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.

The Limits of International Adjudication in International Environmental Law: Another Perspective on the Southern Bluefin Tuna Case

2004 ◽  
Vol 19 (2) ◽  
pp. 177-197 ◽  
Author(s):  
Tim Stephens
Keyword(s):  
Dispute Settlement ◽  
Environmental Law ◽  
Bluefin Tuna ◽  
International Courts ◽  
Environmental Threats ◽  
Legal Questions ◽  
Southern Bluefin Tuna ◽  
International Adjudication ◽  
The Impact

AbstractThe Southern Bluefin Tuna case has provoked extensive commentary examining the implications of the litigation for the settlement of controversies involving the dispute settlement mechanisms of multiple treaties. However the case has a much broader significance. Drawing upon an analysis of the impact of the litigation on the Commission for the Conservation of SBT, this article explores the role of international adjudication in securing positive environmental outcomes. The case illustrates the significance of provisional measures in responding to environmental threats. However, judicial settlement is subject to several major limitations: generally it is reactive, can only involve a few parties and can only deal with a limited set of legal questions. More fundamentally, the effectiveness of international courts or arbitral panels may be constrained by the nature of environmental instruments themselves, which often lack precision in terms of objective rules of conduct and are often deeply ambivalent in terms of their objects and purposes.

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.

The Dutch Referendum

2005 ◽  
Vol 1 (3) ◽  
pp. 393-405 ◽  
Author(s):  
Arjen Nijeboer
Keyword(s):  
Crucial Role ◽  
Ad Hoc ◽  
Political Debate ◽  
Liberal Party ◽  
National Debate ◽  
The Eu

Origin of referendum discussion in the Convention. The national debate on referenda. The crucial role of the liberal party. Referendum bill private members initiative. Referendum Act an ad hoc consultative referendum. Referendum the first opportunity for a broad political debate on the EU. Complacency and disorganised arguments of the ‘yes’ campaign. First analyses of referendum.

Part IV The Right to Reparation/Guarantees of Non-Recurrence, A The Right to Reparation, Principle 33 Publicizing Reparation Procedures

2018 ◽  
Author(s):  
Laplante Lisa J
Keyword(s):  
United Nations ◽  
Ad Hoc ◽  
Legal Framework ◽  
Historical Background ◽  
Not Given ◽  
International Courts ◽  
Specific Practice ◽  
The Right ◽  
Country Specific ◽  
Do So

Principle 33 focuses on the obligation of the State to publicize ‘ad hoc procedures’ for the distribution of reparations. The ‘publicity principle’ assures the right to compensation, restitution, non-material, symbolic reparations and other remedies and places the onus on policymakers to implement outreach campaigns that inform victims of these right and how to access them. Principle 33 emanates from the idea that ‘a reparation mechanism has little practical value if potentially eligible victims are not aware of the opportunity to make claims or are not given timely information on how to do so in a language they can understand’. After providing a contextual and historical background on Principle 33, this chapter discusses its legal framework and practice, with emphasis on United Nations guidelines and principles; international mass claims processes; international courts, commissions and committees; and country specific practice.

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 The role of ex aequo et bono in ICSID arbitration

2021 ◽  
Vol 3 (1) ◽  
pp. 147-164
Author(s):  
Marko Jovanović
Keyword(s):  
Dispute Settlement ◽  
Ad Hoc ◽  
To Come ◽  
The Way

This article examines the role of the principle of ex aequo et bono in arbitration before the International Centre for Settlement of Investment Disputes (ICSID). At the outset, the author remarks that the cases in which the application of ex aequo et bono was agreed upon by the parties are very scarce. Nevertheless, despite that scarcity, it is possible to draw some conclusions on the way in which equity was invoked by the parties and applied by the ICSID tribunals. Two scenarios are analyzed in particular: the use of ex aequo et bono as the applicable framework for dispute settlement and the reliance on ex aequo et bono in an attempt to nullify the award before an ad hoc Committee. The author concludes that the reluctance of the parties to agree on ex aequo et bono may be explained by the lack of predictability of outcomes that is inherent to this source of law. On the contrary, it might be expected that the parties will continue trying to come up with creative arguments aimed at proving the unauthorized application of ex aequo et bono by the tribunals in their attempts to annul the awards on the basis of excess of powers.

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.

Beyond Dispute: International Judicial Institutions as Lawmakers

2011 ◽  
Vol 12 (5) ◽  
pp. 979-1003 ◽  
Author(s):  
Armin von Bogdandy ◽  
Ingo Venzke
Keyword(s):  
International Law ◽  
International Courts ◽  
International Legal Order ◽  
Normative Expectations ◽  
Legal Structures ◽  
International Adjudication ◽  
The Individual ◽  
And Shifts ◽  
Legal Normativity

The increasing number of international judicial institutions, producing an ever-growing stream of decisions, has been one of the dominant features of the international legal order of the past two decades. The shift in quantity has gone hand in hand with a transformation in quality. Today, it is no longer convincing to only think of international courts in their role of settling disputes. While this function is as relevant as ever, many international judicial institutions have developed a further role in what is often called global governance. Their decisions have effects beyond individual disputes. They exceed the confines of concrete cases and bear on the general legal structures. The practice of international adjudication creates and shifts actors' normative expectations and as such develops legal normativity. Many actors use international judicial decisions in similar ways as they do formal sources of international law. To us, this role of international adjudication beyond the individual dispute is beyond dispute.

The "Real Dispute" in the Southern Bluefin Tuna Case : a Scientific Dispute?

2001 ◽  
Vol 16 (4) ◽  
pp. 571-601
Author(s):  
Caroline E Foster
Keyword(s):  
Dispute Resolution ◽  
Ad Hoc ◽  
Scientific Evidence ◽  
Bluefin Tuna ◽  
The Real ◽  
International Dispute ◽  
Southern Bluefin Tuna ◽  
Scientific Dispute ◽  
International Adjudication

AbstractOn 4 August 2000 a LOSC Annex VII ad hoc arbitral tribunal issued its award in the Southern Bluefin Tuna case brought by Australia and New Zealand against Japan. It found it had no jurisdiction under the LOSC in respect of the SBT dispute. The decision has been controversial. This paper identifies the idea, prevalent in many parts of the pleadings in the case, that the "real dispute" in the case lay under the 1993 Convention, and discusses the associated idea that the dispute was scientific in character. Questions raised by the scientific issues in the case are explored, including what may constitute good or "best" scientific evidence, the suitability of scientific disputes for international adjudication, the appropriateness of precautionary approaches, the validity of "margins of appreciation", and the most appropriate forms of dispute resolution for cases involving science. The need for greater attention to be devoted to issues raised by the role of science in international dispute resolution may partly explain the strength of the undercurrent in the SBT case which pushed towards the view that there was only one "real dispute", which fell under the 1993 Convention.

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