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The immunity of international organizations before and after Jam v IFC: Is the functional necessity rationale still relevant?

1. Introduction While the International Court of Justice held that State immunity ‘derives from the principle of sovereign equality of States’,[1] it has been widely accepted that the immunity of international organizations (IOs) is based on the principle of ‘functional necessity’: immunities are necessary to shield IOs from unilateral intervention by member States, so as...

To what immunities are international organizations entitled under general international law? Thoughts on Jam v IFC and the ‘default rules’ of IO immunity

1. Introduction Section 2(b) of the US International Organizations Immunities Act 1945 (IOIA) prescribes that designated international organizations ‘shall enjoy the same immunity from foreign suit and every form of judicial process as is enjoyed by foreign governments’. This outwardly straightforward provision seems to bring States and international organizations (IOs) under a common immunity regime...

Immunities of organizations under international law: Reflections in light of Jam v International Finance Corporation

Introduced by Martina Buscemi, Zeno Crespi Reghizzi, Chiara Ragni In its decision of February 27, 2019 in Jam v International Finance Corporation, the US Supreme Court ruled on the highly debated issue of immunity of international organizations. This case originated from a claim for damages brought by local farmers and fishermen and a small village...

Renewable energy investment cases against Spain and the quest for regulatory consistency

1. Introduction Spain is notoriously the most severally affected state in arbitration proceedings based on the Energy Charter Treaty (ECT), as it is believed to have lost 825 millions euros to date, with an aggregated 10,000 million euros sum being sought.[1] As of May 2020, twenty arbitral decisions have been rendered in what is now...

The assessment of the FET standard between legitimate expectations and economic impact in the Italian solar energy investment case law

1. Introduction International investment law has always been concerned with the need of balancing the State’s power to regulate in the public interest, on the one hand, and the need to grant certain standards of protection to the foreign investors impacted by the State’s measures, on the other hand.[1] The search for a balance between...

Renewable energy investment cases against Italy and Spain: Same issues, different scenarios?

Introduced by Gian Maria Farnelli and Marco Pertile   Given the high costs of infrastructures, the renewable energy sector is one of the most foreign investment-dependent economic sectors. Many States have thus enacted remuneration schemes aimed at attracting foreign investors, typically in the form of feed-in tariffs, ever since the late 1990s. Starting from 2010,...

The effect of the WTO dispute settlement crisis on the development of case law on national security exceptions: A critical scenario

1. Preliminary remarks The WTO dispute settlement system (DSS) is facing the most serious crisis since its inception. In December 2019 the term of two of the remaining three Appellate Body (AB) members expired. Under Rule 15 of the Working Procedures for Appellate Review, they continue to work on completing the disposition of appeals to...

The WTO Panel Report in Russia – Traffic in Transit: Cutting the Gordian Knot of the GATT Security Exception?

1. Introduction The security exception of the GATT 1994 was inserted into the original GATT 1947 and it was then reinstated in the GATT 1994 under Article XXI.[1] Starting from its negotiation history, the security exception of the GATT was riddled with debates over the meaning of some words like ‘essential security interests’ or ‘it...

WTO security exceptions: A landmark Panel report in times of crisis

Introduced by Loris Marotti and Giovanna Adinolfi   Just over a year has passed since the adoption of the report in the Russia–Traffic in transit case in which, for the first time, the national security exceptions under Article XXI GATT 1994 have been interpreted and applied by a WTO Panel. The report appeared as a...

The non-justiciability of third-party claims before UN internal dispute settlement mechanisms. The ‘politicization’ of (financially) burdensome questions

1. The political question doctrine and the United Nations The use of the political question doctrine (PQD), as a form of judicial abdication, has long been asserted by domestic courts seeking to impose a bar on the merit of claims that challenge the validity, the legality, or the expediency of governmental acts involving highly political...

The political question doctrine vis-à-vis drones’ ‘outsized power’: Antithetical approaches in recent case-law

1. Introduction Literature on armed drones (or Unmanned Aerial Vehicles – UAVs) and on their impact not only on the international law on the use of force (the so-called jus ad bellum), but also on the law of armed conflict (the so-called jus in bello) and human rights law, has been flourishing in the last...

The multi-faceted character of the ‘political question’ doctrine in recent practice: A one-size-fits-all tool?

Introduced by Micaela Frulli   The non-justiciability of ‘political acts’ or ‘acts of government’ is accepted in most legal systems, although with notable differences in denomination and meaning. The doctrine was first propounded in France (actes de gouvernement) and later spread to the United Kingdom, under the ‘royal prerogative’ label, and to the United States,...