Protecting Its Exclusive Jurisdiction: The Mox Plant-judgment of the ECJ

2006 ◽  
Vol 5 (3) ◽  
pp. 479-493 ◽  
Author(s):  
Nikolaos Lavranos
Keyword(s):  
Dispute Settlement ◽  
Settlement System ◽  
Member States ◽  
International Courts ◽  
Community Law ◽  
Eu Member States ◽  
Exclusive Jurisdiction ◽  
Community Institutions ◽  
Dispute Settlement System ◽  
The Right

AbstractIn the judgment in Case C-459/03, Commission v Ireland, the ECJ for the first time explicitly determined the scope of its exclusive jurisdiction based on Article 292 EC. The ECJ interpreted its jurisdiction very expansively in order to protect its exclusive jurisdiction to interpret and apply Community law. Accordingly, EU Member States involved in a dispute that potentially raises issues of Community law are not allowed to bring the case before a dispute settlement body other than the ECJ. Furthermore, Member States have the duty to inform and consult the Community institutions prior of bringing a case before another dispute settlement body. Otherwise, the ECJ claims, the danger arises that the autonomy of the Community legal order and its exclusive jurisdiction may adversely be affected by rulings of other international courts or tribunals in disputes that also touch on EC law. With this judgment the ECJ substantially restricted the right of the EU Member States to select a dispute settlement system of their choice. Moreover, this expansive interpretation by the ECJ of its exclusive jurisdiction limits the exercise of the jurisdiction of other international courts and tribunals that are called upon to adjudicate on a dispute that possibly involves Community law.It is submitted that with this extensive understanding of its exclusive jurisdiction, the ECJ is unduly restricting the sovereign right of the Member States to select the dispute settlement system of their choice as well as interfering in the exercise of the jurisdiction of the other international courts and tribunals.

scholarly journals The European Court of Justice: What are the Limits of its Exclusive Jurisdiction?

2009 ◽  
Vol 16 (3) ◽  
pp. 291-314 ◽  
Author(s):  
Tobias Lock
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Member States ◽  
International Courts ◽  
Community Law ◽  
Exclusive Jurisdiction ◽  
Court Of Justice ◽  
European Court ◽  
Academic Discussion

The article explores the limits of the ECJ's exclusive jurisdiction by addressing two main issues: firstly, whether there are exceptions to that exclusivity, such as the application of the CILFIT case law or the exclusion of Community law from the dispute. Secondly, it asks whether other international courts must respect the ECJ's jurisdiction over a case. The article commences by briefly discussing the ECJ's exclusive jurisdiction as it was established in Opinion 1/91 and the Mox Plant-Case and draws conclusions from this case law. It then addresses the above-mentioned points and comes to the conclusion that there are generally no exceptions to the ECJ's exclusive jurisdiction and that the only option open to Member States is to exclude Community law from a dispute (and even that option is subject to limitations). Furthermore, after exploring several routes advanced in the academic discussion, the article comes to the conclusion that other courts must respect the ECJ's jurisdiction and as a consequence declare the case inadmissible.

Substance and Style—How the WTO Adjudicators Legitimize their Decisions

2018 ◽  
Author(s):  
Christiane Gerstetter
Keyword(s):  
World Trade Organization ◽  
World Trade ◽  
Dispute Settlement ◽  
Judicial Decision ◽  
Settlement System ◽  
Member States ◽  
Judicial Decisions ◽  
Wto Dispute Settlement ◽  
The World ◽  
Dispute Settlement System

This chapter analyses how the World Trade Organization (WTO) dispute settlement bodies legitimize their decisions and by implication also the WTO Dispute Settlement System as well as the WTO as an institution more broadly. The author argues there are two relevant dimensions for understanding how judges legitimize judicial decisions: the substantive outcomes of cases, that is who wins and loses and what interpretations are adopted, and the way a judicial decision is justified. She concludes that the WTO dispute settlement bodies act strategically in order to win the acceptance of the member states, and ultimately legitimize this dispute settlement system as a judicial entity.

The MOX Plant and IJzeren Rijn Disputes: Which Court Is the Supreme Arbiter?

2006 ◽  
Vol 19 (1) ◽  
pp. 223-246 ◽  
Author(s):  
NIKOLAOS LAVRANOS
Keyword(s):  
International Law ◽  
Arbitral Tribunal ◽  
Member States ◽  
International Courts ◽  
Community Law ◽  
Exclusive Jurisdiction ◽  
The Creation ◽  
Fragmentation Of International Law ◽  
The Unclos

The MOX Plant and IJzeren Rijn disputes illustrate the growing problem of concurrent jurisdiction between international courts and tribunals and the ECJ. This article argues that in cases in which Community law is involved in a dispute between two EC member states, international courts and tribunals must accept the exclusive jurisdiction of the ECJ under Article 292 of the EC Treaty to decide these cases. However, only the UNCLOS arbitral tribunal in the MOX Plant case stayed the proceedings and requested that the parties first find out whether the ECJ had jurisdiction, whereas the OSPAR as well as the IJzeren Rijn arbitral tribunals rendered their awards despite the implications of Article 292. Thus it appears that every arbitral tribunal decides the issue of Article 292 as it sees fit. This situation, it is argued, requires the creation of some sort of hierarchy between the growing number of international courts and tribunals in order to co-ordinate and harmonize their decisions so as to avoid a fragmentation of international law.

Competing Jurisdictions Between MERCOSUR and WTO

2008 ◽  
Vol 7 (2) ◽  
pp. 205-234 ◽  
Author(s):  
Nikolaos Lavranos ◽  
Nicolas Vielliard
Keyword(s):  
Dispute Settlement ◽  
Arbitral Tribunal ◽  
Settlement System ◽  
International Courts ◽  
Settlement Systems ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Wto Appellate Body ◽  
Dispute Settlement System ◽  
Different Levels

AbstractThe wider issues raised by the Brazilian Tyres case are discussed in this contribution. Regarding the institutional aspects, this case examines the difficulties between regional dispute settlement systems and the global WTO dispute settlement system. In particular, the WTO Appellate Body showed no deference towards the prior report of the MERCOSUR Arbitral Tribunal. Indeed, the WTO Appellate Body is espousing a supremacy of WTO law – not only vis-à-vis regional dispute settlement bodies, but also regarding WTO panels. It is argued that this attitude is not sustainable in the light of the increasing proliferation of international courts and tribunals, which inevitably results into disputes being adjudicated by different courts and tribunals at different levels. Regarding the substantive aspects, this case is a prime example of the difficulties of balancing non-trade interests and trade interests. At the end, trade interests superseded the nontrade interests. It is argued that the way Article XX GATT has been interpreted and applied by the WTO Appellate Body leaves states insufficient room to address urgent environmental and health problems by restricting trade. It is argued that in this case Brazil's non-trade interests should have been given preference over the trade interests of the EC and Uruguay.

PUBLIC HEARINGS AT THE WTO APPELLATE BODY: THE NEXT STEP

2010 ◽  
Vol 59 (4) ◽  
pp. 1079-1098
Author(s):  
Alberto Alvarez-Jiménez
Keyword(s):  
Dispute Settlement ◽  
Good Reason ◽  
Positive Development ◽  
Settlement System ◽  
Exclusive Jurisdiction ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
International Adjudication ◽  
Wto Appellate Body ◽  
Dispute Settlement System

The WTO Appellate Body has so far authorized public appeal hearings as the exception, not the rule: it is limited to those instances in which the main parties request it. Such authorization constitutes a very positive development for the WTO dispute settlement system, for it enhances the transparency of the system at its highest stage. Indeed, the Appellate Body is becoming a leading actor in the formation of international law1 owing to the fact that it is the most active international court of the world, the relevance of the issues it deals with and the fact that it is at the apex of a dispute settlement system with permanent and exclusive jurisdiction over 153 States. Nonetheless, it is not in tune with inter-state international adjudication where the trend concerning hearings is, for good reason, geared towards openness and transparency, not privacy, as the rule.

Settlement of Disputes Relating to the Delimitation of the Outer Continental Shelf: The Role of International Courts and Arbitral Tribunals

2006 ◽  
Vol 21 (3) ◽  
pp. 347-362 ◽  
Author(s):  
Vicente Marotta Rangel
Keyword(s):  
Continental Shelf ◽  
Dispute Settlement ◽  
Settlement System ◽  
Outer Continental Shelf ◽  
International Courts ◽  
Judicial Control ◽  
Dispute Settlement System ◽  
State's Rights ◽  
Settlement Of Disputes

AbstractThis presentation gives an assessment of the actual judicial control concerning the delimitation of the continental shelf. Before interpreting the role of International Courts and Arbitral Tribunals, the author gives a brief overview over the different categories of delimitation, the coastal state's rights over its continental shelf and outlines historic precedents of international disputes. Today, the Convention provides an comprehensive dispute settlement system. This system will be illuminated and reviewed by the presentation with special reference to the judicial control over the Commission's recommendations.

scholarly journals MEDIATION IN THE DISPUTE SETTLEMENT SYSTEM UNDER THE EU- UKRAINE ASSOCIATION AGREEMENT 2014

2020 ◽  
Keyword(s):  
Dispute Resolution ◽  
Dispute Settlement ◽  
Dispute Settlement Mechanism ◽  
Settlement System ◽  
Association Agreement ◽  
Arbitration Procedure ◽  
Dispute Settlement System ◽  
The Right ◽  
Settlement Mechanism ◽  
The Eu

The article examines the system of dispute settlement under the Association Agreement between Ukraine and the EU of 2014, which may arise from the lack of a unified approach to interpreting the provisions of the Agreement or fair use, and due to the improper performance of obligations by one of the Parties. Each individual dispute resolution mechanism is described. In particular, a general dispute settlement mechanism extending to the provisions of the Agreement on Deep and Comprehensive Free Trade Area between Ukraine and the EU (DCFTA), and a dispute settlement mechanism within the DCFTA, implemented through consultation, arbitration or arbitration, are explored. It is stated that the general dispute settlement mechanism is based on a "traditional" diplomatic approach, in which the Association Council, consisting of members of the Government of Ukraine and members of the European Commission, is a key dispute resolution body. The DCFTA dispute settlement mechanism is more complex. Attention is drawn to the fact that the consultation mechanism, which by its content provides for negotiation, can act as a separate dispute settlement procedure or as a stage preceding the arbitration procedure or mediation, if the parties failed to reach a mutually agreed solution. The arbitration procedure involves the consideration of the dispute by a panel of three independent arbitrators whose decisions are binding on the parties. If the respondent Party does not comply with the decision and does not offer temporary compensation, the other Party has the right to apply temporary protection measures, which stipulate the suspension of its obligations. Another mechanism for dispute resolution is mediation, which aims to facilitate a mutually agreed solution through comprehensive and expedited procedures through a mediator. The features of mediation in the dispute settlement system under this Agreement are identified. Attention is drawn to the benefits of mediation over other dispute resolution tools provided by the UA. In particular, unlike arbitration, any dispute concerning the provisions of Title IV of the AA may be the subject of mediation. In addition, the mediator does not have the right to submit a final dispute resolution to the parties compared to the arbitrators. Its purpose is to facilitate the adoption of a mutually agreed decision taken by the Parties as a result of their independent consent. Such a feature makes the mediation mechanism a more attractive and flexible way of resolving a conflict between the Parties, which is not always ready to commit itself to a legally binding solution. In addition, jointly finding a mutually beneficial solution can help solve problems in interpreting and implementing the terms of the agreement in a more effective way.

The ‘TBT Agreement’: A Perfect Tool to Monitor Regulatory Activities Worldwide

2001 ◽  
Vol 4 ◽  
pp. 273-292
Author(s):  
Rodolphe Muñoz
Keyword(s):  
Dispute Settlement ◽  
Technical Barriers To Trade ◽  
Binding Mechanism ◽  
Settlement System ◽  
Tokyo Round ◽  
Member States ◽  
Long Time ◽  
Dispute Settlement System ◽  
Force Member

The Technical Barriers to Trade (hereinafter TBT) Agreement was negotiated at the Tokyo Round (1973–1979). However, at that time the GATT rules comprised no legally binding mechanism to force Member States to respect their obligations. Indeed, Member States remained free to defer the dispute settlement system. Consequently, for a very long time the TBT Agreement remained a dead letter.

The Cross-Fertilization of UNCLOS, Custom and Principles Relating to Procedure in the Jurisprudence of UNCLOS Courts and Tribunals

2019 ◽  
Vol 22 (1) ◽  
pp. 142-170
Author(s):  
Elena Ivanova
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Vienna Convention ◽  
Settlement System ◽  
International Courts ◽  
The Law ◽  
The Cross ◽  
Dispute Settlement System ◽  
Different Sources ◽  
Cross Fertilization

Cross-fertilization of international law entails interaction of norms in international law and can occur in the context of interaction between different sources of law; different branches of international law or different subject-matter areas; and interaction between a treaty norm belonging to a one area of international law and a customary norm arising from another area of international law. There are different avenues for cross-fertilization of international law: it can result from the application of Art. 31 (3) (c) of the Vienna Convention on the Law of Treaties (VCLT)1 in the process of interpreting a particular treaty, from the application of other rules of international law together with a particular treaty or from reference to the jurisprudence of other international courts or tribunals by adhering to the approach adopted in this jurisprudence. This article examines the question of cross-fertilization of international law in the context of the jurisprudence of the courts and tribunals operating within the dispute settlement system established under the UN Convention on the Law of the Sea (hereinafter ‘UNCLOS’ or ‘Convention’).2 It will demonstrate how these adjudicatory bodies have employed Art. 31 (3) (c) VCLT, Art. 293 UNCLOS which explicitly enables them to apply other rules of international law not incompatible with the Convention, and the international jurisprudence in order to interpret and apply the UNCLOS while situating it the broader context of international law. Note will be taken of UNCLOS provisions incorporating or referring to other rules of international law which also contribute to the cross-fertilization of international law.

The ‘TBT Agreement’: A Perfect Tool to Monitor Regulatory Activities Worldwide

2001 ◽  
Vol 4 ◽  
pp. 273-292
Author(s):  
Rodolphe Muñoz
Keyword(s):  
Dispute Settlement ◽  
Technical Barriers To Trade ◽  
Binding Mechanism ◽  
Settlement System ◽  
Tokyo Round ◽  
Member States ◽  
Long Time ◽  
Dispute Settlement System ◽  
Force Member

The Technical Barriers to Trade (hereinafter TBT) Agreement was negotiated at the Tokyo Round (1973–1979). However, at that time the GATT rules comprised no legally binding mechanism to force Member States to respect their obligations. Indeed, Member States remained free to defer the dispute settlement system. Consequently, for a very long time the TBT Agreement remained a dead letter.

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