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Penelope Nevill

LLB (Hons)/BA (Auckland); LLM (Cantab)

Penelope Nevill is a specialist in international law, whose practice focuses on disputes and transactional advice cutting across various areas, including public international law, EU law, public law and human rights and commercial disputes raising questions of international and EU law. Penelope has appeared as counsel before the International Court of Justice, the European Court of Human Rights and an UNCLOS Annex VII Tribunal, as well as the High Court, the Court of Appeal and the Supreme Court of England and Wales. In addition she regularly provides transactional advice to governments, the private sector and NGOs.

In the last year, Penelope has acted for the Secretary of State for Foreign and Commonwealth Affairs in Bancoult (No 3) and the Secretary of State for the Home Department in Bashir, both before the Supreme Court and raising issues of diplomatic immunity and the interpretation and application of the Refugee Convention, ECHR and EU Charter. Notable recent advice work includes working with a coalition of NGOs on the campaign to close international and domestic commercial trade in ivory.

Most of the work Penelope does involves the interaction between the international, EU and national legal systems and different regimes under international and regional law. Having started her career as a litigation lawyer in New Zealand with leading firm Chapman Tripp, she has extensive and varied practice experience. In addition, Penelope has been a full-time academic at the University of Cambridge, teaching public international law, EU law and the Law of Armed Conflict. She is currently a Visiting Lecturer at King's College, London.

She is on the Attorney-General’s specialist Public International Law 'B Panel' and the General 'C Panel'.

In the legal directories Penelope is described as "an excellent public international lawyer... A real rising star of the Bar" (Chambers & Partners UK Bar 2018). Legal 500 2017 says "she has exceptional experience and is enormously talented".

Principal Cases: 

Public International Law

Penelope has advised and acted as counsel in a wide variety of international and domestic cases involving all aspects of Public International Law.

Her cases (international and domestic) include:

R (Bashir & others) v. Secretary of State for the Home Department Acting for the Home Office in judicial review action concerning, inter alia, whether the Refugee Convention applies to the Sovereign Base Areas of Dhekelia and Akrotiri or via the EU Treaties and claims under the ECHR and EU Charter and claims under ECHR articles 8/14 ([2016] EWHC 954 (Admin) [2016] 1 WLR 1954 (Admin); [2017] EWCA Civ 397; Supreme Court appeal pending).

R (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs (No. 3) Acting for Secretary of State in judicial review proceedings relating to a public consultation of the proposed large scale marine protected area around the British Indian Ocean Territory, including novel issues concerning reliance on wikileaks documents, diplomatic immunity and inviolability, fishing rights under public international law, justiciability and jurisdiction ([2014] EWHC 1502 (Admin); [2014] Env LR 2, [2013] ACD 83; [2014] EWCA Civ 708, [2014] 1 WLR 2921, [2015] 1 All ER 185; Supreme Court judgment pending).

Bamieh v. EULEX, FCO & Ors Defending employment claims against FCO, which include legal personality of international and regional organisations in international, EU and domestic law and extra-territorial scope of the UK Employment Rihjts Act 1996, the ECHR and EU Charter (ET Decision on Preliminary Issues dated 15 April 2016; EAT decision on appeal pending).

Instructed by charterers in possible ITLOS prompt release and Annex VII arbitration proceedings arising out of the arrest of the crew and vessel by a coastal State in its EEZ. Included advice and drafting application

Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award 18 March 2015, Annex VII arbitration under the UN Law of the Sea Convention 1982 (UNCLOS). Counsel for United Kingdom in the dispute over the Marine Protected Area of the British Indian Ocean Territory.

Commercial arbitration on the legality of a voyage order to discharge cargo in a northern Cyprus port, which turned on various issues of public international law and private international law in relation to territory over which the de jure government does not exercise effective control.

Khurts Bat v. Investing Judge of the German Federal Court [2011] EWHC 2029 Assisted counsel for the Foreign Office as intervenor responding to Mr Bat’s claims of special mission, high ranking office and official act immunity.

Case Concerning Sovereignty Over Pulau Batu Puteh/Pedra Branca, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment, ICJ Reports 2002, p 625. Counsel for Malaysia in dispute with Singapore concerning the sovereignty over an island at the eastern entrance of the Singapore Strait.

Xenides-Arestis v. Turkey, Application No. 46347/99, European Court of Human Rights, 22 December 2005. Counsel for Turkey in test case concerning the Court's jurisdiction over property rights claims arising out of the situation in northern Cyprus.

Investment treaty arbitration: see separate heading below.

In addition, Penelope is frequently instructed by the government and others on cases involving diplomatic and state immunity.

 

Penelope's advice work includes:

Advices to government on the application of UNCLOS to a sovereignty dispute, with particular focus on the dispute settlement provisions in light of recent jurisprudence.

Advice to Stop Ivory (NGO) on implementing a total ban on sales of ivory under international law, including CITES, the Bonn Convention, and the Convention on Biological Diversity (available at http://www.stopivory.org/).

Advice to government on the limits of the outer continental shelf and the process before the Commission on the Limits of the Continental Shelf.

Advice to government agency on underwater cultural heritage, including the relationship of UNCLOS to marine licensing of activities under domestic law and the relevance of the law of salvage.

Advice to government on the implications of the European Court of Justice’s Kadi II judgment for sanctions.

Advice to firm in Hong Kong on potential application of EU sanctions regime against Russia.

Advice to company on legal issues arising under EU, domestic law and private international law from investing in a development in northern Cyprus.

Advice to company on sanctions risks arising from proposal to invest in North Korea.

Advice on potential UK proceedings against a parent company for actions of subsidiary in UNESCO World Heritage Site in a foreign country, including assessment of the application of the Ruggie Principles, the OECD Guidelines For Multinational Companies and extraterritorial tort claims under English law.

Advice to vessel owners on whether compliance with a voyage order will breach UN, EU and national sanctions.

Advice to a European energy company on proposed trans-Caspian Sea pipeline and public international law issues arising from the proposal. The advice covered the law of territory (condominiums and transboundary lakes), law of the sea (enclosed seas), the lex communicatus and international and EU environment law, and included presentations of the advice to the European Commission and a foreign ministry.

In addition to her practice, Penelope and has taught the subject at undergraduate and graduate level for many years and is regularly invited to speak and write on the subject (see further below).  

Public Law, Human Rights & Environmental Law

Penelope's practice increasingly covers cases and advice work on public law, human rights and environmental law. In addition to the cases and advice work under the Public International Law heading crossing into this category, her work includes:

Bancoult (No 5) and Chagossian Committee Seychelles v. Secretary of State for Foreign and Commonwealth Affairs Counsel for Secretary of State in judicial review proceedings challenging the outcome of the review of policy concerning the British Indian Ocean Territory.

Densham v. Chief Constable of Devon and Cornwall Police & Ministry of Justice Sole counsel for the Ministry of Justice in claims made under the Human Rights Act, ECHR article 8 and the Data Protection Act 1998.

Crick v. Ministry of Justice Sole counsel for the Ministry of Justice in joined Human Rights Act claims made under ECHR articles 6 and 8 in respect of two underlying proceedings. Succeeded in securing strike outs and civil restraint orders.

R (Horeau & Ors) v. The Secretary of State for Foreign and Commonwealth Office [2016] EWHC 2102 (Admin) Counsel for the Secretary of State in judicial review claim brought by Chagossians based in the Seychelles concerning public consultation and alleged breaches of the public sector equality duty (PSED) under the Equality Act 2010. Successfully appeared as sole counsel at oral renewal permission hearing.

Child Soldiers International v. Secretary of State for Defence Instructed by the Secretary of State for Court of Appeal stage for pleadings on interpretation and application of Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation and its relationship to the Army Terms of Service Regulations 2007.

Advice to foreign government on extraterritorial application of English legislation implementing the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW) and EU implementing legislation.

Advice to Stop Ivory (NGO) on implementing a total ban on ivory sales in UK law.

Advice to Marine Management Organisation on implementing the Marine Licensing (Exempted Activities) Order 2011.

Advice to government agency on dredging proposal implications under international, EU and domestic law.

In addition to the 'business and human rights advice' on potential UK proceedings against a parent company for actions of subsidiary in UNESCO World Heritage Site in a foreign country, Penelope lectured on this subject in the LLM course at King’s College, London, United Nations: International Institution and Domestic Legal Spaces. She lectured on the Law of Armed Conflict/International Humanitarian Law LLM at the University of Cambridge between 2011-2016, worked at early stages on the draft arms trade treaty and co-authored chapters on articles 6 and 22 for the commentary on the Arms Trade Treaty published by Lalive.

Investment Treaty Arbitration & Trade Law

While Penelope’s recent work in this area has focussed primarily on investment treaty arbitrations and the ivory trade she has lectured on the WTO Dispute Settlement Understanding and free movement of goods, services and persons rules under the EU Treaties.

Her investment and trade work includes:

Two investment treaty arbitrations. Instructed by claimant to work with law firm legal team, including preliminary stages and related annulment proceedings. The arbitrations are ongoing.

Two advices provided to Stop Ivory on banning trade in ivory in international and UK law. The campaign work has included presenting arguments to MPs and advising on legal issues concerning the interpretation and application of CITES for CITES COPs.

Assisting counsel with advice to a global company on potential claims under a bilateral investment treaty and prospects of success.

Azurix Corp v. Argentine Republic ICSID Case No. ARB/01/12. Assisting arbitrator in jurisdictional phase of a bilateral investment treaty claim arising out of investment in a water utilities concession.

Waste Management v. Mexico ICSID Case No. ARB(AF)/00/3). Assisting president of the tribunal in a NAFTA Chapter 11 dispute.

Assisting counsel with advice to a government on the interpretation of the WTO Technical Barriers to Trade Agreement.

Recent talks include:

'The Use of Settlement Offers', BIICL Investment Forum Series, 15 November 2016

20 Essex Street Workshop on Investment Treaty Arbitration, Slaughter and May, 31 March 2016 

'Arbitration under investment treaties: What it is and how to plan for it', British Embassy Guatemala’s 'English Common Law for International Commerce in Latin America' Project, Arbitral Institution of the Chamber of Industry in Guatemala, 19 October 2015 and Honduran Bar Association, 21 October 2015

‘International Investment Law: The State’s Perspective’, Brunei Darussalem, organized by the Ministry of Foreign Affairs for officials from various government departments and open to the public, 2 May 2015

Law of the Sea & Shipping Law

Much of Penelope's disputes and advice work concerns or involves the law of the sea and shipping law. Examples above which fall into this category include:

Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award 18 March 2015, Annex VII arbitration under the UN Law of the Sea Convention 1982 (UNCLOS). Counsel for United Kingdom in the dispute over the Marine Protected Area of the British Indian Ocean Territory.

Instructed by claimant in London arbitration concerning breach of charterparty to address illegality argument based on Iran sanctions following the JCPOA and, in particular, the impact of US Iran sanctions.

Instructed by charterers in possible ITLOS prompt release and Annex VII arbitration proceedings arising out of the arrest of the crew and vessel by a coastal State in its EEZ. Included advice and drafting application.

Commercial arbitration on the legality of a voyage order to discharge cargo in a northern Cyprus port, which turned on various issues of public international law and private international law in relation to territory over which the de jure government does not exercise effective control.

Case Concerning Sovereignty Over Pulau Batu Puteh/Pedra Branca, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment, ICJ Reports 2002, p 625.  Counsel for Malaysia in dispute with Singapore concerning the sovereignty over an island at the eastern entrance of the Singapore Strait, which included arguments on the vessel traffic system through the Singapore and Malacca Straits, aids to navigation and UNCLOS provisions on maritime zones generated by islands, rocks and low tide elevations.

Advices to government on the application of UNCLOS to a sovereignty dispute, with particular focus on the dispute settlement provisions in light of recent jurisprudence.

Advice to government on the limits of the outer continental shelf and the process before the Commission on the Limits of the Continental Shelf.

Advice to government agency on underwater cultural heritage, including the relationship of UNCLOS to marine licensing of activities under domestic law and the relevance of the law of salvage.

Advice to foreign government on extraterritorial application of English legislation implementing the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW) and EU implementing legislation.

Advice to Marine Management Organisation on implementing the Marine Licensing (Exempted Activities) Order 2011.

Advice to vessel owners on whether compliance with a voyage order will breach UN, EU and national sanctions.

Advice to government agency on dredging proposal implications under international, EU and domestic law.

Advice to a European energy company on proposed trans-Caspian Sea pipeline including law on transboundary pipelines through enclosed seas or inland waters and environmental obligations. 

In addition Penelope regularly lectures on law of the sea at King's College, London and is designing and convening a new LLM course, Transnational Oceans and Maritime Law and regularly speaks on the topic. Recent highlights include 'Area-Based Management Tools, Including Marine Protected Areas', at the 2017 ASIL Meeting, Washington D.C, 12-15 April 2017 on the panel session on the new treaty on areas beyond national jurisdiction.

Commercial

Penelope is often instructed on commercial disputes involving issues of public international law. Work includes:

Acted for claimant in London arbitration concerning breach of charterparty to address illegality argument based on Iran sanctions following the JCPOA, and in particular, the impact of US Iran sanctions (settled).

Acting for respondent in ICC arbitration concerning alleged breach of sale and purchase agreement to address illegality argument based on sanctions (ongoing).

Assisting counsel with arbitration concerning breach of a concession contract on opposing party's argument based on 'internationalised contracts'.

Acting for claimant charters in London arbitration concerning the legality of a voyage order to discharge cargo in a northern Cyprus port.

Assisting counsel with arbitration concerning breach of a concession contract on opposing party's argument based on 'internationalised contracts'.

Energy & Natural Resources

Penelope's practice includes work in the energy sector. Of the examples set out above, the following had an energy law component:

Two investment treaty arbitrations.  Instructed by claimant to work with law firm legal team, including preliminary stages and related annulment proceedings. The arbitrations are ongoing.

Advice to a European energy company on proposed trans-Caspian Sea pipeline and public international law issues arising from the proposal.  The advice covered the law of territory (condominiums and transboundary lakes), law of the sea (enclosed seas), the lex communicatus and international and EU environment law, and included presentations of the advice to the European Commission and a foreign ministry.

Advice on potential UK proceedings against a parent company for actions of subsidiary in UNESCO World Heritage Site in a foreign country, including assessment of the application of the Ruggie Principles, the OECD Guidelines For Multinational Companies and extraterritorial tort claims under English law.

Talks and articles include:

'Changes to the legal framework governing decommissioning which we can or may expect as a result of Brexit', Contract Strategy for the Energy Industry: Drilling Through The Turmoil, 20 September 2017, Scottish Arbitration Centre

'Settlement of international disputes related to the use of natural resources under the United Nations Convention on the Law of the Sea': Comment on Judge Golitsyn's paper’, Stress Testing the Law of the Sea, King's College, London, 30-31 September 2016

'Legal Uncertainty in Undelimited Areas', BIICL Event on Release of its Report on the Obligations of States under Articles 74(3) and 83(3) of UNCLOS in respect of Undelimited Areas, 22 July 2016

'Such uncertainty as a sure thing: Legal uncertainty and North Sea oil post-Scottish independence' (with Angharad Parry), (2014) 5 International Energy Law Review 180

Education and Career: 

LLB (Hons)/BA (English & history), University of Auckland, 1992-1996

Solicitor, Chapman Tripp (Auckland), 1997-2001

LLM (First Class), University of Cambridge, 2001-2002

Research Fellow, Lauterpacht Centre for International Law, working with Sir Elihu Lauterpacht QC, Professor James Crawford SC and Sir Daniel Bethlehem QC, University of Cambridge, 2002-2005

Fellow and College Lecturer in Law, Downing College and Fellow, Lauterpacht Centre for International Law, 2005-2010

Publications: 

'Area-Based Management Tools, Including Marine Protected Areas', Proceedings of the American Society of International Law 2017 (forthcoming)

'Settlement of international disputes related to the use of natural resources under the United Nations Convention on the Law of the Sea': Comment on Judge Golitsyn's paper, Caron and Minas eds., Stress Testing the Law of the Sea (forthcoming)

'Interpretation and review of UN sanctions by European courts: comity and conflict', in van den Herik ed., Research Handbook on UN Sanctions and International law (Edward Elgar, 2017)

'Article 6' (with Clare Da Silva) and ‘Article 22’ (with Mubarak Waseem) in Da Silva and Woods eds., Commentary on the Arms Trade Treaty (Lalive, 2015)

'Sanctions and commercial law', in Happold and Eden eds., Sanctions and Embargoes in International Law (Hart, 2016)

'Military sanctions enforcement in the absence of express authorization', chapter 12 in Weller, ed., The Oxford Handbook on the Use of Force (OUP, 2015)

'Such uncertainty as a sure thing: Legal uncertainty and North Sea oil post-Scottish independence' (with Angharad Parry), (2014) 5 International Energy Law Review 180

'When diplomacy fails - the complex  legal fallout from imposing sanctions' (with Sara Masters), Legal Week, 9 March 2012

'The European Union as a Source of Public International Law' (2013) Hungarian Yearbook of International Law and European Law 281

'Relations Between International Courts and Tribunals', with James Crawford, in Margaret Young ed, Regime Interaction in International Law (Cambridge University Press, 2011)

'Treaty Interpretation and Troubled Treaty Regimes: The Case of International Investment Law', in Marcel Szabó ed., State Responsibility and the Law of Treaties (Eleven International Publishing, 2010), 161

'Interest' (with Elihu Lauterpacht), in James Crawford, Alain Pellet and Simon Olleson (eds.) (with the collaboration of Kate Parlett), The Law of International Responsibility (Oxford University Press, May 2010)

'The Treatment of Interest in International Awards' (2007) 78 British Year Book of International Law 255

'Reconciling the Clash Between UK Obligations under the UN Charter and the ECHR in Domestic Law: Towards Systemic Integration?' (2008) 67 Cambridge Law Journal 447 (case note)

'Qualifying the Human Rights Act: Detention under Security Council Resolutions' (2006) 65 Cambridge Law Journal 476 (case note)

'New Zealand: The Privy Council is replaced with a Supreme Court' (2005) 3 International Journal of Constitutional Law (I*CON) 115

Appointments and Society Memberships: 

Attorney-General's Specialist Public International Law "B Panel" (effective from 1 March 2014)

Attorney General's Panel of Junior Counsel (C Panel) (effective from 1 March 2013)

Senior Research Fellow and Affiliated Lecturer at the Transnational Law Institute, King's College London (2015-)

Affiliated Lecturer, University of Cambridge (2008-2011, 2011-16)

Fellow, Lauterpacht Centre for International Law (2005-2010)

Fellow & College Lecturer, Downing College, University of Cambridge (2005-2010)

American Society of International Law (Program Committee Member, ASIL Meeting 2018)

International Law Association, British Branch

Lectures and Teaching: 

Lectures & Teaching

Transnational Oceans and Maritime Law (LLM), King's College, London (course convener and lecturer) (2017-)

The United Nations: International Institution and Domestic Legal Spaces (LLM) King’s College, London (2015 module leader & lecturer; 2016 lecturer)

Public International Law (undergraduate) King's College London (2011-2012 module leader, lecturer and tutor, 2012-13 lecturer and tutor, 2014- occasional lecturer)

Law of the Armed Conflict (LLM), Cambridge (lecturer 2006-2009, 2011-2016)

International Dispute Resolution (LLM), Auckland (2014 course convener and sole lecturer)

Public International Law (undergraduate), University of Cambridge (2006-2010 (lecturer, law of treaties), 2006-2007 (lecturer, jurisdiction and immunities)

College Lecturer, Public International Law and EU Law, Downing College, University of Cambridge (2005-2010)

Supervisor, Public International Law, University of Cambridge (2004-2005)

Conferences, Talks & Seminars

'Sir Elihu and the Art of Rhetoric', LCIL Memorial Symposium: Sir Elihu Lauterpacht QC: A celebration of his life and his work, 13 October 2017, Faculty of Law, Cambridge

'Changes to the legal framework governing decommissioning which we can or may expect as a result of Brexit', Contract Strategy for the Energy Industry: Drilling Through The Turmoil, 20 September 2017, Scottish Arbitration Centre

'Area-Based Management Tools, Including Marine Protected Areas', ASIL Meeting, Washington D.C, 12-15 April 2017, Panel session on the new treaty on areas beyond national jurisdiction

'Settlement of international disputes related to the use of natural resources under the United Nations Convention on the Law of the Sea': Comment on Judge Golitsyn's paper, Stress Testing the Law of the Sea, King's College, London, 30-31 September 2016

'Legal Uncertainty in Undelimited Areas', BIICL Event on Release of its Report on the Obligations of States under Articles 74(3) and 83(3) of UNCLOS in respect of Undelimited Areas, 22 July 2016

'Business and International Law', invited expert panel speaker, British Branch of the International Law Association, Spring Conference, 8-9 April 2016, Non-State Actors and Changing Relations in International Law

'20 Essex Street Workshop on Investment Treaty Arbitration', Slaughter and May, 31 March 2016

New Boundaries: Ethics and High Seas Marine Protected Areas', London International Boundary Conference, 1-2 December 2015

'Sanctions, International Public Policy and the Architecture of the International Legal System', Guest Speaker, Auckland University Law Review Alumni Symposium, 14 October 2015

'Arbitration under investment treaties: What it is and how to plan for it', British Embassy Guatemala's 'English Common Law for International Commerce in Latin America' Project, Arbitral Institution of the Chamber of Industry in Guatemala, 19 October 2015 and Honduran Bar Association, 21 October 2015

'Review and Interpretation of UN Sanctions', UN Sanctions in the 21st Century, University of Leiden, 26- 27 June 2015

'Technology, non-obvious warfare and the concept of "attack" in LOAC', 24th Annual SLS-BIICL Conference on Theory and International Law, 15 May 2015

'The BIOT Marine Protected Area: The Litigation Landscape’, Ministry of Defence, 14 May 2015

'Marine Protected Areas and Freedom of the High Seas', Centre for International Law, National University Singapore, 6 May 2015

'International Investment Law: The State's Perspective', Brunei Darussalem, organized by MFA for officials from various government departments and open to the public, 2 May 2015

'Introduction to investment treaties', Lee & Lee, Singapore, 5 September 2014

'The interface between public international law and commercial law', Maxwell Chambers, Singapore 4 September 2014, and Attorney General's Chambers, Singapore, 5 September 2014

'New Zealand in the International Court of Justice', 12 June 2014, Anglo-Australasian Law Society, London

'Sanctions: current issues of implementation and enforcement', Friday 14 February 2014, Lauterpacht Centre for International Law, University of Cambridge (part of the Friday lunchtime series)

'Public international law and the lex mercatoria', International Law Association, British Branch, 31 July 2013 

'Migration and the EU: Third country nationals and the construction of citizenship from above', Multilevel Implications of a Changing Concept of Citizenship, 23-24 May 2013, Pázmány Péter Catholic University Faculty of Law and Political Sciences

'Sanctions and Commercial Law', 22nd Annual Society of Legal Scholars international law section/British Institute of International and Comparative Law conference on theory and international law, 'Sanctions and Embargoes: International Law and Contemporary Practice', 29 April 2013

'Cleaning-up the rule-books - Law-making in response to marine pollution disasters', Marine Lawyers Network Conference, Marine Management Organisation, Nottingham, 27 June 2012 

'Caspian Sea Legal Study: The proposed pipeline between Turkmenistan and Azerbaijan', CIS Oil And Gas Transportation Conference: Strengthening The Oil And Gas Links Between the CIS, Europe And Asia, 13th Annual Meeting, 25-27 October 2011, Istanbul

'EU-Caspian Basin Legal Issues: The Use of Law for Strategic Ends - The proposed pipeline between Turkmenistan and Azerbaijan & EU-Iran Sanctions Law'. Keynote speech at the EU Energy Law and Policy Workshop, Florence School of Regulation, EUI

'Immunities and the Balance Between Diplomacy and Accountability', 20 Essex Street seminar to mark Sir Elihu Lauterpacht’s 60 years in International Law, October 2011

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