Extinctive Prescription and Public International Law - Chapter 3 - Essays on International Arbitration
Kaj Hobér is a Partner of Mannheimer Swartling, resident Stockholm office and Professor of East European Commercial Law at Uppsala University, Uppsala. His practice areas include: international arbitration, East European law, international investment and trade, international business transactions. He has been heavily involved in the legal aspects of doing business in Eastern Europe and the former Soviet Union for the last 20 years. His arbitration experience includes representing both eastern and western European, American and Russian parties as well as parties from developing countries in international arbitrations taking place in Stockholm, Moscow, London, Paris, New York, Vienna and elsewhere. Mr. Hobér has also been involved in numerous oil arbitrations, relating primarily to northern Africa, the Middle East and the former Soviet Union and has acted as arbitrator in more than 150 international arbitrations (including chairmanships) and as counsel in approximately 150 international arbitrations.
Professional memberships include: member of the Swedish Bar Association; member of the American Bar Association; member of the Board of the Swedish Scientific Institute of Arbitration Law, the Board of the Arbitration Institute of the Stockholm Chamber of Commerce, the International Arbitration Club (London) and member of the ICC Institute of International Business and Law (corresponding member). He has been listed as arbitrator on the panels of the Austrian Federal Chamber of Commerce, Vienna, the Chamber of Commerce and Industry of the Russian Federation, Moscow, the Ukrainian Chamber of Commerce, Kiev, the American Arbitration Association and of the ICSID Arbitration Center, Washington DC. He is also a Commissioner at the United Nations Compensation Commission in Geneva.
Originally from Essays on International Arbitration
Under most municipal law systems the lapse of time may influence the possibility to present claims in a court of law or before an arbitral tribunal. Generally speaking, delay in presenting a claim – however such delay is defined – may bar a party from presenting a claim. Municipal law generally contains specific time limits in this respect. Public international law does not contain any such time limits. This notwithstanding, the principle of extinctive prescription is recognized in public international law. Despite the general acceptance of the principle of extinctive prescription there are a number of open issues, indeed uncertainties, as far as the application of the principle is concerned.
Extinctive prescription is an issue of decisive and legal importance in any dispute. If a claim has been extinguished by the lapse of time, that is usually the end of the dispute, or at least the arbitration. The claim is no more, consequently the arbitration is no more. The defense of extinctive prescription usually means that the issue of applicable law is brought to a head, and the tribunal must address it squarely and rule on it. Against this background, there has been surprisingly little discussion and analysis of extinctive prescrip-tion in international law during the last fifty years. Given the potentially draconian effects of extensive prescription in interstate arbitration, the issue deserves more attention. Extinctive prescription continues to be of importance in interstate disputes where the tribunal in question is applying public international law to resolve the dispute.
3. Extinctive Prescription and Public International Law
3.2 Does extinctive Prescription exist under Public International Law?
3.3 Opinions of writers
3.4 Decisions rendered by international tribunals
3.5 The Rationale Underlying Extinctive Prescription in International Law
3.6 When is the Principle of Extinctive Prescription Applicable?
3.7 Extinctive Prescription distinguished
3.8 Is Extinctive Prescription Procedural or Substantive in Nature?
3.9 Municipal Statutes of Limitation and Extinctive Prescription under Public International Law
3.10 Extinctive Prescription and ius cogens
3.11 Summary and Concluding Remarks