Philippe Sands QC, author of the recently published The Ratline: Love, Lies and Justice on the Trail of a Nazi Fugitive, in conversation with colleagues Amanda Pinto QC, Chair of the Bar Council of England and Wales and Sir Geoffrey Nice QC, who was prosecutor at the International Criminal Tribunal for the Former Yugoslavia.
The Ratline follows the story of Otto Wächter, who as Governor of Galicia (straddling the modern day border of Poland and Ukraine), presided over an authority on whose territory hundreds of thousands of Jews and Poles were killed. Amongst those killed were the family of the author’s grandfather. Remarkably, research for this book and its predecessor East West Street was in part facilitated by Otto Wächter’s son, Horst Arthur Wächter, who made available to Philippe a unique collection of personal family papers, photographs and diaries. Philippe is intrigued by the determination of Horst to believe that his father was a decent man, notwithstanding his acceptance of his father’s connection to such appalling events.
Philippe contemplated a similar question when hearing Aung San Suu Kyi give evidence seeking to defend Myanmar’s military actions from allegations of genocide against the Rohingya people, at the International Court of Justice in December 2019. Following the hearing the International Court of Justice ordered Myanmar to take immediate steps to protect the Rohingya people and to prevent their genocide.
What are the factors that cause seemingly decent people not to recognise what everyone else sees?
Courts and tribunals everywhere have been faced with the same problem in the Covid-19 pandemic: how to deliver justice during lock-down. Across the continent, in-person hearings have been giving way to virtual hearings, but this transition has been far from uniform. Following more than six months of different experience and experimentation, we now have much to learn from one another about what different courts and tribunals have been doing, what has worked and what has not. In this session, speakers from Ireland, the UK and France will share their views about what has been working or not working in both the national courts and international arbitration proceedings, what we have gained from virtual hearings and what we are at risk of losing if there is a long-term transition to virtual hearings.
This discussion will aim at the heart of the debate over the relationship between the CJEU and the courts of Member States. What happens when there is a genuine perception on the part of a Member State court that the CJEU has exceeded the terms of the Treaties? Is the resultant decision nevertheless binding? How would that fit in with the reciprocal obligations of sincere cooperation of the CJEU and Member State courts and with the rule of law as set out in the Treaties? As we know, in its European Central Bank decision of March 2020, the Bundesverfaßungsgericht had to grapple with these questions. True to its form in the earlier case law in relation to the importance of protecting fundamental rights, the German court appeared to feel unable to grant the CJEU the last word because of the risk of abdicating its constitutional role in safeguarding the rule of law. Is that a failure to respect the EU law principle of supremacy, as some have perceived it, or is it a good example of how the rich tapestry of judicial instances in Europe are intended to interact under the Treaties?
In the light of the agreement of Hague 2019 and the apparent intent of the EU to accede to Hague 2019, what arrangements should a non-EU state make if it wishes to optimise the system for the reciprocal enforcement of judgments between itself and the EU? The Brussels–Lugano regime clearly has strengths and we will hear from EU experts on the attractions of the existing EU regime on jurisdiction and judgments from both the perspective of businesses engaged in cross border trade and from a legal perspective, distinguishing for this purpose Brussels recast and Lugano. Hague 2005 and Hague 2019 will be compared and contrasted with the Brussels–Lugano regime and views will be expressed on the options open to a third state faced with a potential choice between the Hague regime or the Lugano Convention in its present form.
Trevor Hartley – Session 4 Outline
The standing of BITs within Europe has been a controversial topic for some time. This session will explore the future of these agreements in an EU and international law perspective, including what is next after the CJEU’s judgment in Case C-284/16 Achmea and the legal effect of the treaty for the termination of intra-EU BITs signed by 23 Member States on 5 May 2020. It will also address how these developments may affect investor-State arbitration under other international agreements, including the Energy Charter Treaty, and what impact Brexit could have in this context.
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