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DISCLOSURE STATEMENT
No potential conflict of interest was reported by the author(s).
Notes
1 European Convention for the Protection of Human Rights and Fundamental Freedoms, adopted 4 November 1950, entered into force 3 September 1953, 213 UNTS 221.
2 Article 6(1) ECHR (‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’).
3 See for Article 6 ECHR Golder v United Kingdom App no 4451/70 (ECHR, 21 February 1975, Series A no. 18), para 36; Waite and Kennedy v Germany App no 26083/94 (ECHR, 18 February 1999), para 50.
4 See Michael Wood, ‘Annex: The Settlement of International Disputes to which International Organizations are Parties’ A/71/10, para 20, mentioning Tax regime governing pensions paid to retired UNESCO officials residing in France (France – UNESCO), UNRIAA, vol. XXV, pp. 231–66; European Molecular Biology Laboratory (EMBL) v Federal Republic of Germany, ILR, vol. 105, pp. 1–74; District Municipality of La Punta (Peru) v United Nations Office for Project Services (UNOPS) (PCA Case No. 2014-38) (https://pcacases.com/web/view/109) (terminated without an Award); The Atlanto-Scandian Herring Arbitration (The Kingdom of Denmark in respect of the Faroe Islands v The European Union) (PCA Case No. 2013-30) (https://pcacases.com/web/view/25) (brought under Part XV of the United Nations Convention on the Law of the Sea and concluded without an award).
5 See eg, Article VIII Sec. 21 Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations, Lake Success, 26 June 1947, 11 UNTS 12 (‘(a) Any dispute between the United Nations and the United States concerning the interpretation or application of this agreement or of any supplemental agreement, which is not settled by negotiation or other agreed mode of settlement, shall be referred for final decision to a tribunal of three arbitrators, one to be named by the Secretary-General, one to be named by the Secretary of State of the United States, and the third to be chosen by the two, or, if they should fail to agree upon a third, then by the President of the International Court of Justice.’); Article 29 para 1 Agreement between the Government of the French Republic and the United Nations Educational, Scientific and Cultural Organization regarding the Headquarters of UNESCO and the Privileges and Immunities of the Organization on French Territory, Paris, 2 July 1954, 357 UNTS 3 (‘Any dispute between the Organization and the Government of the French Republic concerning the interpretation or application of this Agreement, or any supplementary agreement, if it is not settled by negotiation or any other appropriate method agreed to by the parties, shall be submitted for final decision to an arbitration tribunal composed of three members; one shall be appointed by the Director-General of the Organization, another by the Minister of Foreign Affairs of the Government of the French Republic and the third chosen by these two. If the two arbitrators cannot agree on the choice of the third, the appointment shall be made by the President of the International Court of Justice.’).
6 But see Article 32 Agreement on the Privileges and Immunities of the International Criminal Court, New York, 9 September 2002, 2271 UNTS 3 (‘1. All differences arising out of the interpretation or application of the present Agreement between two or more States Parties or between the Court and a State Party shall be settled by consultation, negotiation or other agreed mode of settlement. 2. If the difference is not settled in accordance with paragraph 1 of this article within three months following a written request by one of the parties to the difference, it shall, at the request of either party, be referred to an arbitral tribunal according to the procedure set forth in paragraphs 3 to 6 of this article. […].’).
7 Tax regime governing pensions paid to retired UNESCO officials residing in France (France – UNESCO), UNRIAA, vol. XXV, pp. 231–66.
8 European Molecular Biology Laboratory (EMBL) v Federal Republic of Germany, ILR, vol. 105, pp. 1–74.
9 District Municipality of La Punta (Peru) v United Nations Office for Project Services (UNOPS) (PCA Case No. 2014-38) (https://pcacases.com/web/view/109) (terminated without an Award).
10 Atlanto-Scandian Herring Arbitration (The Kingdom of Denmark in respect of the Faroe Islands v The European Union) (PCA Case No. 2013-30) (https://pcacases.com/web/view/25), Termination Order of 23 September 2014.
11 UNESCO (Constitution) Case, Special Arbitral Tribunal, Award of 19 September 1949, Annual Digest of Public International Law Cases No. 113, p. 331.
12 Article XIV(2) UNESCO Constitution (‘Any question or dispute concerning the interpretation of this Constitution shall be referred for determination to the International Court of Justice or to an arbitral tribunal, as the General Conference may determine under its Rules of Procedure.’).
13 Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 (Advisory Opinion) [1988] ICJ Rep 12.
14 UN-US Headquarters Agreement (n 5) Article VIII Sec. 21(a).
15 ibid [35] (‘[T]he United States of America, as a party to the Agreement between the United Nations and the United States of America regarding the Headquarters of 26 June 1947, is under an obligation, in accordance within section 21 of that Agreement, to enter into arbitration for the settlement of the dispute between itself and the United Nations.’).
16 United States v Palestine Liberation Organization and ors, [1988] ILDC 1838 [1988] 695 F Supp 1456 (SDNY 1988).
17 Miguel de Serpa Soares, ‘Responsibility of International Organizations’, in 7 Courses of the Summer School on Public International Law (Moscow 2022) 125 (‘[…] most disputes between the United Nations and its Member States are settled through diplomatic channels.’).
18 See the procedure envisaged in Article VIII Sec. 30 Convention on the Privileges and Immunities of the United Nations, New York, 13 February 1946, 1 UNTS 15 (‘All differences arising out of the interpretation or application of the present convention shall be referred to the International Court of Justice, unless in any case it is agreed by the parties to have recourse to another mode of settlement. If a difference arises between the United Nations on the one hand and a Member on the other hand, a request shall be made for an advisory opinion on any legal question involved in accordance with Article 96 of the Charter and Article 65 of the Statute of the Court. The opinion given by the Court shall be accepted as decisive by the parties.’). Similarly, Article IX Sec. 32 Convention on the Privileges and Immunities of the Specialized Agencies, New York, 21 November 1947, 33 UNTS 261.
19 Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations (Advisory Opinion) [1989] ICJ Rep 177.
20 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion) [1999] ICJ Rep 62.
21 Permanent Court of Arbitration’s Optional Rules for Arbitration Involving International Organizations and States (1996).
22 PCA Arbitration Rules (2012).
23 International Management Group v European Union, represented by the European Commission (PCA Case No. 2017-03) (https://pca-cpa.org/en/cases/157/) (proceedings initiated in January 2017).
24 International Management Group v European Union, represented by the European Commission (PCA Case No. 2017-04) (https://pca-cpa.org/en/cases/158/) (proceedings initiated in January 2017).
25 Relations between States and international organisations (second part of the topic) (agenda item 9) Document A/CN.4/L.383 and Add. 1–3. Practice of the United Nations, the specialised agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: supplementary study prepared by the Secretariat, Yearbook of the International Law Commission 1985 Volume II, Part One, Addendum One 156 (the UN, replying in a questionnaire of the IDI that ‘[t]he contracts in question generally contain provisions designating arbitration as the manner in which any disputes are to be resolved.’).
26 Report of the Secretary-General, ‘Procedures in place for implementation of article VIII, section 29, of the Convention on the Privileges and Immunities of the United Nations, adopted by the General Assembly on 13 February 1946’ (1995) UN Doc A/C.5/49/65.
27 Hazel Fox and Philippa Webb, The Law of State Immunity (3rd edn, OUP, 2015) 403–7; Alexander Orakhelashvili, ‘Jurisdictional Immunity of States and General International Law – Explaining the Jus Gestionis v. Jus Imperii Divide’ in Tom Ruys, Nicolas Angelet and Luca Ferro (eds), The Cambridge Handbook of Immunities and International Law (CUP 2019) 105–6; Xiadong Yang, State Immunity in International Law (CUP 2012) 460.
28 See August Reinisch, ‘Privileges and Immunities’ in Jan Klabbers and Åsa Wallendahl (eds), Research Handbook on the Law of International Organizations (Edward Elgar 2011) 132–55; Chanaka Wickremasinghe, ‘International Organizations or Institutions, Immunities before National Courts’ in Rüdiger Wolfrum (ed), The Max Planck Encyclopedia of Public International Law Vol. vi (OUP 2012) 10–18.
29 Panayotis Glavinis, Les Litiges Relatifs aux Contrats Passés entre Organisations Internationales et Personnes Privies (Travaux et recherches Panthéon-Assas, Paris II 1990); Stephanie Bellier, Le Recours à L’arbitrage par les Organisations Internationals (Editions L’Harmattan 2011); Stian Øby Johansen, The Human Rights Accountability Mechanisms of International Organizations (CUP 2020); Rishi Gulati, Access to Justice and International Organisations (CUP 2022).
30 See eg, Office de Secours et de travaux de Nations Unies (UNRWA) v The General Trading and Transport Company (1958) International Chamber of Commerce Award (Award rendered by Arbitrator H Batiffol); partly reprinted in: Yearbook of the International Law Commission 1967 Volume II 208; Balakhany (Chad) Limited v Food and Agriculture Organization of the United Nations (1972) International Chamber of Commerce Award of the Arbitrator, 1972 United Nations Juridical Yearbook 206; A (organisation internationale) v B (société) (1972) International Chamber of Commerce Case no 2091, Award (R. Lehmann, Sole Arbitrator), Revue de l’arbitrage (1975), 252–67; Westland Helicopters Ltd. and Arab Organization for Industrialization, United Arab Emirates, Kingdom of Saudi Arabia, State of Qatar, Arab Republic of Egypt and Arab British Helicopter Company, International Chamber of Commerce Case no 3879/AS, Court of Arbitration, Interim Award Regarding Jurisdiction of 5 March 1984, 23 ILM (1984) 1071–89, 62 JDI (1985), 232–46; 8 June 1982, 5 March 1984, 25 July 1985; 80 ILR (1989), 595–622; Food and Agriculture Organization of the United Nations v BEVAC Company (1986) International Chamber of Commerce Case no 5003/JJA Arbitral 1986 United Nations Juridical Yearbook 347; EUTELSAT (The European Telecommunications Satellite Organization) v Alcatel Space, ICC Arbitral Award No. 10216/AC/DB, Unpublished Arbitral Award, 26 February 2001, discussed in: Alexis Mourre, ‘Arbitration in Space Courts’ (2005) 21(1) Arbitration International 37, 41–45.
31 Equipe ‘90 v The Food and Agricultural Organization of the United Nations, Ad hoc arbitration under UNCITRAL Rules, Award 4 December 2001, summarised in CCLM 73/2 – FAO Committee on Constitutional and Legal Matters, Seventy-third Session, Rome, 3–4 June 2002 (http://www.fao.org/3/y6612e/y6612e.htm); Granuco S.A.L. v The Food and Agricultural Organization of the United Nations (PCA Case No. AA286) Award of 30 April 2009; summarised in detail in FAO, COMMITTEE ON CONSTITUTIONAL AND LEGAL MATTERS, Eighty-eighth Session Rome, 23–25 September 2009, CCLM 88/6, http://www.fao.org/tempref/docrep/fao/meeting/017/k5709e.pdf.
32 See eg, Dr. Horst Reineccius (Germany), First Eagle SoGen Funds, Inc. (USA) and others v Bank for International Settlements (Switzerland) (PCA Case No. 2000-03) Partial Award of 22 November 2002 and Final Award of 19 September 2003; Polis Fondi Immobiliari Di Banche Popolare SGR.p.A. v International Fund for Agricultural Development (IFAD) (PCA Case No. 45863) Award of 17 December 2010.
33 See CF Amerasinghe, The Law of the International Civil Service (OUP 1994); Anna Riddell, ‘Administrative Boards, Commissions and Tribunals in International Organizations’ in Anne Peters (ed), The Max Planck Encyclopedia of Public International Law (Online Version, OUP 2021); Elias Olufemi and Melissa Thomas, ‘Administrative Tribunals of International Organizations’ in Chiara Giorgetti (ed), The Rules, Practice, and Jurisprudence of International Courts and Tribunals (Martinus Nijhoff 2012) 159–88; George Politakis, ‘Administrative Tribunal: International Labour Organization (ILO)’ in Anne Peters (ed), The Max Planck Encyclopedia of Public International Law (Online Version, OUP 2021).
34 D v Energy Community (PCA Case no 2016-03) (https://pca-cpa.org/en/cases/137/); Mr. Mohamed Ismail Reygal (Somalia) v The United Nations High Commissioner for Refugees (UNHCR) (PCA Case no 2016-28) (https://pca-cpa.org/en/cases/138/) Award of 27 March 2017; A v UN Organisation (PCA Case no 2019-04) (https://pca-cpa.org/en/cases/201/) Final Award issued on 5 December 2019.
35 Starways Limited v United Nations, 24 September 1969 (Bachrach, Sole Arbitrator), 44 ILR (1972), 433–37, case note by R H Harpignies, ‘Settlement of Disputes of a Private Law Character to which the United Nations is a Party—a Case in Point—The Arbitral Award of 24.9.1969, In Re Starways Ltd. v the United Nations’ (1971) 7 Revue Belge de Droit International 451–68.
36 United States Secretary-General, ‘Exchange of Letters Constituting an Agreement between the United Nations and Belgium Relating to the Settlement of Claims Filed Against the United Nations in the Congo by Belgian Nationals’ (20 February 1965) (1965) UNJYB 39, 535 UNTS 191. The same approach was also adopted in regard to other nationals. See 564 UNTS 193 (Switzerland); 565 UNTS 3 (Greece); 585 UNTS 147 (Luxembourg); 588 UNTS 197 (Italy); 535 UNTS 197 (Belgium).
37 Article 14(1) International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171 (1976) (‘In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.’); Human Rights Committee, ‘General Comment No. 13: equality before the courts and the right to a fair and public hearing by an independent court established by law (Art. 14)’ (13 April 1984) para 3 (‘[…] equality before the courts, including equal access to courts.’).
38 See above (n 2).
39 United Nations General Assembly, ‘Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels,’ (30 November 2012) UN Doc A/RES/67/1 para 12.
40 ibid para 14 (‘We emphasize the right of equal access to justice for all, including members of vulnerable groups, and the importance of awareness-raising concerning legal rights, and in this regard we commit to taking all necessary steps to provide fair, transparent, effective, non-discriminatory and accountable services that promote access to justice for all, including legal aid.’).
41 Effect of Awards of Compensation Made by the United Nations Administrative Tribunal (Advisory Opinion) [1954] ICJ Rep 47, 57.
42 See below (n 50).
43 See below (n 47).
44 United Nations Procurement Division ‘General Conditions of Contract: Contracts for the Provision of Goods’, para 16.2 <https://www.un.org/Depts/ptd/about-us/conditions-contract> (accessed 29 March 2023); see also Stéphanie Bellier, ‘À Propos de la Clause Arbitrale dans le Règlement des Différends de L’organisation Internationale’ (2009) 55 Annuaire Francais de Droit Internationale 445–68; August Reinisch, ‘Contracts between International Organizations and Private Law Persons’ in Anne Peters (ed), The Max Planck Encyclopedia of Public International Law (Online Version, Oxford University Press 2021) para 15; Manuel Indlekofer, International Arbitration and the Permanent Court of Arbitration (Kluwer Law International, 2013) 166–70.
45 Miguel de Serpa Soares, ‘Responsibility of International Organizations’, in 7 Courses of the Summer School on Public International Law (Moscow 2022) 140. See also the Haiti Cholera litigation in the US where the UN vigorously defended its immunity from jurisdiction before US courts and declined to agree on arbitration or other third party adjudication. Georges v United Nations, 834 F 3d 88 (2nd Cir. 2016); Report by the Secretary-General, ‘A new approach to Cholera in Haiti’ (25 November 2016) UN Doc A/71/620: this new approach to tackling Cholera consists of two tracks, namely eliminating Cholera from Haiti and providing material assistance and support to those communities most impacted by the outbreak. UN Secretary-General Ban Ki-moon also apologised to the Haitian people see, UN Press Release, ‘Secretary-General Apologizes for United Nations Role in Haiti Cholera Epidemic, Urges International Funding of New Response to Disease’ (1 December 2016) UN Doc SG/SM/18323-GA/11862. However, the Haiti Cholera Response Multi-Partner Trust Fund (see https://mptf.undp.org/fund/clh00) does not provide for individual compensation.
46 See eg, Article VIII Section 29 Convention, on the Privileges and Immunities of the United Nations, New York, 13 February 1946, 1 UNTS 15 (‘The United Nations shall make provisions for appropriate modes of settlement of: (a) Disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party; […].’); Article IX Section 31 Convention on the Privileges and Immunities of the Specialized Agencies, New York, 21 November 1947, 33 UNTS 261.
47 In investment law, clauses in treaties such as bilateral investment agreements, whereby Contracting Parties agree to arbitrate future disputes with investors from other Contracting Parties, are routinely considered to be advance consent to arbitration that can be accepted by private investors through instituting arbitration. See Stephan W Schill, Loretta Malintoppi, August Reinisch, Christoph H Schreuer and Anthony Sinclair (eds), Schreuer’s Commentary on the ICSID Convention (CUP 2021) 362. This has been aptly described as ‘arbitration without privity’. See Jan Paulsson, ‘Arbitration without Privity’ (1995) 10 ICSID Review – FILJ 232. Of course, the wording of such treaty clauses is usually more explicit in giving advance consent. However, the situation would appear to be comparable.
48 Waite and Kennedy v Germany App no 26083/94 (ECHR, 18 February 1999).
49 ibid para 68.
50 Stichting Mothers of Srebrenica et al. v The Netherlands App no 65542/12 (ECHR, 11 June 2013 Decision on Admissibility) para 164 (denying that ‘[…] in the absence of an alternative remedy the recognition of immunity is ipso facto constitutive of a violation of the right of access to a court.’); see also the Dutch supreme court decision in Stichting Mothers of Srebrenica and ors v Netherlands and United Nations, Final appeal judgment, LJN: BW1999, ILDC 1760 (NL 2012), 13th April 2012, Netherlands; Supreme Court [HR].
51 Alberto Drago v International Plant Genetic Resources Institute (IPGRI), Court of Cassation, all civil sections, 19 February 2007, No. 3718, ILDC 827 (IT 2007); Banque africaine de développement v M.A. Degboe, Cour de Cassation, Chambre sociale, 25 January 2005, 04-41012, 132 Journal du droit international (2005), 1142. See also Paola Pistelli v European University Institute, Italian Court of Cassation, all civil sections, 28 October 2005, no. 20995, Guida al diritto 40 (3/2006), ILDC 297 (IT 2005), finding that the right of access to court was not violated by an organization’s immunity because there was an alternative judicial remedy in the form of an internal staff disputes commission; Energies nouvelles et environnement v Agence spatiale européenne, Civ. Bruxelles (4e ch.), 1 decembre 2005, Journal des tribunaux (2006), 171, where ESA’s immunity from suit was upheld because the claimant had ‘reasonable’ alternative means available in the specific case.
52 Siedler v Western European Union, Brussels Labour Court of Appeal (4th chamber), 17 September 2003, Journal des Tribunaux (2004), 617, ILDC 53 (BE 2003), at paras 62 et seq. (‘[…] the limitation on the access to the normal courts by virtue of the jurisdictional immunity of the [Western European Union] [was] incompatible with Article 6(1) ECHR.’); affirmed in Union de l’Europe occidentale v Siedler (S.M.), Case No. S.04.0129.F, 21 December 2009, Cour de cassation (3ème Chambre) 20.
53 OPEC Immunity case, Austrian Constitutional Court [VfGH] SV 1/2021-23, 29 September 2022.
54 Georges v United Nations, 834 F 3d 88 (2nd Cir. 2016) 94-95 (finding that the availability of appropriate modes of settlement of disputes of a private law character is not a condition precedent to jurisdictional immunity). See also Stichting Mothers of Srebrenica and ors v Netherlands and United Nations, Final appeal judgment, LJN: BW1999, ILDC 1760 (NL 2012), 13th April 2012, Netherlands; Supreme Court [HR], holding that the UN’s immunity was not dependent upon the existence of effective alternative means of securing redress.
55 Consortium X. v Swiss Federal Government (Conseil federal), Swiss Federal Supreme Court, 1st Civil Law Chamber, 2 July 2004, partly published as BGE 130 I 312, International Law in Domestic Courts (ILDC) 344 (CH 2004).
56 Art. 24(a) Headquarters Agreement between CERN and Switzerland, Agreement between the Swiss Federal Council and the European Nuclear Organization in Switzerland of 11 June 1955, 249 UNTS 405.
57 Gary Born, International Commercial Arbitration (Wolters Kluwer 2014) 86; Marianne Stegner, ‘Costs in Arbitration’ (2012) 2 YB on Int'l Arb 85
58 Under the ICC rules, the costs of the arbitration are calculated according to the amount in dispute see, Appendix III, Article 3 of the 2021 Arbitration Rules. The 2020 LCIA rules in Annex II prescribe a fixed registration fee and the expenses of the arbitral tribunal are calculated according to hourly rates. For the allocation of costs generally see, John Walton and David Williams, ‘Costs and Access to International Arbitration’ (2014) 80 Arbitration: The International Journal of Arbitration, Mediation and Dispute Management 432.
59 Michael O´Reilly, ‘Provisions on Costs and Appeals: An Assessment from an International Perspective’ (2010) 76 Arbitration: The International Journal of Arbitration, Mediation and Dispute Management 705, 706. The ICC Commission in its 2015 report gives an average of 83% of total costs incurred by Party Costs, 15% by Arbitrator fees and 2% of ICC administrative expenses, see Commission on Arbitration and ADR, Decisions on costs in International Arbitration (ICC Dispute Resolution Bulletin Issue 2, 2015) 3.
60 Susan Franck, Arbitration Costs: Myths and Realities in Investment Treaty Arbitration (OUP 2019) 184–87; David Gaukrodger and Kathryn Gordon, ‘Investor-State Dispute Settlement: A Scoping Paper for the Investment Policy Community’ (2012) OECD Working Papers on International Investment 3/2012, 19 <https://www.oecd-ilibrary.org/finance-and-investment/investor-state-dispute-settlement_5k46b1r85j6f-en> accessed 3 April 2023.
61 David Rivkin and Samantha Rowe, ‘The Role of the Tribunal in Controlling Arbitral Costs’ (2015) 81 Arbitration: The International Journal of Arbitration, Mediation and Dispute Management 115, 117; August Reinisch, ‘UNCITRAL Reform Process on ISDS: Comment from Arbitrator’s Perspective’ in Stephan Hobe and Julian Scheu (eds), Evolution, Evaluation and Future Developments in International Investment Law: Proceedings of the 10 Year Anniversary Conference of the International Investment Law Centre Cologne (Nomos 2021) 177; See also United Nations Commission on International Trade Law, ‘Draft Report of Working Group III (Investor-State Dispute Settlement Reform) on the Work of its Thirty-sixth Session’, A/CN.9/964 (6 November 2018).
62 See Gulati, Access to Justice and International Organisations, supra (n 31) 121 et seq.
63 Jan Wouters and Jed Odermatt, ‘Assessing the Legality of Decisions’ in Jacob Cogan, Ian Hurd and Ian Johnstone (eds), The Oxford Handbook on International Organizations (OUP 2016) 1025; August Reinisch, ‘Securing the Accountability of International Organizations’ (2001) 7 Global Governance 131; Nico Schrijver, ‘Beyond Srebrenica and Haiti: Exploring Alternative Remedies against the United Nations’ in Niels Blokker and Nico Schrijver (eds), Immunity of International Organizations (Brill 2015) 338.
64 Joachim Delaney and Daniel Barstow Magraw Jr, ‘Procedural Transparency’ in Peter T Muchlinski, Federico Ortino and Christoph Schreuer (eds), The Oxford Handbook of International Investment Law (OUP 2008) 721,761; Dominik Horodyski, ‘Democratic Deficit of Investment Arbitration in the View of Rules on Transparency and Mauritius Convention on Transparency’ (2016) 13 US-China Law Review 160, 168–69; Alessandra Asteriti and Christian J Tams, ‘Transparency and Representation of the Public Interest in Investment Treaty Arbitration’ in Stephan W Schill (ed), International Investment Law and Comparative Public Law (OUP 2010) 787, 791–92.
65 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 330 UNTS 38.
67 See Hazel Fox and Philippa Webb, The Law of State Immunity (3rd edn, OUP, 2015) 518–21; August Reinisch, ‘European Court Practice Concerning State Immunity from Enforcement Measures’ (2006) 17 EJIL 803, 821. See also Article 19 United Nations Convention on Jurisdictional Immunities of States and Their Property, adopted by the UN General Assembly on December 2, 2004, UN, GAOR, 59th Session, Supp. No. 22 (A/59/22), 44 ILM 803 (2005), exempting from immunity ‘property […] specifically in use or intended for use by the State for other than government non-commercial purposes.’
68 See eg, Article II Sec. 2 General Convention, supra note 20 (‘The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution.’)
69 August Reinisch, ‘Immunity of Property, Funds and Assets (Article II Section 2 General Convention)’ in August Reinisch (ed), The Conventions on the Privileges and Immunities of the United Nations and its Specialized Agencies. A Commentary (OUP 2016) 63–98, at 86.
70 In the case of the UN, the provision in the general Convention that ‘[i]t is, however, understood that no waiver of immunity shall extend to any measure of execution’ has given rise to a debate about the waivability of the organisation’s immunity from enforcement measures. See August Reinisch, ‘Immunity of Property, Funds and Assets (Article II Section 2 General Convention)’ in August Reinisch (ed), The Conventions on the Privileges and Immunities of the United Nations and its Specialized Agencies. A Commentary (OUP 2016) 63–98, at 97.
71 Gian Luca Burci, ‘Immunity of Property, Funds and Assets (Article III Section 4 Specialized Agencies Convention)’ in August Reinisch (ed), The Conventions on the Privileges and Immunities of the United Nations and its Specialized Agencies. A Commentary (OUP 2016) 99–122, at 120.