Главная страница | Контакты | Случайная страница Автомобили Астрономия Биология География Дом и сад Другие языки Другое Информатика История Культура Литература Логика Математика Медицина Металлургия Механика Образование Охрана труда Педагогика Политика Право Психология Религия Риторика Социология Спорт Строительство Технология Туризм Физика Философия Финансы Химия Черчение Экология Экономика Электроника

A) Express Waiver

Express waiver takes place where the host or respondent State expressly agrees that the rule of local remedies will not apply to a particular dispute or particular disputes. In the law of diplomatic protection, this may take place either before or after the dispute has arisen and may even be by a unilateral act by the host or respondent State. Such waivers have been given in both multilateral treaties and bilateral treaties and do not raise any real problems. Examples of such waivers in bilateral treaties are to be found in those that set up the Mixed Arbitral Tribunals and Mixed Claims Commissions between the two World Wars. Particular reference may be made to Article V of the Convention of 1923 establishing the US-Mexican General Claims Commission. ⁷³ A more recent example is the treaty between Canada and the US setting up to Gut Dam Arbitration in 1965. ⁷⁴ The Convention for the Settlement of Disputes between States and Nationals of Other States is an example of a multilateral treaty which excludes the operation prima facie of the rule. By virtue of Article 26 of that Convention, ⁷⁵ where a host State and an alien whose national State is a party to the Convention agree to submit to international arbitration under the auspices of ICSID, established under the Convention, there is no need for the alien to exhaust local remedies before seeking arbitration unless specific provision is otherwise made for such recourse. This is also a case where the waiver has been given before the dispute arises, unlike in respect of most bilateral treaties. ⁷⁶

(p. 163) Where the express waiver is given in a bilateral or multilateral treaty and after or before the dispute arises, it is normally irrevocable ⁷⁷ although it may be revoked by the agreement of the parties or with the consent of the State of the alien affected. In the case of the ICSID Convention, for example, the express terms of the waiver in the Convention permit revocation by unilateral act of the respondent or host State at any time before it consents to arbitration under the Convention, which consent must be given by a separate act in writing, the other party being required also to give its consent. Thus, while agreement to arbitrate raises a presumption that there has been an express waiver of the rule of local remedies, that presumption is rebuttable by a unilateral act by the host or respondent State, or by agreement between the alien and the State party to the dispute, provided the revocation is done before or at the time that the consent to arbitration is given by the host or respondent State. ⁷⁸

Where there is a bilateral or multilateral agreement between States to submit to arbitration or international judicial settlement disputes between their nationals and host States, there is generally no understanding that the rule of local remedies is waived by the very fact of such submission to arbitration or judicial settlement, as is evidenced by the numerous decided cases in which disputes were submitted to such arbitration or judicial settlement under such agreements. No reference was made to the specific inclusion of the rule in the treaties or agreements and the rule was held to be prima facie applicable. ⁷⁹

This issue is discussed further later in this Chapter in regard to implied waiver. Difficulties arise in connection with express agreements made between host States and aliens excluding the rule or express renunciations of the rule. In the case of the above express agreements or renunciations, the question is whether such agreements or renunciations may be unilaterally revoked. Clearly, if the agreement or renunciation is governed by a law other than that of the host State, no revocation according to the law of the (p. 164) host State can take place. But what if, for instance, the agreement appears in a contract governed by the law of the host State which was legally terminated according to the law of the host State? Can the alien or his national State then rely on the express waiver of the rule by the host State? The answer would seem to hinge on whether parts of a contract could be governed by a different law from that which governs other parts. In the case of arbitration clauses in State contracts with aliens, it seems possible to take the view that cancellation of the contract does not result in the cancellation of the arbitration clause, probably on the basis that the arbitration clause stands on its own and is not subject to the total law of the host State. While it may be interpreted in accordance with that law, it cannot be unilaterally and arbitrarily terminated under that law, although there may be refinements of this rule. A similar principle may be applicable to a waiver of the rule of local remedies in a State contract with an alien or a simple renunciation of the rule by a unilateral act in respect of an alien. ⁸⁰