Since the Summer of 2010, events have not taken a positive turn, and hopes of finding an easy resolution to the problem of rapidly increasing public debt in several Eurozone countries have deteriorated.   It is now clear that the Eurozone as initially constituted is a failure, and will need to be revamped and remade in a new, and largely unrecognizable, form.  Whether the future of the euro and Eurozone lies in radical integration or in disintegration at this point remains uncertain.

Some of the basic ideas in the original blog post have been fleshed out in an article that I published in Volume 17 of the Columbia Journal of European Law, entitled Implications of European Disintegration for International Law.  The Article explains the structural problems with the euro system which make the current crisis so intractable, and also offers some lessons for international law more generally.  From the abstract:

The European debt crisis that started in 2009 has revealed underlying structural problems in the European Monetary Union, threatening the viability of the common currency in its current form. An unraveling of monetary coordination in Europe would mark a significant event of disintegration, in the face of a decades-long trend of integration that was commonly considered an inevitable and self-sustaining process.

This Article argues that even a reasonable possibility of disintegration of this magnitude upsets previous theorizing about European integration which over-emphasized the EU’s “supranational” character.

More generally, disintegration poses serious problems for international law scholarship across the ideological spectrum, much of which has organized itself around the historically contingent trend of integration as if it were an a-historical given. The debt crises reveals that use of Europe by both “Skeptical” and “Cosmopolitan” international law scholars is largely an opportunistic rhetorical strategy that conceals fundamental weaknesses of both viewpoints in their debate over the limits and promise of international legalization and cooperation.

Surrogate motherhood has been prohibited in France since 1991, under a decision by the Cour de cassation (France’s highest court), (Cass. Ass. plén., 31/05/1991). This prohibition was confirmed in the bioethics law of 1994, and is codified in article 16-7 of French Civil Code (“Civil Code”). Article 16-9 of the Civil Code makes this a prohibition of public order (In France, prohibitions of ordre public or public order are mandatory rules created unilaterally by the state to protect fundamental values of the society, and from which parties have no freedom to derogate. A foreign law applicable under a conflict of laws analysis would be evicted if contrary to a mandatory rule). A surrogacy contract is null and void, and violations are punished by civil and criminal sanctions (civil sanctions are described in articles 311-25, 325 and 332-1 of the Civil Code and criminal sanctions at articles 227-12 §3 and 227-13 of the Penal Code).

The prohibition is justified by different moral and ethical concerns: to prevent children from becoming commodities traded as merchandise between infertile couples and surrogate mothers; to protect the interest of children who are psychologically at risk in such transaction; and to prevent the exploitation of surrogate mothers who must relinquish parental rights to the child after giving birth. Surrogate mothers are usually from lower economic strata and are economically exploited in this transaction. Statistically there is an inherent social division in this practice. This is evinced by the fact that most surrogacy contracts require compensation because very few women would bear someone else’s child for free. This social division is not new – surrogate mothers were slaves in the days of the Bible and Ancient Rome.

Recent decisions in French courts illustrate the complexity of enforcing this prohibition in a globalized world, where other states permit surrogacy contracts, and infertile parents can go abroad to find surrogate mothers. (See e.g CA 1^e, Section C, 26/02/2009, CA, pôle 1, Ch. 1, 18/03/2010; Cass. A.P, 31/05 /1991; Cass. Civ. 1^e, 9/12/2003)  In a December 2008 decision, the Cour de cassation (Cass. Civ. 1^e, 17/12/2008) annulled the transcript of the birth certificate of two children because their legal parents had enlisted the services of a surrogate mother in California. The Court so ruled even though the children had obtained their birth certificates in California and were U.S citizens. The French high court confirmed this annulment, holding that French citizens cannot go abroad to circumvent French surrogacy laws. Thus, French judges have held that a foreign document (the Californian birth certificate in this case) shall not be given the exequatur if it is against French international public order or if it is fraudulent (in France an exequatur is a judgment by which a tribunal states that a decision issued by a foreign tribunal should be executed in France).

The high court’s decision jeopardizes the most important objective that the prohibition against surrogate motherhood was designed to achieve: protecting the superior interest of the child. Pursuant to the Cour de cassation’s ruling, the child lacks legal status in France because he is neither recognized as the child of the French couple nor as the child of the surrogate mother. Furthermore, this decision absurdly results in having a child’s filiation recognized in one country but not in France, thus depriving him of the continuity of his legal status. France unjustly denies legal status to children for the mistakes of their parents. Rather it is their parents’ actions that deserve legal sanction.

France must adopt new legislation to avoid creating a class of children without status. Different options were contemplated: to permit the adoption by the biological father and his wife; to establish a filiation with the biological father and delegating parental authority to the intended mother; or to legalize but strictly regulate surrogacy (e.g: no remuneration and strict eligibility requirements for couples and surrogate mothers). French public opinion mostly favored the legalization of surrogacy and supported greater autonomy from state interference in matters of marriage, family and procreation. The French Senate also favored regulated authorization of surrogate motherhood. The Council of State (Conseil d’Etat) supported the prohibition but proposed accommodations for children born abroad in order to preserve their legal status in France.

Despite the broad support for reform and legalization, the prohibition was nevertheless reaffirmed during the revision of bioethics laws in 2009-2010 due to a wide consensus within the committee in charge of revising the law, finding that surrogacy is incompatible with French moral principles and human dignity. Using examples from countries that have legalized surrogacy, the committee argued that legalization would have negative effects in France. Among other effects, legalization would create more cases of surrogacy and would not stop dangerous clandestine contracts (contracts not complying with certain legal rules such as the absence of compensation, or lacking proper medical oversight). Legalization would also create bias in favor of one party over the other.  For example, in the United Kingdom the law favors surrogate mothers and creates insecurity for adopting couples by allowing surrogate mothers to keep the child after birth. In Greece, however, once the surrogate contract is signed, the surrogate mother is left with no rights as the adopting couple becomes the sole legally recognized parents. The committee also rejected the possibility of allowing ex-post adoption because it validates a system in which children are programmed to be abandoned at birth. Surrogacy is radically different from adoption because adoption is an ex-post remedy for existing situations of abandonment, whereas surrogacy would create and incentivize abandonment ex-ante.

Since 2010, French courts have consistently followed this line, denying both adoption and recognition of children born abroad from surrogate mothers. Their decisions rest on the enforcement of French public order. Because surrogate motherhood is against fundamental ethical principles, this practice should not only be prohibited in France but children born abroad from surrogate mothers should also not be recognized with legal status. From the courts’ point of view, the fact that other countries permit surrogacy should not justify the adoption of a practice contrary to French public order. Otherwise it would give rise to endless claims that France should adopt other condemnable foreign practices like polygamy and repudiation on the pretext that it is allowed abroad. On the contrary, France should have stricter rules to protect the coherence of its legal system and public policy. The courts are also concerned with the efficiency of the prohibition. An effective prohibition is one that deters surrogacy altogether. According to the judges, recognizing foreign surrogacy would incentivize infertile couples to sidestep French law by going abroad for surrogacy services and returning afterwards with the child. Moreover, recognition would ultimately lead to legalization because it would not be sustainable to simultaneously prohibit surrogacy in France while recognizing the legality of foreign surrogate contracts. Finally, French courts point out that the child’s best interest is intact because he still has a legal status in the foreign country where the surrogacy contract was formed. But this reasoning has not resolved the issue.

The 2008 case came back before the Cour de cassation in April 2011 (Cass. Civ. 1e, 6/04/2011, n° 10-19.053). The French Supreme Court confirmed its 2008 decision under the same rational and also ruled against surrogacy contracts in two other cases. (Cass. 1e Civ., 6/04/2011, n° 09-66.486;  Cass. 1e Civ., 6/04/2011, n° 09-17.130).

The French couple, whose child’s birth certificate was annulled, intends to appeal the Cour de cassation decision before the European Court of Human Rights (ECHR). The ECHR tends to favor the protection of the family and children (See e.g ECHR Kroon v. Netherlands, 27/10/1994; ECHR Wagner v. Luxembourg, 28/06/2007), and could very likely condemn France on those grounds for denying the children French citizenship. Given the European integration and the ECHR’s ability to control French judicial decisions, France may be compelled to change its position to comply with European decisions. The important and necessary changes on surrogacy policy in France will thus have to come from the European Union.

Panel 3:

Panel 4:

• Lea Brilmayer & Isaias Tesfalidet, Third State Obligations and the Enforcement of International Law, 44 N.Y.U. J. Int’l L. & Pol. 1 (2011).
• Ming-Sung Kuo, Taming Governance with Legality? Critical Reflections upon Global Administrative Law as Small-c Global Constitutionalism, 44 N.Y.U. J. Int’l L. & Pol. 55 (2011).
• Shana Tabak, False Dichotomies of Transitional Justice: Gender, Conflict and Combatants in Colombia, 44 N.Y.U. J. Int’l L. & Pol. 103 (2011).

For more information, please visit our Symposium Page.

• Margaret L. Satterthwaite, Indicators in Crisis: Rights-Based Humanitarian Indicators in Post-Earthquake Haiti, 43 N.Y.U. J. Int’l L. & Pol. 865 (2011).
• Doreen Lustig, The Nature of the Nazi State and the Question of International Criminal Responsibility of Corporate Officials at Nuremberg: Revisiting Franz Neumann’s Concept of Behemoth at the Industrialist Trials, 43 N.Y.U. J. Int’l L. & Pol. 965 (2011).
• Laura C. Turano, Note, The Gender Dimension of Transitional Justice Mechanisms, 43 N.Y.U. J. Int’l L. & Pol. 1045 (2011).

Also check out our book annotations.

• Georges Abi-Saab, The Normalization of International Adjudication: Convergence and Divergencies, 43 N.Y.U. J. Int’l L. & Pol. 1 (2010).
• Gerald L. Neuman, Anti-Ashwander: Constitutional Litigation as a First Resort in France, 43 N.Y.U. J. Int’l L. & Pol. 15 (2010).
• Kenneth J. Vandevelde, A Unified Theory of Fair and Equitable Treatment, 43 N.Y.U. J. Int’l L. & Pol. 43 (2010).
• Graham Frederick Dumas, Note, A Greener Revolution: Using the Right to Food as a Political Weapon Against Climate Change, 43 N.Y.U. J. Int’l L. & Pol. 107 (2010).
• Lee Leviter, Note, The ASEAN Charter: ASEAN Failure or Member Failure?, 43 N.Y.U. Int’l L. & Pol. 159 (2010).

The new issue also comes with our usual batch of book annotations.  In this issue, our staff reviews books by Burrus M. Carnahan, Michael Gross, Peter Jan Honigsburg, Franziska Humbert, David Kinley, James L. Nolan, Jr., Michael Scharf & Paul Williams, and Siobhan Wills.  We also cover several new edited volumes: Avant, Finnemore, and Sell’s study of global governance; Bowden, Charlesworth, and Farrall’s volume on post-conflict issues; and Steven Roach’s volume on the International Criminal Court.

Abstract

Last September, the Spanish Government sent to the Parliament a bill (the Bill) to reform the current Spanish Arbitration Act (Ley 60/2003, de 23 de diciembre, de Arbitraje), which is now being discussed in Congress. The Bill improves different aspects of the existing regulation, mainly those concerning the action to set aside the award, arbitrators’ liability, arbitration of corporate disputes and the effect of insolvency proceedings on arbitration agreements. However, the possible suppression of dissenting opinions prejudices arbitration and the regulation on challenge of judicial jurisdiction favors frivolous attempts to avoid abiding by arbitration agreements. respective  Additionally, the proposed assignment of functions among judicial bodies in arbitration issues lacks coherence and does not create a long-demanded unification appeal on arbitration matters. While this article welcomes some of the intended modifications, it raises concerns that Spain might be losing a unique opportunity to adopt a modern regulation that would advance its chances of becoming a prime international arbitration seat.

I. Introduction

Last September, the Spanish government submitted to the Congress – the lower chamber of the Spanish Parliament – a bill (the Bill) to reform the current Spanish Arbitration Act (Ley 60/2003, de 23 de diciembre, de Arbitraje). This article examines the intended modifications through an international perspective. I will start by briefly discussing the origins of the current Spanish Arbitration Act and how it adapts the UNCITRAL Model Law. In the next section, I study the main changes in the reform, leaving the ones concerning judicial competence on arbitration issues for the last section. Finally, I will address how to improve the current regulation. Specifically, I propose a scheme for judicial competence on arbitration issues, which includes a unified appeal for such issues.

II. The Arbitration Act and its need for an update

The enactment of the Arbitration Act (AA) in 2003 was a real breakthrough for arbitration in Spain. The AA is based on the UNCITRAL Model Law on International Commercial Arbitration (UNCITRAL Model Law) but, unlike in other Spanish speaking countries (e.g. Mexico and Chile), Spain’s law does not mirror the text of the Model Law word for word. Instead, it encompasses internal as well as international arbitrations, and both commercial and non-commercial disputes. Moreover, the AA includes provisions that differ from the UNCITRAL text, such as those describing the constitution of the arbitral tribunal, the challenge of arbitrators and the arbitration proceedings. Finally, the AA reflects the influence of other sources, such as the French and Swiss arbitration acts or the ICC Rules of Arbitration.

Nevertheless, with the increasing use of arbitration in Spain in the last years, several flaws in the AA have emerged that need to be addressed. Moreover, the Spanish authorities are committed to promoting arbitration and other means of alternative dispute resolution with a focus on speed and efficiency. As a matter of fact, the amendment of the AA is accompanied by another bill that introduces mediation in civil and commercial cases, in an effort to reduce litigation in Spanish courts.

III. Main aspects of the reform

The proposed amendment of the AA introduces relevant changes, some of which are a step forward, while others are difficult to understand, to say the least. Apart from the changes related to competence on arbitration issues, which I discuss in the next section, the following changes warrant closer examination.

1. Action to set aside the award.
2. Challenge of jurisdiction based on the matter having been submitted to arbitration.
3. Mandatory insurance for arbitrators.
4. Arbitration of corporate matters.
5. Effect of insolvency proceedings in arbitration agreements.
6. Public institutions’ arbitration.
7. Limitation of dissenting opinions.

1. Action to set aside the award

The reform includes three positive changes.

a)     Until now, the AA provided for a mandatory hearing before the court decided on the annulment, regardless of the parties’ opinion, which delayed the decision and was often futile, as counsel would often just repeat what they had said in their written statements. The amendment establishes that a hearing will only be scheduled if both parties ask for it, thus speeding the procedure.

b)    When the action for setting aside is based on the ground that the arbitrators have decided questions not submitted to their decision (art. 41.1.c AA), the claiming party shall first submit the question to the panel within 10 days of the issuance of the award. This will give the arbitrator(s) an opportunity to correct the mistake before the party files the judicial action, which will help reduce litigation.

c)     The ground for annulment based in the current text on the award being “in conflict with public policy” would now demand that the award be “manifestly in conflict with public policy,” therefore limiting the abuse of this reason to challenge arbitral awards.

2. Challenge of jurisdiction based on the matter having been submitted to arbitration

Challenges to the jurisdiction of a court on the basis of the dispute having been submitted to arbitration will no longer be filed by the defendant within 10 days from service of the claim, but within the time given to file the statement of defense, which is longer (20 days). Once the challenge has been filed the court will stay the proceedings and schedule a hearing before taking a decision. This is due to the fact that the Government does not consider the challenge as an objection to jurisdiction stricto sensu, but rather as a procedural obstacle (excepción procesal).

The legal rationale for the change is not compelling since, according to a majority of authors, the agreement to arbitrate deprives the courts of jurisdiction to adjudicate the claim, and hence the challenge should be treated as a real objection to the court’s jurisdiction. But aside from this argument, what is clear is that the amendment lengthens the duration of the challenge process, both through the longer time period to file the challenge as well as the mandatory hearing. To avoid such undue delay, the hearing should be left to the judge’s discretion upon request of one of the parties, as the submission to arbitrate is often clear and there is no need to produce any evidence to assess it (apart from the document containing the arbitration agreement), rendering a hearing inutile.

To sum up, even if the challenge does not prevent the initiation or continuation of the arbitral proceedings, this amendment introduces uncertainty in the arbitration process and incentivizes parties to take their claims to the courts even when their contract is explicitly subject to arbitration. We cannot welcome such inefficient change at all.

3. Mandatory insurance for arbitrators

The reform demands that arbitrators have insurance to cover whatever damages they cause the parties by reason of bad faith, recklessness or willful misconduct. This is a positive innovation, since it constitutes a guarantee for anybody reluctant to resort to arbitration as a means of dispute resolution, putting arbitration on a level with judicial litigation, where judges’ liability is covered by the State.

4. Arbitration of corporate matters

The Bill eliminates any doubts that may exist regarding the arbitrability of corporate disputes, providing that companies’ by-laws may establish the possibility of deciding the challenge of a social agreement through arbitration. Such a provision will be laid out either in the original by-laws or by way of an amendment agreed upon by all the shareholders. In short, this is a positive step that buttresses legal certainty.

5. Effect of insolvency proceedings in arbitration agreements

In the current text of the Spanish Insolvency Act (Ley 22/2003 Concursal), arbitration agreements are deemed void and without effect during insolvency proceedings. In contrast, the reform measures state that arbitration agreements will not be affected by the declaration of insolvency, a measure undoubtedly beneficial for arbitration practice. As a consequence of this change, actions related to the existence or quantity of a credit subject to an arbitration agreement would have the benefit of being solved through a separate arbitral procedure, whereas those that have to be decided on the courts would be dealt with within the insolvency proceedings.

6. Public institutions’ arbitration

The Bill introduces a mandatory arbitration system to decide in relevant disputes between certain public bodies of the Spanish state administration, putting an end to a loophole in Spanish laws that was ordinarily filled by a de facto (that is, ad hoc and non-regulated) regime. The regulation empowers an ad hoc governmental commission to deal with such disputes. While this reform makes sense, it concerns more administrative matters than arbitration, and thus an amendment to the AA does not seem to be the proper occasion to introduce it.

7. Limitation of dissenting opinions

The most surprising change proposed by the Government is the elimination of the reference to dissenting opinions in section 37 AA. The Bill does not expressly forbid them, but where the AA said that “The award shall be made in writing and be signed by the arbitrators, who might express their dissenting opinion,” it would now just say “The award shall be made in writing and be signed by the arbitrators,” which could be construed as an implicit prohibition of opinions different than the one sustained by the majority of the panel.

If the intent of the Government is to eliminate dissenting opinions, it should reconsider such idea. From the arbitrators’ perspective, dissenting opinions allow them to express their particular criterium on a legal matter, thus preserving their dignity and reputation before the arbitration community, if not their possible liability in cases of a manifestly illegal award pursuant to section 21 AA. From the point of view of parties, such opinions are sometimes the way of confirming that their case, even if it has not prevailed, has been fully taken into consideration. For the development of arbitration in general, dissenting opinions furnish arguments that may in the future develop into generally accepted legal doctrines.

While they are sometimes criticized on the grounds that they open the door to an action to set aside the award, and are almost always written by party-appointed arbitrators in favor of the party that designated them, dissenting opinions are positive and should not be eliminated. After all, many international arbitral institutions provide for them in their Rules (ICSID, rule 47.3) or otherwise admit them when they do not expressly regulate them (ICC, LCIA). We will have to see if the legislative process clarifies the situation as to the permanence of dissenting opinions in section 37 AA, but three different political parties in Congress have already objected to this change.

IV. Competence of the courts in arbitration matters: a great opportunity

The Act confers competence on the Superior Court of Justice (Tribunal Superior de Justicia, TSJ) of each region to decide on the exequatur of foreign awards, as well as on the action to set aside the award and the appointment of arbitrators. These changes deserve individual treatments.

a) Exequatur of foreign awards

While the main statute dealing with civil procedural issues in Spain is the Civil Procedure Act of 2000 (CPA 2000), the recognition and enforcement of foreign arbitral decisions in Spain is still regulated by the Civil Procedure Act of 1881 (CPA 1881), which until recently empowered the Supreme Court (the top of the Spanish judiciary) to deal with exequatur. Due to the Court’s workload, enforcing a foreign award could take many years. Thus, international arbitration practitioners were relieved when the legislature decided to change this attribution, only to learn that the First instance courts (the lowest in the judicial pyramid) were empowered in its place, and that the amendment did not provide for an appeal to their decision. Despite widespread criticism of the reform, it was approved in 2003, and quite predictably in the years since we have witnessed a dismaying variance of judicial criteria regarding the enforcement of foreign awards. Not even when the CPA 1881 was amended in 2009 to confer competence to the Commercial courts when the foreign award dealt with certain commercial disputes did the legislature take the opportunity to introduce a more rational regulation.

With the described situation, I welcome the amendment of CPA 1881 to confer competence to the TSJs on the exequatur of arbitral decisions, as there are only 13 TSJ in the country, compared to hundreds of First instance and Commercial courts, and this will certainly bring uniformity to the Spanish regime on the subject.

However, it is somehow surprising that the Bill does not grant competence to the TSJs for the exequatur of foreign judicial decisions as well. To be sure, the exequatur of foreign awards is not identical to the exequatur of foreign judgments, as the first is subject in Spain as in most countries to the 1958 New York Convention on the recognition and enforcement of foreign arbitral awards. But the procedure laid down in CPA 1881 is the same for both, and the issues and legal considerations courts face when dealing with them are certainly similar. All in all, it would seem wise to empower the same courts to hear both kinds of exequatur.

b) Action to set aside the award

The proposal to transfer the competence on the annulment action from the Provincial Courts to the TSJs seeks the same purpose of uniformity (there are 50 Provincial Courts in Spain, some of them having different sections with potentially different legal views). Some authors have expressed concerns on the change, since the Provincial Courts have well trained justices who have already gained considerable expertise regarding the set-aside action. However, given the overall benefit of concentrating jurisdiction on arbitration matters in a few judicial bodies, I think the change deserves praise.

c) Appointment of arbitrators

Finally, the Bill assigns competence on the appointment of arbitrators (when the parties do not agree on this issue) to the TSJs as well, to the detriment of First instance courts as we saw with the exequatur.

This means that arbitration matters would be distributed within the Spanish judiciary as follows:

• TSJs would have competence on the exequatur of foreign awards, as well as the action to set aside the award and the appointment of arbitrators.
• First instance courts would retain competence regarding judicial assistance in the taking of evidence, the adoption of interim measures and the enforcement of domestic awards issued in Spain.

One issue raised by this structure is that the Bill fails to clarify whether judicial decisions on the exequatur of foreign awards and the refusal to appoint an arbitrator can still be appealed, as CPA 1881 and AA currently allow. Until now, when First instance courts were empowered to adjudicate these issues, it was clear that Provincial courts could hear such appeals, as they have general jurisdiction on appeals against lower courts’ decisions. TSJs decisions, on the other hand, cannot generally be appealed. Thus, if the Bill was approved as it is now, we would have seemingly contradictory provisions, and we would be left to wonder whether TSJs decisions on arbitration matters can be appealed (quite unlikely) and in such case which judicial body will be empowered to hear the appeal.

Beyond that specific issue, the general objection I have to the scheme laid down in the Bill is that it lacks a logical rationale. If the Government intends to specialize TSJs in arbitration, why does it still reserve some of the competences for the lower courts? If the Bill purports to assign the “supervision” competences (action to set aside and enforcement of awards) to a higher court, while leaving the “assistance” competences to the lower courts, why does it empower the TSJs to decide on the appointment of arbitrators as well, which is by all accounts a judicial assistance competence? Additionally, as mentioned before, it makes little sense for First instance and Commercial courts to retain competence for the exequatur of foreign judgments.

Nevertheless my biggest concern with the Bill, again from a general perspective, is that it misses the opportunity to solve an eternal claim among practitioners: the need to create an appeal to unify criteria in arbitration issues. As we have seen it is most probable that TSJ’s decisions on appointment of arbitrators, action to set aside and exequatur of foreign awards will be final, since they cannot be appealed. As to the rest of the issues, some of the judgments by the lower courts can be appealed before the Provincial courts, but the Provincial courts’ decisions are final as well. Therefore, arbitration matters will be subject to a great variety of criteria, which is clearly incompatible with legal certainty. Unfortunately, none of the amendments to the Bill submitted by the political parties in Congress even mentions the possibility of introducing a unification appeal.

In my opinion, a reasonable structure for judicial competence on arbitration matters could be the following:

• Lower courts (First instance and Commercial courts) would hear all matters related to judicial assistance, that is appointment of arbitrators, taking of evidence, adoption of interim measures, and the enforcement of domestic awards. Their decisions would be susceptible of appeal to the regional TSJ.
• The TSJs would entertain the enforcement of foreign awards (exequatur) and the action to set aside an award, and their decisions would not be susceptible of (ordinary) appeal.
• An extraordinary ‘unification appeal’ against TSJs decisions, both in first instance and as appeal court, should be created before the civil section of the Supreme Court. This device would only be available in situations of split between TSJs, and the Supreme Court would act as a Cour de cassation, that is it would not review the merits of the case but limit itself to establish doctrine on arbitration issues, following a sort of certiorari rationale, to use an American legal term.

V. Conclusion

The Bill submitted by the government to reform the Spanish Arbitration Act takes steps in the right direction for the promotion of national and international arbitration in Spain. It improves the regulation to set aside the award, arbitrators’ liability, arbitration of corporate disputes and the effect of insolvency proceedings on arbitration agreements.

However, the amendment concerning the challenge of judicial jurisdiction favors frivolous attempts to avoid abiding by arbitration agreements, and the elimination of dissenting opinions in the award is a mistake that prejudices parties, arbitrators and arbitration in general. Moreover, the measures concerning competence of judicial bodies on arbitration matters lack coherence and do not further uniform legal criteria on arbitration matters.

Spanish public authorities have emphasized on many occasions their desire to make Spain, and particularly Madrid, a first class international arbitration seat. This is the first time the Spanish legislature has attempted to bring a general amendment to the AA since its enactment in 2003. It will be long before Spain has an equally promising opportunity to establish a coherent regulation that ensures legal certainty, which can only be achieved with a unification appeal. Unfortunately, despite its great progress it seems that, once again, Spain is going to be late to its appointment with international arbitration.

Philip Alston famously described the use of drones by the U.S. military and the CIA as potentially leading to a “playstation mentality,” in which the human and capital costs of strikes are so decreased from the perspective of the striking force that fewer precautions are taken in conducting such strikes. The criticism is valid, although it has been refuted by government lawyers from Harold Koh on down.

Yet reduced costs may not have universally negative results. Michael Walzer, in his seminal work Just and Unjust Wars, wrote about the moral duty on combatants to expose themselves to further risk in order to save the lives of civilians caught in combat zones. With drones, however, especially the land-based models described recently in the New York Times, the reduction or even elimination of risk to the human operator could make it easier for the military to warn effectively the civilian population ahead of or during operations. What is more, the moral ambiguity of using human soldiers as tools for the aim of reducing civilian casualties, which arises from the government’s duty to ensure (as far as possible) the right to life of its own forces, all but disappears with the use of drones.

One of the most effective uses of robotic vehicles in combat, then, may not be to kill the enemy, but to warn the innocent. The “playstation mentality” may thus reduce the apparent costs of giving effective advance warning to non-combatants–forces will be more willing to go farther to warn, just as they have been in executing strikes. Taking it a step further, there could be a legitimate argument that, as militaries acquire drone technology, they could become bound by article 57 of Additional Protocol I to use those drones to ascertain the status of potential targets and to ensure that civilians are not threatened during operations.

This is, of course, not to exonerate or justify the use of drones in warfare; the position I take is neutral and without prejudice to, for example, the U.S. military’s campaign of Predator strikes in the Af-Pak region.

In the seventh volume of JILP, a review of Henkin’s Foreign Affairs and the Constitution recognized the supreme importance of this work to the field of U.S. foreign relations law.  (7 N.Y.U. J. Int’l L. & Pol. 203.)  Henkin, Stanley Futterman wrote, spoke with “the natural modesty and courage of the true teacher.”  But our reviewer soon takes  a more critical stance in light of Henkin’s discussion of Vietnam.In the review, one can feel the renewed urgency of this field of study, in light of the ongoing trauma of the Vietnam War.  The review sometimes laments Henkin’s relatively neutral tone, wishing that Henkin would do more than assess the bare legality of certain assertions of presidential power, and that he would also discuss the “constitutional propriety” of legislative action.  Consider this paragraph:

President Johnson did have the Tonkin Gulf Resolution, of course, as a prop for his later decision [to commit troops].  And its language is borad enough to encompass all that was later done.  But is it immaterial that the Resolution was passed more than half a year in advance of the sending of large numbers of combat forces into Vietnam, in the very different context of what was understood to be … naval attacks on American warships on the high seas? So long as the question is only one of technical legal authorization, the answer is probably yes.   If the question is whether the President acted properly in not returning to Congress for a deliberate decision … the answer is no.  Henkin’s falure to pose the issue of constitutional propriety in regard to Vietnam is no service to future Chief Executives.  The consequences of constitutional improprieties may not show up in the courts; but unless the nation is very lucky, as it obviously was not in Vietnam, they will leave an unmistakble imprint of recrimination and mistrust in the body politic.

Foreign Affairs would receive a thorough update in 1997.  Also, see this interview with Sarah Cleveland on the continued legacy of Henkin’s in the “age of terror.”

Henkin has also been cited in our journal in at least 110 articles and notes.  This number will increase with the publication of our Fall 2010 issue, as two pieces (including my own) make reference to his highly influential work on human rights and state sovereignty.