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Published online by Cambridge University Press: 21 July 2009
This arbitration arose under the Air Services Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland (hereinafter: HMG) and the Government of the United States (hereinafter: USG) concluded at Bermuda, 23 July 1977, as subsequently amended. This Agreement, which is generally referred to as Bermuda 2, provides, inter alia, that airport charges should not discriminate between a state's domestic carriers and those of the other party, and that theparties should use their best efforts to ensure that charges should be based on certain principles.
1. Case of Certain Norwegian Loans (France v. Norway), 1957 ICJ Rep. 9, at 79.
2. Interhandel case (Switzerland v. United States of America), 1959 ICJ Rep. 6, at 87–89.
3. Case concerning the Air Services Agreement of 27 March 1946 (United States of America v. France), 54 ILR 304, at 324.
4. C.F. Amerasinghe, Local Remedies in International Law 112–113 (1990).
5. See the case concerning Elettronica Sicula S.p.A. (ELSI case), (United States of America v.Italy), 1989 ICJ Rep. 15, at 42 and 43, where the ICJ referred to this criterium.
6. Amerasinghe, supra note 4, at 300, referring to Sh. Rosenne, The Time Factor in the Jurisdiction of the International Court of Justice 71 (1960).
7. Id., at 305.
8. A request for declaratory relief will lead to a declaratory award, which simply establishes the legal position between the parties, without condemning a party to a performance.Consequently, a declaratory award is not enforcable. See, e.g., A. Redfern & M. Hunter, Law and Practice of International Commercial Arbitration 276 (1986).
9. See, eg., C.F. Amerasinghe, Whither the Local Remedies Rule?, 5 ICSID Review - Foreign Investment Law Journal 292–310, at 300 (1990), in which he confirms that the exhaustion rule does not apply where only a declaratory judgment, as opposed to a remedial right, is requested.
10. See also Amerasinghe, supra note 4, at 177–178; and M.N. Shaw, International Law 509–516(1991).
11. In this light, reference should be made to the Dissenting Opinion of Mr Lever. Without going into the substance of that Opinion, attention may be drawn to the fact that one of the reasons for Mr Lever's dissent was that part of the majority's opinion deciding in USG's favor was based on an approach or argument not contained in USG's pleadings. The difference with the exhaustion issue is that here the Tribunal had already found three arguments in favour of the non-application of the exhaustion rule, and did not really need the fourth argument.
12. Article 17(6) Bermuda 2 provides: “[t]he Contracting Parties may submit requests for clarification of the decision within 15 days after it is rendered and any clarification given shall be issued within 15 days of such request.”
13. Article 30 Tribunal Rules provides, as far as relevant here: “[w]ithin eight weeksafter the date on which the award was rendered, either party may request a supplementary decision on the award.”
14. The phrase functus officio is used to describe a tribunal which is finished, and whose duties are at an end. See Redfern & Hunter, supra note 8, at 271.
15. Citing the Continental Shelf (Interpretation) case (UK v. France), 54 ILR 54 139.
16. Article 22(2) Tribunal Rules provides: “[e]xceptionally, the Tribunal may, before the award has been rendered, re-open the proceeding on the ground that new evidence is forthcoming of such a nature as to constitute a decisive factor, or that there is a vital need for clarification on certain points.”
17. Article 13 Tribunal Rules provides: “(1) An accidental error in any instrument or supporting document may, with the consent of the other party or by leave of the Tribunal, be corrected at any time before the Award is rendered[; and] (2) Within 30 days after a decision or award is rendered, the Tribunal, upon the request of a party or upon its own motion, may after notice to the parties rectify any clerical, arithmetical, or similar error in the decision or award.”
18. This Article provides, as far as relevant here, that a party requesting revision shall indicate “the change sought in the award, the discovery of some fact of such a nature as decisively to affect the award, and evidence that when the award was rendered that fact was unknown to the applicant and that the applicant's ignorance of that fact was not due to negligence.”
19. See note 17, supra.
20. An interesting combination of revision and appeal is contained in the Draft Convention on Arbitral Procedure of the International Law Commission at its Fifth Session, at 99–104 (New York, 1955), which provides that if forsome reason it is not possible to make a request for revision to the original tribunal, a request can be made to the ICJ. See J. Gillis Wetter, The International Arbitration Process, Public and Private, Vol. 2, at 553–558 (1979).
21. Remarks by J.J. van Haersolte-van Hof, The Iran-US Claims Tribunal: Its Contributions to International Law and Practice, in R. Lefeber (Ed.), Contemporary International Law Issues:Opportunities at a Time of Momentous Change 9–13, at 9 (1994).
22. D.V. Sandifer, Evidence Before International Tribunals 423 (1975).
23. Id., at 426.
24. See also Dames and Moore v. Iran, Decision No. 36–54–3, 8 Iran-US CTR 107 (1985), citing a number of contradictory views.