Court Watch
cess skewed toward the nominating party, but it is clearly mitigated by the opponent’s identical right of selection. Any bias is thus counterbalanced, and im- partiality is ensured by selection of a neutral presi- dent by the Secretary-General who may likewise be disqualified for manifest lack of independence.
ICSID arbitration may fall short of the IBA Guide- lines. In the long run, however, repeated nomina- tions—especially those by Venezuela—will estab- lish either a pattern of reasoned neutrality on the part of a particular panelist, or they will build a re- cord that shows exactly what Article 57 demands: a manifest lack of independence.
* Submitted by Aaron Lukken
ECtHR Rules France Violated Citizen’s Access to Courts by Improperly Applying Doctrine of State Immunity
On June 29, 2011, the Grand Chamber of the European Court of Human Rights (ECtHR) issued its judgment in Farouk Sabeh El Leil v. France, a case that asked whether a diplomatic employee could bring a claim against his employer, or wheth- er such a suit would be dismissed because the employer has state immunity. The ECtHR ruled that France violated Article 6 § 1 of the European Convention on Human Rights (right to a fair hear- ing) by dismissing Sabeh El Leil’s claim against his Embassy employer on the basis of state immunity.
Sabeh El Leil, a French national, was an employee of the Kuwaiti Embassy in Paris for 30 years. He was terminated in 2000 when Embassy departments were restructured in an effort to cut administra- tive costs. Sabeh El Leil sought compensation for what he believed was an unfair dismissal by filing a claim with the local employment tribunal. Though initially awarded damages for his termination, the award was later set aside by the Paris Court of Ap- peals which found that the State of Kuwait enjoyed jurisdictional immunity from suit. Sabeh El Leil ap-
pealed, but the judgment of the Appeals Court was upheld by the Court of Cassation.
Bringing his claim to the ECtHR, Sabeh El Leil ar- gued that the application of the doctrine of state immunity was hindering his right of access to the court system in violation of Article 6 § 1 of the European Convention on Human Rights (“Con- vention”). French courts had dismissed his claims outright, thus depriving him of his Article 6 right to a fair hearing on the merits. The ECtHR agreed with Sabeh El Leil, holding that while states are afforded a margin of appreciation in these matters, “generally recognised rules of public international law on State immunity cannot in principle be re- garded as imposing a disproportionate restriction on the right of access to court as embodied in Article 6 § 1.” France did not properly balance the rights of states against the individual right to court access, and therefore owed Sabeh El Leil dam- ages for violating his Convention rights.
In its opinion, the ECtHR observed that the inter- national law principle of absolute state immunity, which aim to promote good relations between states through respect of the sovereignty of other states, has been eroded and weakened over time, and in particular with the adoption of the 2004 United Nations Convention on Jurisdictional Im- munities of States and their Property. This Conven- tion codifies customary international law, meaning that although France had not ratified it, France was bound by its contents. According to this Conven- tion, state immunity does not apply to employ- ment contracts between states and staff of their diplomatic missions abroad, except in a limited number of situations.
Though France argued that Sabeh El Leil per- formed job duties that involved him in the exercise of state power, the Court disagreed, finding that the evidence before it showed Sabeh El Leil as an accountant and nothing more. In particular, he was not a diplomatic or consular agent of Kuwait (ex- press exceptions to the Convention) had not been employed to officially act on behalf of Kuwait or
ILSA Quarterly » volume 20 » issue 1 » October 2011 7
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64