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New Principles of Sovereign Immunity from Enforcement in India: The Good, The Bad, And The Uncertain (Part I)
This post was written by Harshal Morwale, an India-qualified international arbitration lawyer working as an associate with a premier Indian law firm in New Delhi; LLM from the MIDS Geneva Program (2019-2020); alumnus of the Hague Academy of International Law.
Sovereign immunity from enforcement would undoubtedly be a topic of interest to all the commercial parties contracting with state or state entities. After all, an award is only worth something when you can enforce it. The topic received considerable attention in India recently, when the Delhi High Court (“DHC”) ruled on the question of immunity from enforcement in case of commercial transactions (KLA Const Tech v. Afghanistan Embassy). This ruling is noteworthy because India does not have a consolidated sovereign immunity law, and this ruling is one of the first attempts to examine immunity from enforcement.
This post is part I of the two-part blog post. This part examines the decision of the DHC and identifies issues emanating from it. The post also delves into the principles of international law of state immunity and deals with the relevance of diplomatic immunity in the current context. The second part (forthcoming) will explore the issue of consent to the arbitration being construed as a waiver of immunity from enforcement and deal with the problem of whether the state’s property can be attached to satisfy the commercial arbitral award against a diplomatic mission.
DHC: No Sovereign Immunity From Enforcement In Case Of Commercial Transactions
In the case of KLA Const Tech v. Afghanistan Embassy, KLA Const Technologies (“claimant”) and the Embassy of the Islamic Republic of Afghanistan in India (“respondent”) entered into a contract containing an arbitration clause for rehabilitation of the Afghanistan Embassy. During the course of the execution of works, a dispute arose between the parties. The claimant initiated the arbitration. An ex parte award was passed in favor of the claimant by the Sole Arbitrator. Since the respondent did not challenge the award, the claimant seeks its enforcement in India in line with Section 36(1) of the Arbitration & Conciliation Act 1996, whereby enforcement cannot be sought until the deadline to challenge the award has passed. In the enforcement proceedings, the DHC inter alia focused on immunity from enforcement of the arbitral award arising out of a commercial transaction.
The claimant argued that the respondent is not entitled to state immunity because, in its opinion, entering into an arbitration agreement constitutes “waiver of Sovereign Immunity.” Further, relying on Articles 10 and 19 of the United Nations Convention on Jurisdictional Immunities of States and Their Property (“UNCJIS”), the claimant argued that the states cannot claim immunity in case of commercial transactions and the UNCJIS expressly restricts a Foreign State from invoking sovereign immunity against post-judgment measures, such as attachment against the property of the State in case of international commercial arbitration.
After analyzing the claimant’s arguments and relevant case laws, the DHC reached the following decision:
- In a contract arising out of a commercial transaction, a foreign state cannot seek sovereign immunity to stall the enforcement of an arbitral award rendered against it.
- No separate consent for enforcement is necessary, and consent to arbitrate is sufficient to wave the immunity. The DHC opined that this ruling is in “consonance with the growing International Law principle of restrictive immunity.”
The DHC ordered the respondent to declare inter alia all its assets, bank accounts in India, etc., by a stipulated date. Since the respondent did not appear and did not make any declaration by that date, the DHC has granted time to the claimant to trace the attachable properties of the respondent.
The decision has been well received in the Indian legal community and has been lauded as a pro-arbitration decision as it promotes prompt enforcement of arbitral awards in India, regardless of the identity of the award-debtor. The decision is also one of the first attempts to define immunity from ‘enforcement’ in India. The existing law of sovereign immunity in India is limited to section 86 of the Indian Civil Procedure Code, which requires the permission of the Central Government in order to subject the sovereign state to civil proceedings in India. Therefore, the DHC’s decision is critical in the development of sovereign immunity jurisprudence in India.
Difference Between Jurisdictional Immunity And Enforcement Immunity Under The UNCJIS
It is worth noting that the DHC did not explicitly address the claimant’s argument regarding the UNCJIS. Regardless, it is submitted that the claimant’s argument relying on articles 10 and 19 of the UNCJIS is flimsy. This is particularly because the UNCJIS recognizes two different immunities – jurisdiction immunity and enforcement immunity. Article 10 of the UNCJIS, which provides for waiver of immunity in case of commercial transactions, is limited to immunity from jurisdiction and not from enforcement. Further, Article 20 of the UNCJIS clearly states that the state’s consent to be subjected to jurisdiction shall not imply consent to enforcement. As argued by the late Professor James Crawford, “waiver of immunity from jurisdiction does not per se entail waiver of immunity from execution.”
Notwithstanding the above, even the DHC itself refrained from appreciating the distinction between immunity from jurisdiction and immunity from enforcement. The distinction is critical not only under international law but also under domestic statutes like the English Sovereign Immunity Act (“UKSIA”). It is submitted that Indian jurisprudence, which lacks guidance on this issue, could have benefitted from a more intricate analysis featuring the rationale of different immunities, the standard of waivers, as well as the relevance of Article 20 of UNCJIS.
Curious Framing Of The Question By The DHC
In the current case, the DHC framed the question of sovereign immunity from enforcement as follows: Whether a Foreign State can claim Sovereign Immunity against enforcement of arbitral award arising out of a commercial transaction? On the face of it, the DHC decided a broad point that the award is enforceable as long as the underlying transaction is commercial. The real struggle for the claimants would be to determine and define which property would be immune from enforcement and which wouldn’t.
The framing of the issue is interesting because the sovereign state immunity from enforcement has generally been perceived as a material issue rather than a personal issue. In other words, the question of state immunity from enforcement has been framed as ‘what subject matter can be attached’ and not ‘whether a particular debtor can claim it in a sovereign capacity’. In one of the case laws analyzed by the DHC (Birch Shipping Corp. v. The Embassy of the United Republic of Tanzania), the defendant had argued that under the terms of the US Foreign Sovereign Immunities Act, its “property” was “immune from the attachment.” Further, in the operative part of the judgment, the US District Court stated, “the property at issue here is not immune from attachment.” Unlike the DHC’s approach, the question of immunity from enforcement in the Birch Shipping case was argued and ruled upon as a material issue rather than a personal one.
While the decision of the DHC could have a far-reaching impact, there is a degree of uncertainty around the decision. The DHC ruled that as long as the transaction subject to arbitration is commercial, the award is enforceable. There remains uncertainty on whether this ruling means that all properties of the sovereign state can be attached when the transaction is commercial. Would this also mean diplomatic property could be attached? The DHC still has the opportunity to clarify this as the specific properties of the respondent for the attachment are yet to be determined, and the claimant has been granted time to identify the attachable properties.
Diplomatic Immunity or Sovereign Immunity: Which One Would Apply?
While state immunity and diplomatic immunity both provide protection against proceedings and enforcements in the foreign court or forum, the subjects of both immunities are different. While sovereign immunity aims to protect the sovereign states and their instrumentalities, diplomatic immunity specifically covers the diplomatic missions of the foreign states. The law and state practice on sovereign immunity are not uniform. On the other hand, the law of diplomatic immunity has been codified by the Vienna Convention on Diplomatic Relations (“VCDR”). Unlike the UNCJIS, the VCDR is in force and has been adopted by over 190 states, including India and Afghanistan.
Since the party to the contract, the arbitration, and the enforcement proceedings in the current case is an embassy, which is independently protected by the diplomatic immunity, the decision of the DHC could have featured analysis on the diplomatic immunity in addition to the state immunity. Like the UNCJIS, the VCDR recognizes the distinction between jurisdictional and enforcement immunities. Under Article 32(4) of the VCDR, the waiver from jurisdictional immunity does not imply consent to enforcement, for which a separate waiver shall be necessary.
Additionally, the DHC had an opportunity to objectively determine whether the act was sovereign or diplomatic. In Re P (Diplomatic Immunity: Jurisdiction), the English Court undertook an objective characterization of the entity’s actions to determine whether they were sovereign or diplomatic. The characterization is critical because it determines the kind of immunity the respondent is subject to.
In the current case, the contract for works entered into by the embassy appears to be an act undertaken in a diplomatic capacity. Hence, arguably, the primary analysis of the DHC should have revolved around diplomatic immunity. It is not to argue that the conclusion of the DHC would have been different if the focus was on diplomatic immunity. However, the analysis of diplomatic immunity, either independently or together with the sovereign immunity, would have substantially bolstered the significance of the decision considering that the interplay between sovereign and diplomatic immunities under Indian law deserves more clarity.
One might argue that perhaps the DHC did not deal with diplomatic immunity because it was raised neither by the claimant nor by the non-participating respondent. This raises the question – whether the courts must raise the issue of immunity proprio motu? The position of law on this is not entirely clear. While section 1(2) of the UKSIA prescribes a duty of the Court to raise the question of immunity proprio motu, the ICJ specifically rejected this approach in the Case Concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France) (para 196). Both of these approaches, however, relate to sovereign immunity, and there lacks clarity on the issue in the context of diplomatic immunity.
Conclusion
As noted above, despite being one of the first Indian decisions to deal with state immunity from an international law perspective, the decision leaves several questions open, such as the determination of attachable properties and the relevance of diplomatic immunity in the current context. It remains to be seen what approach the DHC takes to resolve some of these issues in the upcoming hearings.
The next part of the post explores the issue of consent to the arbitration being construed as a waiver of immunity from enforcement. The next part also deals with the problem – whether the state’s property can be attached to satisfy the commercial arbitral award against a diplomatic mission.
Forum Selection Clauses and Cruise Ship Contracts
On August 19, 2021, the U.S. Court of Appeals for the Eleventh Circuit issued its latest decision on foreign forum selection clauses in cruise ship contracts. The case was Turner v. Costa Crociere S.P.A. The plaintiff was an American cruise ship passenger, Paul Turner, who brought a class action in federal district court in Florida alleging that the cruise line’s “negligence contributed to an outbreak of COVID-19 aboard the Costa Luminosa during his transatlantic voyage beginning on March 5, 2020.”
The cruise line moved to dismiss the case on the basis of a forum selection clause in the ticket mandating that all disputes be resolved by a court in Genoa, Italy. The contract also contained a choice-of-law clause selecting Italian law. By way of background, it is important to note that (1) the parent company for the cruise line was headquartered in Italy, (2) its operating subsidiary was headquartered in Florida, (3) the cruise was to begin in Fort Lauderdale, Florida, and (4) the cruise was to terminate in the Canary Islands.
The Eleventh Circuit never reached the merits of the plaintiffs’ claims. Instead, it sided with the cruise line, enforced the Italian forum selection clause, and dismissed the case on the basis of forum non conveniens. A critique of the Eleventh Circuit’s reasoning in Turner is set forth below.
Years ago, the U.S. Congress enacted a law imposing limits on the ability of cruise lines to dictate terms to their passengers. 46 U.S.C. § 30509 provides in relevant part:
The owner . . . of a vessel transporting passengers . . . between a port in the United States and a port in a foreign country, may not include in a . . . contract a provision limiting . . . the liability of the owner . . . for personal injury or death caused by the negligence or fault of the owner or the owner’s employees or agents . . . . A provision described in paragraph (1) is void.
Boiled down to its essence, the statute provides that any provision in a cruise ship contract that caps the damages in a personal injury case is void. If the cruise ship were to write an express provision into its passenger contracts capping the damages recoverable by plaintiffs such as Paul Turner at $500,000, that provision would be void as contrary to U.S. public policy.
The cruise lines are sharp enough, however, to know not to write express limitations directly into their contracts. Instead, they have sought to achieve the same end via a choice-of-law clause. The contract in Turner had a choice-of-law clause selecting Italian law. Italy is a party to an international treaty known as the Athens Convention. The Athens Convention, which is part of Italian law, caps the liability of cruise lines at roughly $568,000 in personal injury cases. If a U.S. court were to give effect to the Italian choice-of-law clause and apply Italian law on these facts, therefore, it would be required to apply the liability cap set forth in the Athens Convention. It seems highly unlikely that any U.S. court would enforce an Italian choice-of-law clause on these facts given the language in Section 30509.
Enter the forum selection clause. If the forum selection clause is enforced, then the case must be brought before an Italian court. An Italian court is likely to enforce an Italian choice-of-law clause and apply the Athens Convention. If the Athens Convention is applied, the plaintiff’s damages will be capped at roughly $568,000. To enforce the Italian forum selection clause, therefore, is to take the first step down a path that will ultimately result in the imposition of liability caps in contravention of Section 30509. The question at hand, therefore, is whether the Eleventh Circuit was correct to enforce the forum selection clause knowing that this would be the result.
While the court clearly believed that it reached the right outcome, its analysis leaves much to be desired. In support of its decision, the court offered the following reasoning:
[B]oth we and the Supreme Court have directly rejected the proposition that a routine cruise ship forum selection clause is a limitation on liability that contravenes § 30509(a), even when it points to a forum that is inconvenient for the plaintiff. Shute, 499 U.S. at 596–97 (“[R]espondents cite no authority for their contention that Congress’ intent in enacting § [30509(a)] was to avoid having a plaintiff travel to a distant forum in order to litigate. The legislative history of § [30509(a)] suggests instead that this provision was enacted in response to passenger-ticket conditions purporting to limit the shipowner’s liability for negligence or to remove the issue of liability from the scrutiny of any court by means of a clause providing that ‘the question of liability and the measure of damages shall be determined by arbitration.’ There was no prohibition of a forum-selection clause.”)
The problem with this argument is that there was no evidence in Shute—none—suggesting that the enforcement of the forum selection clause in that case would lead to the imposition of a formal liability cap. Indeed, the very next sentence in the passage from Shute quoted above states that “[b]ecause the clause before us . . . does not purport to limit petitioner’s liability for negligence, it does not violate [Section 30509].” This language suggests that if enforcement of a forum selection clause would operate to limit the cruise line’s liability for negligence, it would not be enforceable. The Eleventh Circuit’s decision makes no mention of this language.
The Turner court also cites to a prior Eleventh Circuit decision, Estate of Myhra v. Royal Caribbean Cruises, for the proposition that “46 U.S.C. § 30509(a) does not bar a ship owner from including a forum selection clause in a passage contract, even if the chosen forum might apply substantive law that would impose a limitation on liability.” I explain the many, many problems with the Eleventh Circuit’s decision in Myhra here. At a minimum, however, the Myhra decision is inconsistent with the Supreme Court’s admonition in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc that “in the event the choice-of-forum and choice-of-law clauses operated in tandem as a prospective waiver of a party’s right to pursue statutory remedies . . . we would have little hesitation in condemning the agreement as against public policy.” There is no serious question that the cruise line is here attempting to use an Italian choice-of-law clause and an Italian forum selection clause “in tandem” to deprive the plaintiffs in Turner of their statutory right to be free of a damages cap. This attempt would seem to be foreclosed by the language in Mitsubishi. The Eleventh Circuit does not, however, cite Mitsubishi in its decision.
At the end of the day, the question before the Eleventh Circuit in Turner was whether a cruise company may deprive a U.S. passenger of rights guaranteed by a federal statute by writing an Italian choice-of-law clause and an Italian forum selection clause into a contract of adhesion. The Eleventh Circuit concluded the answer is yes. I have my doubts.
EPO and EAPO Regulations: A new reform of the Luxembourgish Code of Civil Procedure
Carlos Santaló Goris, Researcher at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law and Ph.D. candidate at the University of Luxembourg, offers a summary and a compelling analysis of the Luxemburgish domestic legislation regarding the EPO and EAPO Regulations.
On 23 July 2021, a new legislative reform of the Luxembourgish Code of Civil Procedure (“NCPC”), entered into force amending, among other articles, those concerning Regulation No 1896/2006, establishing a European Payment Order (“EPO Regulation”) and Regulation No 655/2014, establishing a European Account Preservation Order (“EAPO Regulation”).
The EPO and the EAPO Regulations embody, respectively, the first and third European uniform civil procedures. While the EPO, as its name indicates, is a payment order, the EAPO is a provisional measure that allows temporary freezing of the funds in the debtor’s bank accounts. Although they are often referred to as uniform procedures, both leave numerous elements to the discretion of the Member States’ national laws.
With this strong reliance on the Member State’s national laws, it is not surprising that most Member States have enacted domestic legislation to embed these Regulations within their national civil procedural systems. Luxembourg is one of them. The EPO Regulation brought two amendments to the NCPC. The first one was introduced in 2009, four months after the EPO Regulation entered into force. In broad terms, the 2009 reform integrated the EPO procedure in the Luxembourgish civil judicial system, identifying the authorities involved in its application. The second legislative amendment stemmed from the 2015 reform of Regulation No 861/2007, establishing a European Small Claims Procedure (“ESCP Regulation”) and of the EPO Regulation. Among other changes, this reform introduced the possibility, once the debtor opposes the EPO, of continuing the procedure “in accordance with the rules of the European Small Claims Procedure” (Article 17(1)(a) EPO Regulation). The change brought to the NCPC pursued the objective to facilitate the swift conversion from an EPO into an ESCP (Articles 49(5) and 49(8) NCPC).
Before the reform of 23 July 2021, the Luxembourgish legislator had already twice modified the NCPC to incorporate the EAPO Regulation. The first EAPO implementing act was approved in 2017 (Article 685(5) NCPC). It mainly served to identify the domestic authorities involved in the EAPO procedure: from the competent courts to issue the EAPO to the competent authority to search for information about the debtor’s bank accounts (Article 14 EAPO Regulation). The second reform, introduced in 2018, aimed at facilitating the transition of the EAPO’s temporary attachment of accounts into an enforcement measure (Article 718(1) NCPC). In brief, it allowed the transfer of the debtor’s funds attached by the EAPO into the creditor’s account.
The 2021 legislative reform of the NCPC was not introduced specifically bearing in mind the EPO and the EAPO Regulations: rather, it was meant as a general update of the Luxembourgish civil procedural system. Among the several changes it introduced, it increased the value of the claim that may be brought before the Justice of the Peace (Justice de paix). Before the reform, the Justice of the Peace could only be seized for EPOs and EAPOs in claims up to 10.000 euros, while District Courts (Tribunal d’arrondissement) were competent for any claims above that amount. As a result of the reform, the Luxembourgish Justice of the Peace will now be competent to issue EPOs and EAPOs for claims up to 15.000 euros in value.
News
Revue Critique de droit international privé – issue 2024/1
Written by Hadrien Pauchard (assistant researcher at Sciences Po Law School)
The first issue of the Revue Critique de droit international privé of 2024 was released a few months ago. It contains 2 articles and several case notes. Once again, the doctrinal part has been made available in English on the editor’s website (for registered users and institutions).
The opening article is authored by Dr. Nicolas Nord (Université de Strasbourg) and tackles the crucial yet often overlooked issue of L’officier d’état civil et le droit étranger. Analyse critique et prospective d’une défaillance française (Civil registrars and foreign law. A critical and prospective analysis of a French failure). Its abstract reads as follows:
In international situations, French civil registrars may frequently be confronted with the application of foreign law. However, by virtue of the General Instruction on Civil Status and other administrative texts, they are under no obligation to establish the content of foreign law and can be satisfied with the sole elements reported by requesting private individuals. This solution certainly has the advantage of simplifying the task of civil registrars, who are not legal professionals. However, it leads to inconsistencies within the French legal system. The article therefore recommends reversing the principle and creating a duty for the French authority in this area. However, the burden should be lightened by facilitating access to the content of foreign law. Concrete proposals are put forward to this end, both internally and through international cooperation.
In the second article, Prof. David Sindres (Université d’Angers) addresses the complex question of the scope of jurisdiction clauses, through the critical discussion of recent case law on whether Le « destinataire réel » des marchandises peut-il se voir opposer la clause attributive de compétence convenue entre le chargeur et le transporteur maritime ? (Can the “actual addressee” of the goods be submitted to the jurisdiction clause agreed between the shipper and the maritime carrier?). The abstract reads as follows:
In two notable decisions, the French Cour de cassation has ruled that the case law of the Court of Justice Tilly Russ/Coreck Maritime is strictly confined to the third-party bearer of a bill of lading or sea waybill, and cannot be applied to the “actual addressee” of the goods. Thus, unlike the third party bearer, the “actual addressee” cannot be submitted to the clause agreed between the shipper and the maritime carrier and inserted in a bill of lading or a sea waybill, even if he has succeeded to the rights and obligations of the shipper under the applicable national law, or has given his consent to the clause under the conditions laid down in article 25 of the Brussels I bis regulation. The distinction thus made by the Cour de cassation with regard to the enforceability against third parties of jurisdiction clauses agreed between shippers and carriers cannot be easily justified. Indeed, it is in no way required by the Tilly Russ and Coreck Maritime rulings and is even difficult to reconcile with them. Furthermore, insofar as it may lead to the non-application of a jurisdiction clause to an actual addressee who has nevertheless consented to it under the conditions of article 25 of the Brussels I bis regulation, it fails to meet the requirements of this text.
The full table of contents is available here.
The second issue of 2024 has been released and will be presented shortly on this blog.
Previous issues of the Revue Critique (from 2010 to 2022) are available on Cairn.
Call for abstracts: TEGL Conference Re-imagining Law for Sustainable Globalization: Navigating Uncertainty in a Globalized Era – 16-17 December 2024
A call for abstracts has been launched for the TEGL (Transformative Effects of Globalisation in Law) Conference entitled “Re-imagining Law for Sustainable Globalization: Navigating Uncertainty in a Globalized Era”, which will take place on 16-17 December 2024. For more information, click here.
Interested persons may submit a paper proposal abstract, a panel proposal abstract or an abstract to participate in the PhD session. Abstracts should be no more than 500 words. A short bio (of max. 200 words) should also be included. Both documents should be submitted by 15 September 2024 by using the following link.
As stated on its website, the topics are the following:
The conference focuses on the four TEGL research streams: 1) Constitutionalism and Subjects of Globalization; 2) Economic Law and Globalization’s Infrastructures; 3) Courts, Science and Legitimacy; 4) National and Regional Institutions as Global Actors. It, therefore, welcomes submissions on a wide variety of topics. For reference, specific questions include but are not limited to:
- How does law produce socio-economic inequalities in the context of uncertainty and across various areas?
- How can existing categories of law be rethought in different areas to reduce these inequalities and the resulting sense of uncertainty?
- How does law constrain or regulate uncertainties within global value chains, exploring its role in shaping and responding to crises in this interconnected world?
- How does law guarantee or contribute to uncertainty in international economic exchanges, encompassing trade and investment?
- How effective are legal mechanisms in mitigating uncertainties arising from the current climate crisis? Discuss how the law can contribute to sustainable solutions.
- What is the role of law in empowering or disempowering individuals facing socio-economic inequalities and exploring potential legal reforms to address disparities?
- How does the law address humanitarian concerns during the conflict, considering its effectiveness and proposing innovative solutions?
- What role do principles play in risk regulation/environmental/climate change litigation (before international/EU/national courts)?
- What role do experts play in decision-making and courts, and what role do NGOs/public interest litigation play?
- What is the role of science and its legitimacy in courts?
- How does uncertainty affect legal coherence and migration governance, and can uncertainty be considered a ‘governance strategy?’
- How to regulate and control in times of uncertainty.
- Proportionality in times of uncertainty.
- What role should law play in navigating uncertainty in the digital age, including in platform regulation (e.g., the political economy of platforms, AI utilization in content moderation, design of platform interfaces, access to datasets), automated decision-making, digitization of lawmaking and the use of AI in courtrooms (Robot judge, natural language processing and automation in law).
This event is organized within and supported by the Sector Plan TEGL and the Globalization and Law Network of Maastricht University. For inquiries, please contact glawnet-fdr@maastrichtuniversity.nl.
TEGL research project is a collaboration between the law faculties of Maastricht University, Open Universiteit NL, Tilburg University and the University of Amsterdam. More information is available here.
The Hague Academy of International Law Centre for Studies and Research 2025: “Artificial Intelligence and International Law”
As recently highlighted by contributions on this blog, new technologies have a significant impact on the development of the law. Hence, the Curatorium of the Hague Academy of International Law has chosen for the the 2025 edition of the Centre for Studies and Research (18 August – 5 September 2025) to focus on the emerging topic of “Artificial Intelligence and International Law“. This year, the selected researchers will be work under the guidance of the Directors of Research, Marion Ho-Dac (Université d’Artois) for the French-speaking section as well as Marco Roscini (University of Westminster) for the English-speaking section.
Interested candidates must be researchers and preferably hold an advanced degree (PhD or Doctorate degree). Registration for the 2025 Centre is open from 1 July to 15 October 2024 via the institution’s own Online Registration Form.
The Academy describes the scope of its 2025 Programme as follows (emphasis added to highlight passages of specific interest to col.net readers):
The increasing integration of digital technologies based on Artificial Intelligence (AI) into human activities requires a thorough re-examination of most normative frameworks in the international order. Advanced AI systems operate with ever greater autonomy, generating content, recommendations, predictions and decisions for States, organisations and individuals. AI thus offers enormous opportunities for humankind by facilitating (or even making possible) the performance of certain tasks. At the same time, however, it presents significant risks related, for instance, to potential biases and accountability gaps. In this context, is (public and private) international law capable of addressing the profound changes that the contemporary rise of AI is bringing?
The Centre of Studies and Research 2025 of The Hague Academy of International Law aims to analyse these challenges and opportunities through the lenses of international law in a holistic manner by focusing on three different aspects: AI’s impact on the sources and institutions of the international legal order, AI’s impact on special regimes of international law, and AI’s role in addressing specific contemporary problems.
Selected researchers will be called to work on the following topics under the guidance of the Directors of Research:
- AI and International/Regional Organisations
- AI and International/Regional Courts and Tribunals
- AI and the Making of (Public/Private) International Law
- AI and the Practice of (Public/Private) International Law
- International Governance of AI including Technical Standardisation
- AI and the Risk-based Approach
- AI and the International Law of Armed Conflict
- AI and International Environmental Law
- AI and Conflict of Laws
- AI and International Human Rights Law
- AI and the Law of State Responsibility
- AI and International Criminal Law
- AI and International Business Law
- AI and the Maintenance of International Peace and Security
- Lethal Autonomous Weapons and International Law
- AI and the North-South Divide
- AI and Cybersecurity
- AI and Privacy
- AI and Humanitarian Action
- AI and the Cross-border Movement of Persons
- AI and (Mis)Information
For further information on the HAIL 2025 Centre and the Academy in general, please consult the HAIL Homepage or refer to the attached PDF Programme.