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Published online by Cambridge University Press: 04 September 2017
1 Canada, Sénat, Comité permanent des relations extérieures, Débats sur le Projet de loi S-25, “Loi concernant les Conventions de Genève,” 26e lég, 2e sess (2 juin 1964) à la p 10.
2 Dossier du défendeur, Affidavit de Michael Schmitt aux para 7(b)(c), 30–81; voir aussi F Kalshoven, “The Undertaking to Respect and Ensure Respect in All Circumstances: From Tiny Seed to Ripening Fruit” (1999) 2 YB Intl Hum L 3; A Robert, “The Laws of War: Problem of Interpretation in Contemporary Conflicts” (1995–96) 6 Duke J Comp & Intl L 11 aux pp 29–30; T Zych, “The Scope of the Obligation to Respect and Ensure Respect for International Humanitarian Law” (2009) 27 Windsor YB Access Justice 251; C Focarelli, “Common Article 1 to the Geneva Conventions: A Soap Bubble?” (2010) 21 EJIL 125.
3 Ces sources, de la doctrine et un avis consultatif de la Cour internationale de Justice, n’ont pas de valeur contraignante. C Emmanuelli, Droit international public, 2e éd, Montréal, Wilson & Lafleur, 2004 aux para 363–64, 373; JM Arbour & G Parent, Droit international public, 6e éd, Québec, Les Éditions Yvon Blais, 2012 aux pp 64–66; Statut de la Cour internationale de Justice, 26 juin 1945, 33 RTNU 993, arts 38, 59.
4 Convention de Vienne sur le droit des traités, 23 mai 1969, 1155 RTNU 331, art 31(3)(b) [CVDT]; Hassan c Royaume-Uni, CEDH 260 (2014) au para 101; Bouzari v Iran (2004), 71 OR (3d) 675 (CA) aux para 77–79; Jones v Saudi Arabia, [2006] UKHL 26 au para 27.
5 Dossier du défendeur, Affidavit de Michael Schmitt aux para 7(d)(e), 48–65.
6 CVDT, supra note 4, art 31(3)(b); Hassan, supra note 4 au para 101.
7 Company General of the Orinoco Case, (1905) 10 RIAA 184 at 278.
8 Committee on International Commercial Arbitration, “Interim Report: ‘Res Judicata’ and Arbitration” in Report of the Seventy-first Conference Held in Berlin (London: International Law Association, 2004) at 829.Google Scholar
9 Ibid.
10 Ibid.
11 August Reinisch, “The Use and Limits of Res Judicata and Lis Pendens as Procedural Tools to Avoid Conflicting Dispute Settlement Outcomes” (2004) 3:1 Law & Practice of International Courts and Tribunals 37 at 43, citing to Black’s Law Dictionary, 6th ed (1990) at 1305.
12 Ibid at 50, citing In re SS Newchwang (Great Britain v United States), (1922) 16 AJIL 323 at 324.
13 Ibid at 63.
14 David AR Williams & Mark Tushingham, “The Application of the Henderson v Henderson Rule in International Arbitration” (2014) 26 Singapore Academy of Law Journal 1036 at 1036.
15 Ibid at 1036. This obligation constitutes a key legal principle that is contained in a variety of domestic legal systems. The English Court of Chancery noted in Henderson v Henderson, (1843) 3 Hare 100 at 319: “The Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The pleas of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence might have brought forward at the time.” This quote has since been cited with approval by both Canada’s Supreme Court in Maynard v Maynard, [1951] SCR 346 at 358–59, and the High Court of Australia in Port of Melbourne Authority v Anshun Pty Ltd, [1981] HCA 45, para 22. Similarly, the US Supreme Court noted in Allen v McCurry, [1980] 449 US 90 at 94: “Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” The Supreme Court of France also “widened the scope of the res judicata effect of arbitral awards by precluding plaintiffs from raising new legal issues which they could have relied upon in the initial arbitration proceedings but which they failed to raise in a timely manner.” Elie Kleiman, Supreme Court Broadens Scope of Res Judicata (Paris: Freshfields Bruckhaus Deringer, 2 October 2008) at 4. The Supreme Court of Sweden has confirmed that the preclusive effect of res judicata also “affects alternative and economically equivalent legal grounds and objections.” Kaj Hober, “Res Judicata and Lis Pendens in National Law” (2014) 366 Collected Courses of the Hague Academy of International Law 137. The principle also exists in Singapore, Hong Kong, Malaysia, and New Zealand. Williams & Tushingham, supra note 14 at 1037.
16 Rachel S Grynberg, Stephen M Grynberg, Miriam Z Grynberg and RSM Production Company v Grenada, ICSID Case no ARB/10/6, Award (10 December 2010) at paras 7.1.8, 7.21 [Grynberg]; Apotex Holdings Inc and Apotex Inc v United States of America, ICSID Case no ARB/(AF)/12/1, Award (25 August 2014) at paras 7.23–7.32; Schaffstein, Silja, The Doctrine of Res Judicata Before International Arbitral Tribunals (Oxford: Oxford University Press, 2016) at para 2.102;Google Scholar Vaughan Lowe, “Res Judicata and the Rule of Law in International Arbitration” (1996) 8 Afr J Intl & Comp L 38 at 41–42.
17 Schaffstein, supra note 16 at para 2.101.
18 Grynberg, supra note 16 at para 7.1.3.
19 Claimant’s Reply Memorial at para 100, citing Grynberg, supra note 16 at para 7.1.1.
20 Schaffstein, supra note 16 at para 2.101.
21 Eg, the Award in Ickale Insaat Limited Sirketi v Turkmenistan, ICSID Case no ARB/10/24, Award (8 March 2016) at para 242 states: “A claim that has not been first submitted to local courts may be said to be inadmissible before an international tribunal on grounds that it is not yet ripe for such submission as all the required procedural steps have not yet been taken.” Further, the award in Mr Franck Charles Arif v Republic of Moldova, ICSID Case no ARB/11/23, Award (8 April 2013) at para 348 states: “[T]he Tribunal finds that Mr. Arif’s claims for complete expropriation and breach of specific undertakings regarding the border duty free stores are jurisdictionally ripe for arbitration.” See also Glamis Gold, Ltd v United States of America (UNCITRAL), Final Award (8 June 2009) at para 328; Achmea BV v Slovak Republic [II] (UNCITRAL), Award on Jurisdiction and Admissibility (20 May 2014) at paras 235–36, where tribunals used the term ripeness in relation to the question of jurisdiction; Hochtief AG v Argentine Republic, ICSID Case no ARB/07/31, Decision on Liability (29 December 2014) at para 206, where a tribunal used the term ripeness in relation [to] the question of admissibility.
22 As stated by the Vivendi annulment tribunal: “It is settled … that an ICSID tribunal commits an excess of powers not only if it exercises a jurisdiction which it does not have under the relevant agreement or treaty and the ICSID Convention, read together, but also if it fails to exercise a jurisdiction which it possesses under those instruments. … [T]he failure by a tribunal to exercise a jurisdiction given it by the ICSID Convention and a BIT, in circumstances where the outcome of the inquiry is affected as a result, amounts in the Committee’s view to a manifest excess of powers.” See Compañia de Aguas del Aconquija SA and Vivendi Universal SA v Argentine Republic, ICSID Case no ARB/97/3, Decision on Annulment (3 July 2002) at para 86.
23 International Law Commission (ILC), Guide to Practice on Reservations to Treaties, UN Doc A/66/10/Add.1 (2011). The UN General Assembly took note of the Guide to Practice in Resolution 68/111 (16 December 2013).
24 In a situation where an interpretative declaration purports, in fact, to exclude or to modify the legal effect of certain provisions of the treaty or of the treaty as a whole with respect to certain specific aspects in their application to its author, it is not an interpretative declaration but a reservation, which should be treated as such and must therefore meet the conditions for the permissibility and formal validity of reservations.
25 ILC, supra note 23 at 328.
26 European Communities – Customs Classification of Certain Computer Equipment, WTO Doc WT/DS62-67-68/AB/R (Decision, 5 June 1998) at para 84.
27 In its advisory opinion on the International Status of South-West Africa, [1950] ICJ Rep 128 at 135–36, the International Court of Justice noted, on the subject of the declarations of the Union of South Africa regarding its international obligations under the Mandate: “These declarations constitute recognition by the Union Government of the continuance of its obligations under the Mandate and not a mere indication of the future conduct of that Government. Interpretations placed upon legal instruments by the parties to them, though not conclusive as to their meaning, have considerable probative value when they contain recognition by a party of its own obligations under an instrument. In this case the declarations of the Union of South Africa support the conclusions already reached by the Court.”
28 DM McRae, “The Legal Effect of Interpretative Declarations” (1978) BYBIL 156 at 160: “The State has simply indicated its view of the interpretation of the treaty, which may or may not be the one that will be accepted in any arbitral or judicial proceedings. In offering this interpretation the State has not ruled out subsequent interpretative proceedings nor has it ruled out the possibility that its interpretation will be rejected. Provided, therefore, that the State making the reservation still contemplates an ultimate official interpretation that could be at variance with its own view, there is no reason for treating the interpretative declaration in the same way as an attempt to modify or to vary the treaty.”
29 Belilos v Swtizerland, Appl no 10328/83 (7 May 1986) at para 102 (Eur Comm Hum Rts).