On February 3, 2012, the International Court of Justice in The Hague delivered its judgment in the case on Jurisdictional Immunities of the State, Germany v. Italy: Greece intervening. The Court finds that Italy violated its obligation to respect Germany's immunity by permitting civil claims based on violations of international humanitarian law committed by the German Reich between 1943 and 1945 to be brought against Germany.

The key issue in the dispute was not whether those acts were illegal but whether the Italian courts had to accord Germany immunity in the proceedings over claims for compensation. Whether immunity might apply in criminal proceedings against an official of the State was not an issue in this case because the matter involved solely civil claims.

The rules of sovereign immunity are determined to decide if the courts of one state may exercise jurisdiction in respect of another state; they are not conditioned on the question whether the conduct at issue was lawful or unlawful. The Court concludes that, even on the assumption that the proceedings in the Italian courts involved violations of ius cogens, the applicability of the customary international law of sovereign immunity was not affected.

Further, a claim of immunity cannot depend on the existence of effective alternative means of securing redress. Customary international law continues to require that a state be accorded immunity in proceedings for torts supposedly committed on the territory of another state in the course of an armed conflict or if the state is accused of serious violations of international human rights. Thus, the rule of tort exception cannot justify a denial of state immunity.

In addition, the Court finds that Italy breached its obligations by declaring enforceable in Italy civil judgments rendered by Greek courts for violations of international humanitarian law committed in Greece by the German Reich during the Distomo massacre. -- Christina Theocharopoulou, law student, Heidelberg University Law School, Heidelberg.

Major renovation and construction projects always promise surprises and pitfalls. Embassy renovations, currently en vogue in Washington, can be particularly tricky. Suitable interim spaces are not easy to locate. Landlords require extensive waivers of immunity.

One of the most beautiful embassy buildings on Massachusetts Avenue, that of Cameroon, is currently undergoing renovation. The embassy found interim facilities on Wisconsin Avenue. The lease expired recently but the renovation is incomplete. Meanwhile, ownership in the interim premises changed.

Harvard Trustees, the new owner, decided to evict the embassy. The complaint in Trustees for Harvard University v. Embassy of the Republic of Cameroon filed in the United States District Court for the District of Columbia is available online, published by the Legal Times. Huffington Post has the story. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

On January 17, 2012, the United States Court of Appeals for the District of Columbia Circuit reversed the award issued by an arbitral panel in 2007 in the case of Republic of Argentina v. BG Group PLC, docket number 11-7021. It determined that BG Group PLC violated the terms of the governing Bilateral Investment Treaty whose Article 8(2) states that disputes between an investor under the treaty and the host state that

have not been amicably settled shall be submitted, at the request of one of the parties to the dispute, to the decision of the competent tribunal of the Contracting Party in whose territory the investment was made.

Under the treaty, a dispute may be submitted to international arbitration if eighteen months have passed from when the dispute was raised and a final decision has not been made or if the final decision has been made but the parties remain in dispute.

In this case, BG Group, an investor in Argentinian gas companies, failed to file a claim in Argentinian courts and instead immediately invoked the arbitration clause. Their rationale was based on their own assessment that it would take six years to resolve their claim in the Argentinian courts, and that Article 8(2) of the Treaty was senseless. The arbital panel allowed BG Group to bring its claim because it was an in investor in the Argentinian gas companies which had greatly decreased in value as a result of the collapse of the Argentinian economy and a subsequently enacted emergency law. Based on this, the panel found that Argentina had violated Article 2 of the Treaty and had failed to provide fair treatment to investments. The panel compared two trades of BG Group's shares, one before the emergency law was enacted, and one after, and assessed the damages caused by emergency law to be $185,285,485.85. Damages were awarded to BG Group.

The Court of Appeals found that the district court erred in the enforcement proceeding by failing to determine whether there was unmistakable evidence of the intention for the arbitrator to decide arbitrability after BG Group did not attempt to resolve its dispute in an Argentinian court. The arbitrator would only be able to decide on arbitrability after the proper procedure under the treaty was followed and eighteen months had passed since filing a claim with an Argentinian court. The court considered BG Group's approach a blatant violation of the treaty and vacated the award:

… the arbitral panel rendered a decision wholly based on outside legal sources and without regard to the contracting parties' agreement establishing a precondition to arbitration.

Melanie Hardcastle, Legal Assistant, Berliner, Corcoran & Rowe, LLP, Washington, D.C.

CK - Washington.