Journal du Droit International: Issue 3 of 2024
The third issue of the Journal du droit international for 2024 has been released. It contains two articles and several case notes relating to private international law issues. It also pays tribute to Ibrahim Fadlallah (1942-2024) who was a leading Lebanese-French academic and arbitrator.
In the first article, Daniel Mainguy (University of Paris Panthéon-Sorbonne) uncovers the impact of war as a mutlfaceted situation on arbitration, studying the place of mandatory law and the future of this method of dispute resolution in this peculiar context and beyond (Arbitrage et litiges de guerre).
The English abstract reads:
While arbitration, including inter-state arbitration, and in particular its advantages over state, national or international proceedings are well known to lawyers, the concept of “war” is less clear. In addition to classic wars, such as the one in Ukraine, there is now a variety of non-armed, non-military acts of aggression by or against private entities, by or against states, including ordinary investment or commercial disputes, but in an “atmosphere of war”. In contrast to the law of armed conflicts, these forms of “atypical warfare” are not the subject of specific international law. This leaves the place of war, war disputes and their treatment to be measured. Consequently, while war is usually covered by arbitral practice in all its aspects, from the constitution of the arbitral tribunal to the award and the conduct of the proceedings, there is a major difficulty : are the mandatory law of these forms of war, such as economic sanctions or norms of conduct prohibiting human rights violations, likely to be covered by the international arbitrator ? Could the development, not so much of arbitration as of the control of arbitral awards, or even of the prevalence of mandatory law, lead to a change in the very mission of the arbitrator ? In addition to these many questions, there is another dimension : the way in which arbitration law deals with war. Numerous international instruments deal, primarily or secondarily, with the fact of war, but the idea of arbitration as an ordinary mode of peaceful dispute resolution, so essentially envisaged at the beginning of the twentieth century, has not allowed this extraordinary tool, arbitration, to really emerge. Now, with the disintegration of the international order and the general criticism of its institutions, it is perhaps time, indeed urgent, to return to this subject.
In a second article, Bernard Teyssié (University of Paris-Panthéon-Assas) also deals with arbitration but in the context of international labour law. The contribution analyses the development of conventional arrangements within transnational companies, protecting workers’ rights beyond the diversity of national labour laws (Les accords de groupe transnationaux).
The English abstract reads:
For more than twenty years, groups with an international dimension have multiplied the agreements concluded with similar trade union organizations, with a view to harmonising the standards in force in their constituent entities, irrespective of the country in which they are based. This desire for harmonisation is combined with that of requiring all subsidiaries, which are expected to adopt a socially responsible attitude, to comply with rules that are consistent with the provisions of international conventions, starting with those adopted within the framework of the International Labour Organization. Particular attention is paid to the rejection of discriminations, especially on the grounds of sex, the protection of employees’ health and safety, and the payment of decent wages. On a collective level, the emphasis is on freedom of association, an instrument for defending workers’ interests and a key to negotiating collective agreements that will ensure them more favourable treatment than that resulting from the application of the provisions of the national legislation to which they are subject.
The standards in force in a State are unable to deal with transnational company agreements. Their negotiators opt for conventional arrangements, based on conciliation, mediation or arbitration, with a view to ensuring that any difficulties arising during their application are settled out of court. It is essential to avoid having to resort to a judge and the national law that he applies. The only law that allows transnational company agreements to be fully understood is the international social law set out in the international instruments that are wholly or partly devoted to labour relations and to which transnational agreements systematically refer. The creation, if necessary under the aegis of the International Labour Organization, of an arbitration chamber to which disputes arising from these agreements could be referred, and which would decide them in the light of the international social law thus identified, would help to define their contours and ensure their deployment.
The table of contents of the issue can be accessed here.