Common use of Interim conclusions Clause in Contracts

Interim conclusions. This section concerned the interpretation and application of the phrase ‘private law character’ under Section 29(a) of the General Convention. It has been submitted that the ordinary meaning of the term dispute of a ‘private law character’ refers to the following: domestic law, not international law; the opposite of ‘public law’; and a common denominator among domestic private laws, as opposed to one specific domestic law. It has furthermore been submitted that, according to the collective travaux of the General Convention and the Specialized Agencies Convention, ‘disputes of a private law character’ may be said to refer to disputes that: concern matters that are ‘incidental’ to the ‘constitutional functions’ of the UN and do not relate to the ‘actual performance’ of such functions; would have come before municipal courts but for the immunity of the UN, Section 29 of the General Convention being the ‘counterpart’ of the UN’s immunities; and concern the performance of ‘official acts’, but not ‘constitutional functions’. In interpreting the phrase ‘private law character’, the key challenge is to distinguish ‘public’ from ‘private’. This section offered a number of considerations to that end. Three ingredients suggest, but are not necessarily determinative of, a ‘private law character’: the nature of the claimants (third non-state parties); the damage sustained (personal injury, illness or death, and property loss or damage); and, the remedy requested (compensation). Furthermore, the jurisdiction of domestic courts in private law disputes would normally exclude those disputes that are within the public realm of international organizations. Moreover, since the adoption of the General Convention, there has been a development whereby the UN began to exercise governmental powers over individuals. A parallel development involved the advent of international human rights. This ‘dual process’ calls for the establishment of ‘public law remedies’. The Dutch experience cautions against expanding the interpretation of the application of Section 29 to such disputes (which would moreover run contrary to its travaux préparatoires). When this interpretation of ‘private law character’ is applied to the UN’s practice, the 1995 Report’s exclusion of disputes based on ‘political or policy-related grievances’ appears problematic. In determining whether a dispute has a private law character, what matters is whether the actual performance of constitutional functions is at issue. As seen, in UN practice, defamation claims qualify 758 Ibid., at 733. as disputes of a private law character. And, there are possibly other claims the character of which requires close examination. As to the three case studies, it is submitted that in the cases arising out of the Kosovo lead poisoning and the Srebrenica genocide there are arguments to reject dispute settlement under Section 29 of the General Convention on account of the prevailing public law character of the respective disputes. That is, the impugned decisions in these cases essentially concern policy choices by the UN in the exercise of its governmental or public authority. Conversely, regarding the Haiti cholera epidemic, it has been submitted that the UN’s refusal to engage in dispute settlement under Section 29 is more difficult to justify. It is true that public policy decisions are at play. However, the dispute does not concern such decisions, but rather their operational implementation. The alleged deficiencies in so doing arguably amount to a failure to discharge a duty of care that applies to the UN as much as it does to anyone. In other words, the character of the Haiti dispute, properly considered, seems to fit the definition of ‘private law’ in accordance with the intention of the drafters of the General Convention. Not only are decisions as to the public or private character of a dispute legally complex, they also have significant implications for the claimants. In addition, controversial decisions, such as with respect to the Haiti cholera epidemic, impact on the UN’s reputation and thereby effectiveness, and may also potentially threaten its jurisdictional immunity (notwithstanding that in the cholera dispute the US courts upheld the immunity). This brings into sharp focus that, as seen previously, it is the UN itself that determines the character of disputes brought against it. That process is problematic, which is compounded by procedural problems in the implementation of Section 29(a), as discussed in the next subsection.