International law / Diplomacy booklet (3) Mou Hitotsu no Kokusai Chusai (Untypical International Arbitration)

International arbitration are classified into the following four categories; (1) Inter-States arbitration like the South China Sea arbitration between Philippines and China, (2) Investment arbitration between a company and a State based on investment treaties, (3) international commercial arbitration between companies, and (4) other arbitration. This book sheds light on (4), namely untypical international arbitration. The merits of international arbitration is the flexibility. It can adapt to various types of disputes. Untypical international arbitration proves this flexibility.
 
The Iran-United States Claims Tribunal is the best known untypical arbitration, although very little attention has been paid to this important arbitration (See F). The arbitral awards concerning the contractual problems like force majeure, frustration and rebus sic stantibus are very suggestive when we consider international transactions with Geopolitical Risks (See G).
 
The arbitral award of the case concerning the Loan Agreement between Italy and Costa Rica is unique as it relates to the repayment of the ODA. Presumably because the language of the arbitral award is French, regrettably there is almost no writings in English on this arbitral award. The following part of the award is very important from the point of international financial law as well as general international law. “ This character of equity can only lead the Tribunal to take into consideration not only the technical provisions of the Financing Agreement, repayment and interest on arrears but also all the circumstances of the case which include the cause of the arrears, the misunderstandings and the doubts arising from the Costa Rican side concerning the effectiveness or scope of the various agreements with the Italian Party and generally the concrete situation and the behaviour of both Parties, and all their relations of friendship and cooperation. ” (See A)
 
The arbitration concerning the Railway Land between Malaysia and Singapore is the very unique first arbitration on tax matters (See B). In the cold war period, an arbitration was attempted between the US and USSR concerning the construction of the US Embassy in Moscow (See C). Students of international law must have interest in the Eurotunnel arbitration and the BIS arbitration not only because of their unique character but also because the presiding arbitrators were Prof. James Crawford and Prof. Michael Reisman, respectively (See D and E).
 

(Written by NAKATANI Kazuhiro, Professor, Graduate Schools for Law and Politics / 2022)