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.

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.

Implications of a Common Law of International Adjudication

2007 ◽  
pp. 238-259 ◽  
Author(s):  
Chester Brown
Keyword(s):  
Common Law ◽  
International Courts ◽  
The Common ◽  
International Adjudication

This chapter argues that the emergence of a common law of international adjudication has significant practical and theoretical implications. It then considers whether the common law of international adjudication can inform the response of international courts to issues which arise as a result of proliferation. In this regard, the chapter examines whether international courts have a power to dismiss proceedings summarily, either for manifest lack of jurisdiction, or abuse of process; the power to suspend proceedings; and the power to enjoin parties from pursuing parallel proceedings. The chapter then turns to the theoretical implications of the common law of international adjudication, and suggests that international courts do not regard themselves as ‘self-contained systems’, but rather as forming part of a community whose procedures and remedies have much in common. This evidences the existence of systemic features in international adjudication.

A Common Law of International Adjudication: Reasons and Limitations

2007 ◽  
pp. 225-237
Author(s):  
Chester Brown
Keyword(s):  
Small Group ◽  
Common Law ◽  
International Courts ◽  
International Court ◽  
The Common ◽  
International Adjudication

This chapter suggests reasons for the emergence of the common law of international adjudication. The factors that are relevant include the similar drafting of the constitutive instruments of international courts, the ability of international courts to reach similar interpretations of their constitutive instruments, and the operation of the doctrine of precedent. Further reasons include the existence of inherent powers, the similar functions of international courts, and also the fact that there is a relatively small group of international lawyers that appear before and sit on international courts. There are, however, limitations to the development of a common law of international adjudication, such as the particular drafting of constitutive instruments, the specific functions of different international courts, the different relationship between each international court and the parties before it, and also that it may not be desirable from a normative viewpoint for international courts to adopt common approaches in all cases, for specific procedures may be desirable in certain circumstances.

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.

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.

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.

Community Interests in International Adjudication

2018 ◽  
Author(s):  
Eyal Benvenisti
Keyword(s):  
Crucial Role ◽  
Recursive Function ◽  
Dispute Settlement ◽  
Ad Hoc ◽  
Focal Points ◽  
International Courts ◽  
Legal Obligations ◽  
International Adjudication ◽  
Do So

The chapter examines the extent to which international courts and tribunals can take community interests into consideration and develop community obligations. It explores the significance of this distinction between the ad hoc dispute-settlement tribunals and standing courts with jurisdiction to adjudicate multiple cases, and argues that the recursive function transforms international courts into global lawmakers that weave together a system of norms with secondary rules of recognition. International tribunals serve a crucial role of coordinating the behavior of state and nonstate actors by creating focal points that define the parties’ legal obligations and stabilize expectations. Moreover, the chapter argues that because of this function international courts are uniquely situated to take community interests into account, and they often, if not always, do so. This implies that if properly insulated from pressures and prejudices, international adjudicators are institutionally inclined to promote community obligations.

Dispute Settlement and Fresh Water

2021 ◽  
pp. 258-322
Author(s):  
Laurence Boisson de Chazournes
Keyword(s):  
Fresh Water ◽  
Natural Resource ◽  
Water Scarcity ◽  
Dispute Settlement ◽  
Case Law ◽  
Water Law ◽  
International Courts ◽  
Access To Water ◽  
Cross Fertilization ◽  
Inter State

The resolution of disputes related to issues of fresh water scarcity, degradation, and access to water are evident in practice. There is a staggering diversity of institutions with judicial or quasi-judicial authority over these matters, as well as diplomatic means which can help settle these various disputes. A trend towards variation and multiplication of available mechanisms for resolving water-related disputes can be observed. As a consequence of both inter-state and mixed-party disputes concerning water, international courts and tribunals have amassed growing bodies of decisions in water law, and their reliance on the case law of other jurisdictions suggests an evolving harmonization in this field. This cross-fertilization among traditional dispute settlement bodies has progressed concurrently with the development of novel procedures tailored to the uniquely collective interests at stake in natural resource disputes.

The Problem with Public Morals

2019 ◽  
Vol 10 (4) ◽  
pp. 622-655
Author(s):  
Caroline E Foster
Keyword(s):  
Dispute Settlement ◽  
Free Trade Agreements ◽  
Trade Agreements ◽  
Present Form ◽  
Societal Values ◽  
International Economic Law ◽  
International Dispute ◽  
Policy Objectives ◽  
International Adjudication

Abstract Empirical study reveals that the methods employed for identifying public morals and societal values in international dispute settlement seldom capture them directly. Rather what we see are governmentally mediated representations of these morals and values. Accepting such representations masks diversity in moral views and societal values within populations, assumes that governments properly represent populations on matters of conscience, and may endorse the characterization of social policies as an embodiment of public morality even where they are in tension with accepted human rights. The underlying difficulty appears to be that public morals defences entered international economic law at a time predating the current highly legalized dispute settlement processes with which we are now familiar, and that they are unsuited by nature to international adjudication in its present form. Contrastingly, the idea of legitimate public policy objectives featuring in certain recently negotiated regional free trade agreements poses fewer concerns of this nature.

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