Indian Judge at the ICJ: New Developments

According to a report by Dhanajay Mahapatra in the Times of India, Hon. Justice Dalveer Bhandari of the Indian Supreme Court is likely to be nominated by the Government of India for the position of a permanent judge at the ICJ. Readers may recall that we have discussed this issue before (here). In that post, I had said that an Indian judge could fill the vacancy arising out of the retirement of Judge Owada. It now appears that an Indian judge would fill the vacancy arising from the departure of Judge Awn Shawkat Al-Khasawneh, who left in order to take up the position of the Prime Minister of Jordan. India had supported Judge Al-Khasawneh’s in getting elected to the ICJ, and “MEA [India's Ministry of External Affairs] circles believe that India’s nominee for the judge’s post in ICJ will get support from Jordan along with friendly neighbours like Sri Lanka and Bangaldesh.”

The Times of India article offers a fascinating insight into the Indian practice relating to the nomination of jurists to the ICJ. As the article details, the selection process involved both the Government of India and Indian national group at the Permanent Court of Arbitration (PCA).  To recap, the process of appointment of judges to the ICJ is governed by Article 4 of the ICJ Statute, which provides, inter alia, that:

1. The members of the Court shall be elected by the General Assembly and by the Security Council from a list of persons nominated by the national groups in the Permanent Court of Arbitration, in accordance with the following provisions.

India’s national group in the PCA comprises of retired Judges M. H. Kania and Y. K. Sabharwal, as well as senior advocate B. Sen. It appears that in the end, the list of possible names narrowed down to P. S. Rao, an ex-legal advisor in the Indian Ministry of External Affairs and currently an arbitrator in a dispute between India and Bangladesh at the PCA, and Justice Dalveer Bhandari. P. S. Rao’s name had been proposed by the Prime Minister’s Office to the national group. Initially, two of the three members of the PCA’s India national group were in favour of the nomination of P. S. Rao, however, after two months of deliberations, the national group chose to settle on Justice Dalveer Bhandari because of his “pro-poor and pro-social equity judicial disposition“.

Needless to say, this is great news. Its been over 20 years since India had a permanent judge on the ICJ (Justice R. S. Pathak, the last Indian permanent judge, retired in 1991). Justice Dalveer Bhandari is currently the third seniormost judge at the Supreme Court and is due to retire on 30 September 2012. As Justice bhandari’s profile indicates, apart from his work at the Supreme Court, he has an LL.M. from Northwestern University, Chicago, and has attended several international law conferences and events. He is also the President of the India International Law Foundation. Personally, I’ve had the opportunity to meet Justice Bhandari a couple of times during his visits to National Law University, Jodhpur, and I’ve always been impressed by his knowledge of the international legal order and interest in international developments. 

Needless to say, these developments also offer an opportunity to reflect upon the Indian practice and procedure for nomination to the ICJ. For a critical perspective on Justice  Bhandari’s appointment, I urge you to see this comment by “C. I. Singh” on my previous post, arguing that someone with direct experience in international law and international dispute settlement, like P. S. Rao, would have been better suited for the position. Whereas the commentor seems to make a reasonable point with regards to P. S. Rao’s experience, I disagree in principle when he or she states that P.S. Rao “would have been the right candidate as he is far more qualified to go up against other ICJ judges and protect India’s interests.” This, in itself, should not be a criteria for nomination to the ICJ: the position of permanent judge at the ICJ should be above and beyond protecting national interests, and it’s not about going up “against” other ICJ judges.   

That internal debate aside, ILCurry certainly hopes that we get to see an Indian jurist at the ICJ soon!

Jindal Commences Arbitration Against Bolivia

First, the wishes — A very happy new year to all our readers!

Moving on, recently, there has been news about the Indian company “Jindal Steel and Power” (different management from JSW, though both are part of the same OP Jindal Group)  filing a claim against Bolivia at the ICC International Court of Arbitration. The dispute concerns a 2.1 billion USD mining project in Bolivia. Here’s a brief overview of the facts, and the parties’ main arguments, as reported by The Hindu Business Line:

In 2007, Jindal scored a 40-year contract to mine the southeastern Mutun site near the Brazilian border, one of the richest iron ore deposits in the world, with estimated total reserves of 40 billion tonnes, according to officials.

…

But Jindal and the government of Evo Morales are currently at loggerheads over investments. The Indian group had been due to pay $600 million over two years, but only paid about 2 per cent of that amount, prompting Bolivia to seize $18 million in guarantees.

Jindal, meanwhile, claims that Bolivia has not upheld its part of the contract, under which the Government must ensure the supply of natural gas to operate the mining site —— about four to six million cubic metres per day.

That’s the most information currently available in the public domain, and, considering that the arbitration seems to be under an investment contract as India and Bolivia do not have a BIT in force between them, I don’t expect any more transparency in the future.

To my knowledge, this is the second reported arbitration proceeding in recent times to have been initiated by an Indian claimant. Earlier, an Indian lawyer had brought a claim against the United Kingdom, under the India-U.K. BIT in 2006.  The dispute concerned a disagreement between the lawyer and the Corporation of London over rent to be paid for a property leased from the city. An arbitral tribunal was constituted, and court proceedings were also initiated by the Corporation of London, with the court refusing to stay its proceedings in light of the ongoing arbitration.

The fact that, of the handful of known investment arbitration proceedings concerning India (I am aware of only five in recent times), two proceedings have been commenced by Indian claimants could be an indication that, with increasing outward FDI from India, Indian investors are increasingly seeking more security and predictability in the investment climate abroad. This suggests that India’s BIT program may no longer only be useful for attracting FDI, but could also be used for protecting the interests of Indian’s in foreign host states. It would also explain the recent signing of a bilateral investment treaty between India and Nepal, as there is considerable Indian investment in Nepal. The times, they are certainly changin’. Of course, I could be reading too much between the lines, since little data is available in the public domain.

Hat tip to Yogesh Pai for the news report on the Bolivian arbitration.