Arbitration — Jurisdiction — Multiple parties — Channel Tunnel Concession Agreement — Provision for arbitration of issues between the two concessionaires and the two governments — Extent of jurisdiction — Whether claims having to be based upon Concession Agreement — Whether claimants also entitled to invoke general international law and treaties between the United Kingdom and France — Provision that arbitrators nominated by the concessionaires not entitled to vote on matters of treaty interpretation — Scope of exclusion — Whether requiring arbitrators nominated by the concessionaires not to take part in discussion

Arbitration — Applicable law — Distinction between applicable law and source of rights and obligations of the parties — Channel Tunnel Concession Agreement — Whether sole source of rights and obligations between the governments and the concessionaires — Relevance of general international law — Relevance of treaties between the United Kingdom and France

Arbitration — Procedure — Responsibility and quantum dealt with in separate phases — Finding of responsibility against both United Kingdom and France — Apportionment of responsibility for compensation — Whether a matter for the responsibility or quantum phase

Economics, trade and finance — International contracts — Concession Agreement between operators of Channel Tunnel and France and the United Kingdom — Government law — Principles of interpretation — Principles of treaty interpretation applicable to interpretation of international law contract between State and private party — Nature of Channel Tunnel legal regime — Whether imposing joint and several responsibility upon governments — Exclusivity — Whether precluding grant of subsidy to ferry operator

Jurisdiction — Public order — Channel Tunnel — Attacks on Channel Tunnel terminal by clandestine migrants seeking to reach United Kingdom — Responsibility of France and the United Kingdom — Whether United Kingdom possessing any jurisdiction on French territory — Whether United Kingdom responsible for disorder in France — Channel Tunnel legal regime

Sea — Tunnel — Channel Tunnel between France and United Kingdom — Legal regime applicable to Channel Tunnel — Treaty of Canterbury between United Kingdom and France, 1986 — Concession Agreement between France and United Kingdom and concessionaires — Nature of jurisdiction under Channel Tunnel legal regime

State responsibility — Joint and several responsibility — International Law Commission Articles on State Responsibility — Article 47 — Channel Tunnel Concession Agreement — Whether imposing joint and several responsibility upon France and United Kingdom — Public order violations in France — Attacks on Channel Tunnel terminal by clandestine migrants seeking entry to United Kingdom — Failure of French authorities to prevent — Whether engaging responsibility of United Kingdom — Joint organ — Intergovernmental Commission — Failure of action by Intergovernmental Commission — Whether entailing responsibility of United Kingdom as well as France

Treaties — Interpretation — Treaty authentic in two languages — Discrepancies between different texts — Application of principles of treaty interpretation to international contract between private parties and States — Context — Object and purpose — Resolution of discrepancies between different language texts

Territory — Sovereignty over territory — Policing as exercise of sovereign power — Channel Tunnel between France and United Kingdom — Disorder in France at Channel Tunnel terminal — Attacks on terminal by clandestine migrants seeking entry to United Kingdom — Responsibility of France to prevent — Whether engaging responsibility of the United Kingdom

Arbitration — Place of arbitration — Relevant factors — Neutrality of forum — Applicability of New York (1958) or Panama (1975) Conventions — Differences between two Conventions — Positions taken by Government of Canada in earlier proceedings — Whether relevant — Convenience of parties and counsel — NAFTA Articles 1122, 1130 — ICSID Arbitration (Additional Facility) Rules, Articles 20, 21

Arbitration — Jurisdiction — Successive arbitrations on the same claim — NAFTA, Chapter 11 — First arbitration commenced without valid waiver under Article 1121(2)(b) — First tribunal deciding that it lacked jurisdiction — Whether new proceedings permissible — NAFTA Articles 1120, 1121

Arbitration — Principles — Res judicata — Decision of first tribunal denying jurisdiction over claim — Whether precluding new arbitration on same claim — Interpretation of first tribunal’s decision — NAFTA Article 1136 — ICSID (Additional Facility) Rules, Article 53(4)

Arbitration — Procedure — Abuse of process — Successive proceedings relating to same claim — Whether Tribunal has inherent power to stay proceedings — No evidence of lack of bona fides — Second arbitration allowed to proceed

Arbitration — Procedure — Costs and expenses — Unsuccessful jurisdictional objection — Whether respondent should be required to pay costs and expenses in any event — Extent of Tribunal’s discretion — Dismissal of claim on the merits

Economics, trade and finance — International investment — Protection of investments — NAFTA Chapter 11 — Investor — Status of investor — Claimant owning or controlling investment in a holding company registered in a non-NAFTA State — Whether claimant possessing status of investor under NAFTA

Economics, trade and finance — International investment — Standard of treatment — Minimum standard — Fair and equitable treatment — NAFTA Article 1105 — Standard of review — Breach of contract — Whether reaching level of prohibited treatment — Effect of financial crisis on respondent State

Expropriation — Direct and indirect expropriation — Non-performance of a contractual obligation — Whether amounting to expropriation — NAFTA Article 1110

Relationship of international law and municipal law — Treaties — Effect in municipal law — Statute designed to give effect to treaty — Principles of interpretation — Whether court entitled to refer to subsequent international agreement not given effect in municipal law — Justiciability — Comity — Whether authorities of one State required to inquire into propriety of conduct of authorities of another State in territory of other State — Mutual assistance in tax matters — Whether authorities of requesting State owing duty of full and frank disclosure

Treaties — Interpretation — Vienna Convention on the Law of Treaties, 1969, Article 30(3)(a) — Subsequent agreement between the parties — Relevance as aid to interpretation of earlier agreement

Human rights — Due process — Legal professional privilege — Fruit of the poisonous tree — Limits on application of doctrine — The law of Bermuda

Aliens — Expulsion — Whether speech given by respondent in Rwanda before granted permanent residency in Canada constituting incitement to murder, genocide or hatred, or crime against humanity — Deportation under Immigration Act 1985

International criminal law — Incitement to crime of genocide — Definition — Whether incitement to genocide having no requirement of proof of genocide — Crimes against humanity — Definition — Speech inciting hatred — Definition

Relationship of international law and municipal law — Interpretation and application of provisions of Canadian Criminal Code in accordance with customary law and Canada’s treaty obligations — Relevant sources of international law and recent jurisprudence including International Criminal Tribunal for the Former Yugoslavia and International Criminal Tribunal for Rwanda — Whether Canadian case law inconsistent with international criminal tribunals on crimes against humanity — Canadian case law overruled to the extent of inconsistency — The law of Canada

Relationship of international law and municipal law — Treaties — Effect in municipal law — Whether North American Free Trade Agreement (“NAFTA”) part of Canada’s municipal law — Whether NAFTA attracting the application of Section 96 of the Constitution Act 1867 — Distinction between parliamentary approval and incorporation of a treaty — Whether North American Free Trade Agreement Implementation Act 1993 incorporating NAFTA into municipal law

Treaties — Interpretation — Investor-State procedures in NAFTA Chapter 11 — Investor establishing State responsibility of Party for claim — International nature of obligations under NAFTA Chapter 11 — Whether use of Canadian constitutional values and principles to interpret international treaties at odds with international law regarding treaty interpretation

International tribunals — Jurisdiction — Whether NAFTA Chapter 11 granting exclusive jurisdiction to NAFTA tribunals — Whether NAFTA tribunals having jurisdiction to invalidate municipal laws or government practices — NAFTA tribunals addressing treaty obligations and international commitments — Adjudication of treaty rights and obligations by Canadian courts — The law of Canada

Human rights — United Nations Human Rights Committee — Indication of view to respondent State — Whether binding — International Covenant on Civil and Political Rights, 1966 — Effect of indication of views — Defendant convicted before Special Criminal Court — Committee expressing view that defendant’s right under Article 26 of the Covenant to equality before the law and equal protection of the law violated — Effect of views of the Committee — Whether defendant entitled to have conviction quashed — Concept of legitimate expectations — Effect of the Covenant in municipal law

Human rights — Equality before the law — International Covenant on Civil and Political Rights, 1966 — Article 26 — Defendant tried before Special Criminal Court — Whether decision to try defendant before Special Criminal Court based on reasonable and objective grounds — Whether violating right to equal protection before the law

Relationship of international law and municipal law — Treaties — Effect in municipal law — International Covenant on Civil and Political Rights, 1966 — Covenant not incorporated into Irish law — Whether creating effects in Irish law — Doctrine of legitimate expectations — Irish Constitution, Article 29 — Whether conferring rights upon individuals — Views of the Human Rights Committee — Whether legally binding within Irish law — Whether conferring rights enforceable in Irish law — The law of Ireland

War and armed conflict — Neutrality — Whether law of neutrality still part of international law — Movement of troops and munitions by belligerent through territory of neutral State — Whether neutral State obliged to prevent — Justiciability of obligations in national court

War and armed conflict — Use of force — Prohibition of use of force in international relations — United Nations Charter, 1945, Article 2(4) — Jus cogens status — Whether requiring Ireland to prevent passage of United States forces through Irish territory on the way to Iraq — Constitution of Ireland, Article 29

Relationship of international law and municipal law — In general — Whether rules of international law yield to municipal law in case of conflict — Justiciability of international law obligations in municipal courts — The law of Ireland

Treaties — Interpretation — Treaty not incorporated into municipal law — Interpretation of treaty by court — Whether court can take cognizance of treaty and contents as facts — Whether court can interpret or construe treaty or legal consequences arising therefrom — Whether court can determine true agreement concluded between contracting States

Jurisdiction — Sovereign immunity — Allegation of unlawful conduct by State and of interference by one State in second State — Whether courts can interfere with foreign sovereign — Role of judicial branch of government — Court having jurisdiction — Whether court to exercise judicial restraint if involvement of foreign States — Whether act of State doctrine or doctrine of judicial restraint applicable in South Africa

Relationship of international law and municipal law — Act of State and justiciability — Status of act of State doctrine in South African law — Judicial restraint in matters of foreign relations — Conduct of foreign relations — Role of courts — The law of South Africa

Extradition — Extradition in absence of extradition treaty — Section 3(2) of the Extradition Act 1962 — Exchange of diplomatic notes relating to proposed extradition — Consent by President to ad hoc extradition — Whether exchange of diplomatic notes or President’s consent or both amounting to international agreement — Meaning of “international agreement” — Meaning of “treaty” as defined in Vienna Convention on the Law of Treaties, 1969 — Whether informal international agreement had come into being

Treaties — Vienna Convention on the Law of Treaties, 1969 — Meaning of “treaty” as defined in Convention — Requirements for conclusion of international agreement — Informal agreements — Whether exchange of diplomatic notes giving rise to informal agreement — Whether domestic procedures relating to extradition amounting to international agreement — The law of South Africa

Extradition — Human rights — Whether extradition contrary to fundamental human rights — Whether extradition procedure contravening right to lawful administrative action — Extradition by State of own national — Whether contravention of constitutional right to remain in country of nationality — Extradition Act 1962, Sections 3(2), 10(2) — Constitution of the Republic of South Africa Act 108 of 1996, Sections 33, 21(3)

Human rights — Liberty and freedom of movement — Extradition — Whether extradition contrary to fundamental human rights — Whether right to lawful administrative action contravened by extradition procedure — Whether extradition contravening right of national to remain in country of nationality — Extradition Act 1962, Sections 3(2), 10(2) — Constitution of the Republic of South Africa Act 1996, Sections 33, 21(3)

Nationality — Rights associated with nationality — Whether nationals enjoying right not to be extradited — Whether constitutional right of national to reside in State of nationality overriding claim of foreign State to extradite national — Whether reciprocity required in extradition of nationals — The law of South Africa

War and armed conflict — Use of force — Aggression — Crime in international law — Military action in Iraq in 2003 — Whether aggression — Whether justiciable in English courts — War crimes — Protesters taking action against military base — Damage to property — Whether capable of being justified as steps taken to prevent a crime of aggression

International criminal law — Aggression — Whether crime under international law — Absence of agreed definition of aggression — Whether absence of agreed definition indicating aggression not yet an international crime — War crimes — International Criminal Court Statute 1998 — Crimes under municipal law — Whether defendants’ belief that action necessary to prevent international crimes a defence — Whether crimes under international law form part of municipal law

Relationship of international law and municipal law — Customary international law — Whether part of English law — Crimes under customary international law — Whether constituting crimes under municipal law of England — The law of England

War and armed conflict — Use of force — Aggression — Crime in international law — Military action in Iraq in 2003 — Whether aggression — Whether justiciable in English courts — War crimes — Protesters taking action against military base — Damage to property — Whether capable of being justified as steps taken to prevent a crime of aggression

International criminal law — Aggression — Whether crime under international law — Absence of agreed definition of aggression — Whether absence of agreed definition indicating aggression not yet an international crime — War crimes — International Criminal Court Statute 1998 — Crimes under municipal law — Whether defendants’ belief that action necessary to prevent international crimes a defence — Whether crimes under international law form part of municipal law

Relationship of international law and municipal law — Customary international law — Whether part of English law — Crimes under customary international law — Whether constituting crimes under municipal law of England — The law of England

War and armed conflict — Definition of war — Whether a matter for English or international law — Executive decision whether or not United Kingdom at war — Enemy aliens — Whether English law recognizing state between war and peace — Rule that enemy alien resident in enemy territory may not bring proceedings in the English courts — Whether applicable in armed conflict not involving war in traditional sense — Iraq in 2003

International organizations — United Nations — Use of force — Power of Security Council to authorize military action — Iraq in 2003 — The law of England

War and armed conflict — Use of force — Aggression — Crime in international law — Military action in Iraq in 2003 — Whether aggression — Whether justiciable in English courts — War crimes — Protesters taking action against military base — Damage to property — Whether capable of being justified as steps taken to prevent a crime of aggression

International criminal law — Aggression — Whether crime under international law — Absence of agreed definition of aggression — Whether absence of agreed definition indicating aggression not yet an international crime — War crimes — International Criminal Court Statute 1998 — Crimes under municipal law — Whether defendants’ belief that action necessary to prevent international crimes a defence — Whether crimes under international law form part of municipal law

Relationship of international law and municipal law — Customary international law — Whether part of English law — Crimes under customary international law — Whether constituting crimes under municipal law of England — The law of England

War and armed conflict — Neutrality — War crimes and grave breaches of the Geneva Conventions, 1949 — Arms shipments passing through United Kingdom en route to Israel during conflict between Israel and Lebanon — Whether contrary to international law

War and armed conflict — Civilians — Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, 1949 — Definition of protected person — Whether population of Lebanon during conflict between Israel and Lebanon protected persons — Whether capable of being victims of grave breaches — Complicity in grave breaches — Whether permission for shipments passing through the United Kingdom en route to Israel entailing complicity

Relationship of international law and municipal law — Conduct of international relations — Justiciable questions — Allegation that foreign State involved in violations of international law — The law of England

Relationship of international law and municipal law — In general — Whether rights arising between States on plane of international law enforceable in municipal courts — Treaties — Charter of the United Nations — Resolutions of United Nations Security Council — Justiciability in English courts — Military action in Iraq in 2003 — Whether lawful — Whether legality of conflict justiciable in English courts — Whether decisions regarding foreign policy subject to judicial review

War and armed conflict — Resort to force — Enforcement action — Military action in Iraq in 2003 — Whether lawful — United Nations Security Council resolutions on Iraq — Resolutions 678 (1990), 687 (1991) and 1441 (2002) — Whether legality of use of force justiciable in English courts

Human rights — Right to life — European Convention on Human Rights, 1950, Article 2 — Positive obligation of States to safeguard right to life — Deaths of British soldiers in Iraq — Whether Article 2 imposes an obligation on government not to become involved in unlawful military conduct — Whether legality of military conduct justiciable in English courts — The law of England