Sunday, March 25, 2012

Texaco-Libya Arbitration case brief

Texaco-Libya Arbitration (Arbitration, 1978; p. 112)
  • Libyan law nationalized Texaco properties/assets. Deeds of concession btwn the companies involved and Libya in which the law applicable was “principles of intl law.” (Choice of law provision)
  • This case is interesting b/c it is a private party v. a state. This is likely why arbitration was chosen here.
  • Arbitration is impt:
    • More expedient than trials.
    • Two conventions on this. (see my 9/19 (4) notes).
  • Libya wld abide by arbitration decision b/c they wouldn’t like to be seen as a “violator” and b/c they are interested in Western capital/investment.
  • Appropriate compensation must be given.
  • Ct goes to UN to discern “principles of intl law.”—UN resolutions (recommendations).
  • There is no dispute that countries can nationalize-the conflict is over the appropriate compensation. (Prompt, adequate [Western Companies] v. including things like did the company exploit)
  • Custom can be created outside of the Article 38 sources.
  • Have to distinguish btwn resolutions that state the existence of a generalized agreement and those that have nothing more than a de lege feranda value only in the eyes of those States that adopted them. Paragraph 87, p. 120
  • Article 38 makes no reference to resolutions—what shld be their status?
  • International Resolutions of other international orgs.
  • What about resolutions of NGOs that 90% of countries support but the few largest countries do not.
  • P. 121, n.1: arbitrations can be tailor made to specific situations like this one.
  • P. 122, n. 3: To have custom, you must have opinio juris. (this is how resolutions fit into Article 38)
  • General Principles of International law:
    • One source of intl law
    • Question of consent—not necessary here
  • Lotus and Asylum really focused on consent. 19th Century Positivist View

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