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(2022)ThesisThe thesis examines the interpretation and application of the due process defence under the New York Convention. It argues that the due process defence under the New York Convention should be interpreted consistently with the interpretative framework set out in the Vienna Convention on the Law of Treaties (VCLT) and, more specifically, by recourse to the general principle of audiatur et altera pars and subsequent practice of State Parties to the New York Convention. This interpretative approach ensures that due process under the New York Convention is a genuinely transnational standard distinct from any particular national legal system. In order to support this argument, chapter 2 establishes a particular understanding of the transnational approach grounded in the international interpretative rules contained in the VCLT. Chapter 3 shows that audiatur et altera pars is a well-accepted general principle of law and argues that its dimensions can concretise the normative content of the due process defence under the New York Convention. Chapters 4–7 explore relevant forms of ‘subsequent practice’ for the interpretation of the due process defence under the interpretative framework established by international law. The thesis makes three specific contributions to the theorisation and development of the transnational approach. First, arbitration scholars have talked about the importance of an autonomous approach to ensure predictability, but not fully articulated the scope and analytical possibilities of this approach. This thesis takes on this task via the VCLT, while also providing a structured way for domestic courts to consider and assess legal materials from beyond their own jurisdiction. It specifies a transnational informed approach to thinking about the general principle of audiatur et altera pars and subsequent state practice in interpreting and applying Article V(1)(b) of the New York Convention. Second, it shows how much of the arbitration scholarship on transnationalism can be recast within a public international law framework, thereby contributing to debates within international law about the decentralised interpretation of treaties by domestic courts. Third, the thesis’s preferred understanding of the transnational approach — one grounded in the public international law framework for treaty interpretation — resolves a range of practical questions about the precise content of the due process standard.
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(2023)ThesisThis thesis examines the phenomenon of cultural appropriation of Indigenous heritage as a problem without a solution in international law. It centres often-neglected Indigenous voices in exploring legal responses based on Indigenous control over their heritage to fill this gap and provide adequate answers to the problem. I argue that centring Indigenous voices is crucial to shifting conventional understandings of appropriation and its harms in international fora, and to inform and guide international efforts to address the phenomenon. Additionally, I argue that Latin American legal experiences involving Indigenous heritage safeguarding can be not only informative in themselves but also create an additional lever for shifting received wisdom in this debate. Cultural appropriation occurs when a dominant group appropriates from a subordinate one (often the case of Indigenous peoples) without their authorisation or consent, causing harms to the latter by removing or misusing their heritage and affecting their (cultural) identity. The lack of adequate international legal response to appropriation aggravates its harmful effects by not providing Indigenous peoples with appropriate legal tools to prevent, stop, or remedy such practices. Considering the shortcomings of existing international regimes applicable to Indigenous heritage protection and of current efforts tackling appropriation internationally, this thesis examines and proposes pathways to a new international framework addressing appropriation and offering solutions to Indigenous groups. In this analysis, I rely on core claims advanced by Indigenous advocates against appropriation to identify key features of an appropriate international legal response to the problem. Further, besides centring Indigenous voices, and to the extent that international fora remain state-centric and require state-filtering of those solutions, I propose a shift away from the usual focus (in the law and scholarship) on the rationales and interests of Western (Euro/Anglo) and developed states. Instead, we should emphasise the views and propositions of Third World (and more specifically, Latin American) countries in international efforts addressing appropriation and Indigenous heritage safeguarding. This shift is justified by Latin American states’ historical support for and promotion of Indigenous rights internationally, and the existence of several specific laws in these countries directly safeguarding Indigenous heritage, including against appropriation. From these core arguments, I contribute to international legal scholarship on Indigenous heritage protection by promoting the focus on Indigenous voices in debates around appropriation and by highlighting useful Latin American responses to the issue often overlooked in (Anglophone) literature. I also suggest pathways and elements for a new international regime on appropriation that can overcome current impasses and challenges in international fora discussing the matter, recognising Indigenous peoples as subjects, rather than objects of international law, and giving them back the control over their heritage that they never relinquished.