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Securing a Fair Trial Against International Organisations: A Private International Law Perspective

Student thesis: Doctoral ThesisDoctor of Philosophy

Rishi Gulati suggests a novel, comprehensive, achievable and well balanced regulatory framework to ensure the effective delivery of justice to private persons harmed by international institutional conduct. Regardless of the subject matter of a dispute or the gravity of harm, the location of the affected party or the identity of the international organisation (IO), the public visibility of a dispute or its inconspicuousness, we live in a ‘denial of justice age' when it comes to the individual pursuit of justice against IOs. The victims (including families of the more than 9000 individuals who lost their
lives) of cholera introduced in Haiti by UN peacekeepers in 2010 are still awaiting effective justice. The victims of the Srebrenica genocide of 1995 for which the UN assumed moral responsibility have not yet been compensated, with no such compensation in sight. When hundreds of Roma suffered serious harm due to lead poisoning caused by the apparent negligence of the UN Mission in Kosovo in placing vulnerable communities next to toxic mines, the UN belatedly set up a Human Rights Advisory Panel; its adverse findings have gone unenforced to this day. There are countless other disputes, including, contractual, tortious, employment and administrative, where a denial of justice is much too common. Bringing this denial of justice age to an end is the main objective of this work. Introducing for the first time the concept of a regulatory arbitrage in the governance of IOs, the author shows how it results in the victims of IO conduct slipping through real or perceived legal loopholes when seeking to access justice. Unless the exploitation of the regulatory arbitrage is tackled, the denial of justice age cannot be brought to an end. To address this arbitrage, it is shown how private international law techniques can be used to balance competing but legitimate values.
Focusing on the rules on jurisdiction, choice of law and the recognition and enforcement of foreign judgments (the three aspects of private international law), the author demonstrates how the individual right to access justice can be secured without compromising IO independence . The work concludes that an organisation such as the Hague Conference on Private International Law is best placed to initiate discussions about the negotiation of a global treaty that enshrines the private international law rules applicable between states and IOs.

Original languageEnglish
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Award date2019

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