ICC? c. What remedies, if any, might be available to victims who participate in ICC proceedings against President Abbotta? [Note: answer to question 3 is worth 20%].