Lauterpacht Lectures 2003: 'Denial of Justice in International Law' by Mr Jan Paulsson

10, 11 and 12 November 2003

Mr Jan Paulsson,Freshfields Bruckhaus Deringer, Paris

The theme of the 2003 Lectures was “Denial of Justice in International Law”.

The last comprehensive work devoted to denial of justice in international law was Alwyn Freeman’s seminal monograph, The International Responsibilities of States for Denial of Justice, which appeared in 1938. Since then, the context for prosecuting this delict has changed in fundamental ways. It is now settled law that States cannot disavow international responsibility by arguing that their courts are independent of the government. Even more importantly, the doors of international tribunals have swung wide open to admit claimants other than states: non-governmental organisations, corporations, and individuals.

In the last decade, treaties for the protection of investment have generated acute new interest in this hoary cause of action. If they believe that the local legal system has been fundamentally unfair to them, foreign investors may directly seize international tribunals to claim denial of justice. This has given rise to intense controversy. On the one hand, there are those who consider that the very prospect of an international tribunal passing judgment on the workings of national courts constitutes an intolerable affront to sovereignty. Others believe that such must precisely be the role of international tribunals if the rule of law is to prosper.

The proponents of imperial might once found it convenient to drape the exercise of power in virtuous shrouds, as in the Don Pacifico affair in 1850, when Palmerston justified the seizure of all ships in the harbour of Piraeus (in retribution for the failure of the Greek government to grant redress to a British subject) by his Civis Romanus Sum oration in the House of Commons:

“As the Roman, in days of old, held himself free from indignity when he would say ‘Civis Romanus Sum’ [I am a Roman citizen], so also a British subject in whatever land he may be, shall feel confident that the watchful eye and the strong arm of England will protect him against injustice and wrong.”

Today gunships have been replaced by international tribunals. And so even those who have no might may have the right to seize international jurisdictions to question the conduct of courts in the most powerful countries. The shoe may thus find itself on the other foot, as when the U.S. recently found itself taken to task on account of alleged denials of justice suffered by two Canadian investors at the hands of the courts of Massachusetts and Mississippi. This caused U.S. political writers and lobbyists to excoriate international treaties that may “trample the voice of the people and national sovereignty,” and to criticise “tribunals held in secret, presided over by obscure arbiters.”

And yet when one such tribunal, in the famous Loewen case decided in the summer of 2003 by Sir Anthony Mason, Lord Mustill, and Hon. Abner Mikva, declined for technical jurisdictional reasons to hold the US government responsible for what it acknowledged had been a “miscarriage of justice,” an opposite torrent of rhetoric was unleashed by critics who lambasted the arbitrators’ cowardice or even cynicism; their “reasons defy the imagination,” thundered a well known Swiss commentator, “in what world does this Arbitral Tribunal live?”

Mr Paulsson’s Lauterpacht Lectures sought to put this controversy in perspective and, beyond the din and fray of such current events, examine the contemporary legal foundations of the delict of denial of justice and its potential contribution to the international rule of law.

Denial of Justice in International Law has been published by Cambridge University Press as part of the Hersch Lauterpacht Memorial Lectures series.

The three lectures were:

Lecture One: Denial of Justice is Always Procedural (proposing a modern definition of the delict which excludes the notion of substantive denial of justice).

Lecture Two: Inevitable Exhaustion (containing a detailed discussion of the recent Loewen case and concluding that the exhaustion of local remedies is an inherent substantive requirement to be applied irrespective of waiver).

Lecture Three: The Spectre of “Obscure Arbiters” (concluding that the rule of law requires that international tribunals have the discretion to make subjective judgments).