Introduction

2007 ◽  
pp. 1-14
Author(s):  
Chester Brown
Keyword(s):  
Dispute Settlement ◽  
Common Law ◽  
Case Law ◽  
Third Party ◽  
Homogeneous Body ◽  
Short Introduction ◽  
International Courts ◽  
International Dispute ◽  
History Of ◽  
International Adjudication

This chapter gives a short introduction to the history of international dispute settlement by third-party adjudication. It notes that there is a gap in the existing literature, being an examination of procedure and remedies before different international courts, and an answer to the question of whether the same procedural rules obtain, and the same remedies are available, before different international judicial bodies. It presents the book's central thesis — that international courts often adopt common approaches to questions of procedure and remedies, which leads to increasing commonality in the case law of international courts. It then explains that the term ‘common law of international adjudication’ refers to the emergence of an increasingly homogeneous body of rules applied by international courts and tribunals relating to procedure and remedies. It then defines the terms ‘procedure’ and ‘remedies’. It also covers certain selected aspects of international adjudication, and reviews the jurisprudence of certain selected international courts and tribunals.

Conclusion

2007 ◽  
pp. 260-262
Author(s):  
Chester Brown
Keyword(s):  
Dispute Settlement ◽  
Common Law ◽  
International Courts ◽  
International Dispute ◽  
Common Practices ◽  
Solid Foundation ◽  
The Common ◽  
International Adjudication ◽  
Further Development ◽  
Cross Fertilization

This concluding chapter notes that the book has asked whether international courts, in interpreting and applying their powers over procedure and remedies, have considered and sought to adopt the practices of other international courts. The book examined the sources of procedural and remedial competences of the principal international courts, and analysed the tools available to international courts to engage in cross-fertilization on issues relating to procedure and remedies. It then examined the degree of common practice with respect to several aspects of international adjudication: rules of evidence, the power to grant provisional measures, the power to interpret and revise judgments, and the remedies available in international adjudication. It then proposed various factors which explain the emergence of common practices, and noted limitations to its further development. Finally, it reviewed the practical and theoretical implications of the common law of international adjudication, concluding that it serves as a solid foundation for the further development of a harmonious system of international dispute settlement.

scholarly journals Comity and International Courts and Tribunals

2018 ◽  
Author(s):  
Thomas Schultz ◽  
Niccolo Ridi
Keyword(s):  
Analogical Reasoning ◽  
Dispute Settlement ◽  
Common Interest ◽  
International Courts ◽  
Procedural Law ◽  
International Dispute ◽  
History Of ◽  
International Adjudication ◽  
The Individual ◽  
Article 5

Cornell International Law Journal: Vol. 50 : No. 3 , Article 5.This study seeks to clarify the importance, current and potential, of the use of comity by international courts and tribunals. Our findings support the idea that comity might be an emerging principle of procedural law, though agreement on its exact meaning— or unequivocal choices among its many connotations— still tends to be uncommon. We submit that, as long as other solutions are not in place, the principle can be successfully employed to assist international courts and tribunals in mediating jurisdictional conflicts between themselves by balancing coordination efforts and the demands of justice in the individual cases.Comity may serve as a meta-principle of coordination between international judicial bodies, to be employed in the pursuit of the common interest to an efficient and fair system of international dispute settlement. There are strong reasons militating in favour of this proposition: international tribunals, by and large, possess the powers necessary to exercise it; international judges and arbitrators know how to use it; and its long history of applications at the domestic level suggests that it can be employed successfully for a variety of purposes.We also submit the hunch that comity may most likely be employed as a central principle for further aspects of the coordination of international adjudication, for instance informing the sound use of analogical reasoning and precedent-borrowing process. Further study will be required to assess the potential of comity in this context. We have, so far, restricted ourselves to a simpler and more crucial task, seeking to resituate the principle of comity as one on which to rely for the resolution of different types of conflicts between international jurisdictions, and to question the traditional assumption that it is just an unhelpful complication: its history and rediscovery suggest otherwise.

The Emergence of a Common Law of International Adjudication against a Background of Proliferation

2007 ◽  
pp. 15-34
Author(s):  
Chester Brown
Keyword(s):  
International Law ◽  
Common Law ◽  
Third Party ◽  
International Courts ◽  
The Past ◽  
The Creation ◽  
Jurisdictional Competition ◽  
International Adjudication ◽  
Fragmentation Of International Law

This chapter covers the proliferation of international courts and tribunals, and the perceived problem of fragmentation of international law. It first describes the proliferation of international judicial bodies. This has seen the creation of more than a dozen new international adjudicatory bodies in the past two decades. It then proposes possible reasons for the growth in the number of international courts and tribunals. The principal reasons include the erosion of the traditional reluctance to submit disputes to third-party adjudication, and the effects of globalization. It then turns to the effects of proliferation, and explains that it can cause increased jurisdictional competition (overlapping jurisdictions) among international courts and tribunals, and also the emergence of doctrinal inconsistencies in international law. This is particularly so, in light of international jurisprudence which suggests that international courts are ‘self-contained systems’. It then briefly reviews the International Law Commission's work on fragmentation.

scholarly journals Uncertainty and international adjudication

2018 ◽  
Vol 32 (01) ◽  
pp. 131-148 ◽  
Author(s):  
Arthur Dyevre
Keyword(s):  
Dispute Settlement ◽  
The State ◽  
State Party ◽  
International Courts ◽  
Court Of Justice ◽  
Strategic Model ◽  
European Court ◽  
International Dispute ◽  
International Adjudication ◽  
Undesirable Outcome

AbstractIn deciding whether to rule against a state party, international courts regularly confront a compliance dilemma: declare the state in breach of the international regime but with the risk that it will defy the court’s authority; or defer to the state but at the price of acquiescing to an unjust or undesirable outcome. Specifically, international adjudicators must solve this dilemma in a context of uncertainty, that is, without knowing with exactitude whether or not the state will prefer complying with an adverse ruling over overt defiance. I use a simple strategic model to cast light on this aspect of the compliance dilemma. Building off from the model’s insights, I then discuss the practices, doctrinal tactics and institutional mechanisms apt to reduce uncertainty and minimize state defiance. I highlight, in particular, the advantages of defiance avoidance mechanisms that help create informational feedback loops like test-the-water dicta and double-tier review. I illustrate how these mechanisms have been deployed by two of the world’s most powerful international courts, the European Court of Justice and the European Court of Human Rights. Finally, I consider the limitations of these mechanisms along with the possibility for other international dispute settlement bodies to replicate them.

Part III Security Governance Tools, Ch.40 International Courts and Tribunals and Violent Conflict

2021 ◽  
Author(s):  
Tams Christian J
Keyword(s):  
Legal Framework ◽  
Violent Conflict ◽  
International Courts ◽  
Security Governance ◽  
International Dispute ◽  
Governance Tools ◽  
History Of ◽  
International Adjudication ◽  
Violent Conflicts ◽  
Over Time

This chapter examines international adjudication and arbitration, assessing the diverse roles of international courts and tribunals (ICaTs) in relation to violent conflicts. It shows that, over time, ICaTs have come to render decision upon decision, but—contrary to the expectations of early arbitration movements—hardly ever prevent ‘wars between nations’. Their mandates have been expanded, but typically only cover aspects of violent conflicts. While such aspects are today increasingly submitted to arbitration or adjudication, ‘conflict litigation’ remains controversial and challenges the authority of ICaTs. As the chapter demonstrates, the significance of arbitration and adjudication over questions of violent conflict has varied over time and forms part of the general history of international dispute resolution. Having surveyed this general history, the chapter sketches out the evolving legal framework governing courts and conflicts. It discusses which aspects of violent conflicts are addressed by ICaTs under contemporary international law and highlights current challenges of ‘conflict litigation’.

Let’s (Not) (Dis)Agree to Disagree!? Some Thoughts on the ‘Dispute’ Requirement in International Adjudication

2020 ◽  
Vol 19 (1) ◽  
pp. 79-106
Author(s):  
Andreas Kulick
Keyword(s):  
Dispute Settlement ◽  
Case Law ◽  
The Other ◽  
International Court Of Justice ◽  
International Courts ◽  
Court Of Justice ◽  
Other Hand ◽  
International Court ◽  
International Adjudication

Abstract International courts and tribunals only enjoy jurisdiction to settle a ‘dispute’. ‘Dispute’ requires disagreement. However, what if the parties disagree over whether there actually exists such disagreement? What if, before the International Court of Justice, the respondent argues that there is no ‘dispute’ because it declined to react to the applicant’s contentions? In other words, can a disputing party avoid a dispute by playing dead? On the other hand, where does one draw the line in order to prevent the applicant from seizing an international court or tribunal where there is in fact no real disagreement between the parties? This article critically assesses the Court’s case law on the ‘dispute’ requirement and argues for a fragmented approach to ‘dispute’ in international adjudication that carefully defines this jurisdictional requirement along the lines of the judicial function of the respective international judicial dispute settlement forum.

International Dispute Settlement

2014 ◽  
Author(s):  
Karen J. Alter
Keyword(s):  
Dispute Settlement ◽  
Nonstate Actors ◽  
International Courts ◽  
Constitutional Review ◽  
International Dispute ◽  
Institutional Actors

This chapter looks at the seventeen international courts (ICs) with the formal jurisdiction to adjudicate disputes pertaining to a broad range of issues. Fourteen of these ICs have jurisdiction to adjudicate disputes between state parties; thirteen have jurisdiction regarding disputes involving nonstate actors (international institutional actors or private litigants). Quite often the dispute settlement role primarily binds others to follow the terms of the legal agreement, and quite often the IC has also been delegated other roles. Indeed, all but three of the ICs with a formal dispute settlement jurisdiction also have been delegated either enforcement, administrative, or constitutional review roles. These facts help explain why more often than not ICs have compulsory jurisdiction for their dispute settlement role.

Tracing at Law

2016 ◽  
Author(s):  
Richard Calnan
Keyword(s):  
Common Law ◽  
Case Law ◽  
Third Party

This chapter explains what tracing is. Differing descriptions of the expression are discussed. Tracing does not seek to examine intention; tracing imposes a proprietary interest. The chapter discusses the principles of tracing at common law and how a person becomes a legal owner of a substitute asset. In particular, the rules as to indentification of a substitute asset are discussed. The chapter contains a detailed discussion of the case law on tracing at common law. Attempts to distinguish tracing from ‘following’ are discussed. The chapter distinguishes tracing against the wrongdoer from tracing against a third party.

Law Making

2019 ◽  
pp. 206-238
Author(s):  
John Baker
Keyword(s):  
Nineteenth Century ◽  
Common Law ◽  
Case Law ◽  
Symbiotic Relationship ◽  
Legal Change ◽  
Inns Of Court ◽  
History Of ◽  
The Common ◽  
Common Learning ◽  
Law Making

This chapter examines the history of case-law, legislation, and equity, with particular reference to legal change. The common law was evidenced by judicial precedent, but single decisions were not binding until the nineteenth century. It was also rooted in professional understanding, the ‘common learning’ acquired in the inns of court. It was based on ‘reason’, operating within a rigid procedural framework. Legal change could be effected by fictions, equity, and legislation, but (except during the Interregnum) there was little systematic reform before the nineteenth century. Legislation was external to the common law, but it had to be interpreted by common-law judges and so there was a symbiotic relationship between statute-law and case-law. Codification has sometimes been proposed, but with limited effect.

7. Privity of contract and third party rights

2021 ◽  
pp. 307-358
Author(s):  
Robert Merkin ◽  
Séverine Saintier
Keyword(s):  
Common Law ◽  
Case Law ◽  
Contract Law ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
The Subject ◽  
The Common ◽  
Contractual Obligations ◽  
Privity Of Contract

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter examines privity of contract, its relationship with consideration, and the ability of third parties to enforce contractual provisions for their benefit. The doctrine of privity of contract provides that the benefits of a contract can be enjoyed only by the parties to that contract and only parties can suffer the burdens of the contract. At common law, third party beneficiaries could not enforce a contractual provision in their favour so various devices were employed seeking to avoid privity. Statute now allows for direct third party enforcement but in limited circumstances. This chapter examines the background to privity and the attempted statutory reform in the Contracts (Rights of Third Parties) Act 1999 as it has been interpreted in the case law. The chapter also discusses the common law means of avoiding privity as illustrated by the case law, e.g. agency, collateral contracts, and trusts of contractual obligations. Finally, it assesses the remedies available to the contracting party to recover on behalf of the third party beneficiary of the promise, including the narrow and broad grounds in Linden Gardens Trust. It concludes by briefly considering privity and burdens—and the exceptional situations where a burden can be imposed on a person who is not a party to the contract.

Sign in / Sign up

Export Citation Format

Share Document