Towards the Responsible Management of Disputes in Southeast Asia

Author(s):  
See Seng Tan

This chapter explores how regional responsibility is expressed in the context of Southeast Asia’s creep towards the pacific settlement of trade and territorial disputes. It examines the nexus between sovereignty and responsibility, which is also partly manifested in the way regional countries have coalesce around the notion of a rules-based order in the Asia-Pacific, where responsible stakeholders presumably abide by rules-based governance, consensually agreed codes of interstate conduct and resort to peaceful means of dispute settlement. This includes ASEAN’s slow evolution towards a rules-based regional governance and a ‘legal personality’ in the form of the ASEAN charter. It also looks at the increasing reliance by Southeast Asian countries on international dispute settlement regimes and mechanisms as means, such as mediation, reconciliation, arbitration and/or adjudication, for resolving their disputes over trade and territory. Crucially, increasing reliance on peace means of dispute resolution does not automatically lead to a concomitant reduction in conflicts and disputes between regional countries; indeed, it might even engender more disputes because governments are now encouraged to raise issues in the mutual expectation that contending parties are unlikely to resort to war to settle their conflicts.

2020 ◽  
Vol 22 (3-4) ◽  
pp. 471-486
Author(s):  
Marco Benatar

Abstract Fisheries are of vital concern to associated states and dependent territories located in diverse regions ranging from the Pacific to the Atlantic. The special characteristics of these actors have led to innovative international law-making, including the terms that have been agreed within regional fisheries management organizations and arrangements to facilitate representation of non-metropolitan territories’ interests. The question may be raised whether similar innovations can be found in the field of international dispute resolution. The aim of this brief article is to consider some linkages between associated states and dependent territories on the one hand and international dispute settlement concerning fishing on the other. Four such connections will be examined in turn: access to court, representation in proceedings, applicable law in proceedings, and the territorial exclusion of disputes.


Author(s):  
Astrid Kjeldgaard-Pedersen

Chapter 4 discusses international claims, that is, claims arising out of injury inflicted upon an individual by a foreign State in violation of international law. Such claims may be enforced either through diplomatic protection or by granting the injured individual himself the right to bring a case against the foreign State before an international dispute settlement body. The common idea is that claims of individuals against foreign States were solely asserted through diplomatic protection before the Second World War, whereas the right of individuals to petition international courts independently is a post-1945 phenomenon. By studying international claims practice in three historical periods (before the First World War, the interwar period, and after the Second World War), the present chapter tests this account against positive international law, and inquires whether the concept of international legal personality played a role in the contracting States’ choice of one method of dispute resolution over the other.


1976 ◽  
Vol 70 (2) ◽  
pp. 219-241 ◽  
Author(s):  
Eric Stein ◽  
G. Joseph Vining

In an international legal order dominated by states, the individual citizen is generally viewed as lacking international legal personality. It is true with little exception that an individual cannot appear in an international forum, political or judicial, to press his rights. Despite the dramatically increased emphasis upon international protection of basic human rights, individuals have been given access to international dispute-settlement machinery in only a few isolated instances within the United Nations system, and on a regional level pursuant to the European Convention on Human Rights.1


The growing economic and political significance of Asia has exposed a tension in the modern international order. Despite expanding power and influence, Asian states have played a minimal role in creating the norms and institutions of international law; today they are the least likely to be parties to international agreements or to be represented in international organizations. That is changing. There is widespread scholarly and practitioner interest in international law at present in the Asia-Pacific region, as well as developments in the practice of states. The change has been driven by threats as well as opportunities. Transnational issues such as climate change and occasional flashpoints like the territorial disputes of the South China and the East China Seas pose challenges while economic integration and the proliferation of specialised branches of law and dispute settlement mechanisms have also encouraged greater domestic implementation of international norms across Asia. These evolutions join the long-standing interest in parts of Asia (notably South Asia) in post-colonial theory and the history of international law. This book analyses the approach to, and influence of, key states of the region, as well as whether truly ‘Asian’ trends can be identified and what this might mean for international order.


2020 ◽  
Vol 11 (2) ◽  
pp. 217-241
Author(s):  
Yvonne Guo

Abstract The recently-concluded Singapore Mediation Convention and Hague Judgements Convention have aimed to facilitate the cross-border enforcement of mediated settlement agreements and court judgements in the same way that the New York Convention has facilitated the cross-border enforcement of arbitral awards. This shift in the international dispute resolution landscape is analysed on three levels: normative, strategic and operational. Drawing from theories of private international law, international political economy and comparative public policy, this article asserts that convergent public and private interests likely championed the elaboration of international conventions as a means of promoting harmonization in international dispute settlement. It demonstrates that while the conversion of court judgements and mediated settlement agreements into arbitral awards could also have facilitated their cross-border enforcement, the further development of new mechanisms that respond directly to commercial parties’ needs remains necessary to complement the evolving treaty framework.  


2006 ◽  
Vol 39 (1) ◽  
pp. 221-223
Author(s):  
Margaret E. McGuinness

International Dispute Settlement in an Evolving Global Society: Constitutionalization, Accessibility, Privatization, Francisco Orrego Vicuña, Cambridge: Cambridge University Press, 2005, pp.xxiii, 156.This compilation of the author's 2001 Hersch Lauterpacht Memorial Lectures at Cambridge provides a comprehensive overview of the methods and modes of international dispute settlement. Included in the broad survey are the central public and private dispute resolution processes at the United Nations and the International Court of Justice (ICJ), regional arrangements, national jurisdictions and private party-to-party arrangements. The book achieves its stated goal of identifying trends and provoking discussion of ways in which international dispute resolution can be improved, and in the process has created a useful primer on transnational dispute settlement for social scientists. The lectures have been supplemented with footnotes and the book includes a comprehensive bibliography that includes most of the important recent works in the international law literature on dispute resolution. The strength of the volume lies in its discussion of private dispute resolution and its interplay with public institutions, an area that is often ignored or played down in political science literature focused on state-to-state legal arrangements and interstate relations.


2018 ◽  
Vol 10 (2) ◽  
pp. 333 ◽  
Author(s):  
José Carlos Fernández Rozas

Resumen: Las controversias de carácter jurisdiccional son muy comunes en litigios derivados de la contratación marítima internacional y, en este contexto, la elección del foro es una cuestión capital. Tanto las cláusulas atributivas de jurisdicción y como las cláusulas de arbitraje son dos mecanismos diferentes que ayudan a garantizar la imparcialidad y la previsibilidad en la resolución de las controver­sias internacionales. A pesar de sus beneficios, en el contexto de los documentos de transporte marítimo internacional estas cláusulas pueden ser inconvenientes para las partes que se ven obligadas a litigar ante foros lejanos. La mayoría de los conocimientos de embarque contienen atributivas de jurisdicción que establecen que las partes deben acudir a determinado tribunal para resolver cualquier controversia que surja en relación con el contrato de transporte internacional. Sin embargo, cuando se emite un co-nocimiento de embarque bajo una cláusula de fletamento que incorpore expresamente la cláusula de arbitraje, las partes en el contrato de transporte incluidas en el conocimiento de embarque, pueden verse obligados a acudir al arbitraje. El art. 468 Ley de Navegación Marítima regula la validez formal de aquellas cláusulas de jurisdicción y arbitraje que prevean la sumisión de las partes a una jurisdicción extranjera o a un arbitraje en el extranjero e impone la negociación individual y separada de ambas cláusulas como requisito de validez.Palabras clave: Derecho internacional privado, cláusulas atributivas de jurisdicción, cláusulas de arbitraje, arbitraje marítimo, Ley de Navegación marítima de 2014.Abstract: Disputes about jurisdiction are very common in litigation arising from international maritime contracting. In this context the choice of forum is an important matter. Jurisdiction and ar­bitration clauses are two different mechanisms that help to ensure impartiality and predictability in international dispute resolution. Despite their benefits, in the context of international maritime transport documents these clauses can be inconvenient for parties that are forced to litigate many times before distant fora. Most bills of lading contain jurisdiction clauses providing that parties are to resolve any disputes arising in connection with the contract of carriage contained in the bill through litigation in the courts. Where a bill of lading is issued under a charter party, however, and where it expressly incor­porates the charter party’s arbitration clause into its terms, the parties to the contract of carriage con­tained in the bill of lading, including any transferees of the bill, may be obliged to refer their disputes to arbitration. Article 468 of the new Maritime Navigation Act regulates the formal validity of choice of court agreements and arbitration agreements establishing the submission to a foreign court or to an arbitration located abroad.Keywords: International Private Law, jurisdiction and arbitration clauses, maritime arbitration, Spa­nish Maritime Navigation Act 2014


Author(s):  
Giorgetti Chiara

One of the most important developments in international law is the multifaceted growth of international dispute resolution. There are more parties who prefer to use international law mechanisms to resolve their disputes, and more international actors have more fora available to them to which they can bring their disputes. At the heart of this development are international adjudicative bodies, a diverse group of international bodies that have a common dispute settlement function the outcome of which is binding on the parties. This chapter examines how, when, and over whom these bodies can exercise their function, as well as the nature and enforceability of their decisions.


Conciliation and mediation have great potential to resolve investor-State disputes. Nonetheless, arbitration has significantly overshadowed these two forms of amicable dispute settlement processes. This disparity is slowly changing, and, in recent times, interest has grown in conciliation and mediation, particularly given the duration, complexity, and cost of investor-State arbitrations, as well as concerns as to the substantive content of investor-State arbitral decisions. No clear consensus has emerged regarding the precise definition of either conciliation or mediation. Given the substantial overlap between the two processes, they have often been referred to as functionally equivalent and interchangeable. The best way to identify conciliation or mediation is through close examination of the particular set of rules and practices at issue. But the two dispute settlement mechanisms are generally distinguishable. At its core, conciliation involves a sole conciliator or conciliation commission considering the respective positions of the disputing parties and making nonbinding recommendations for settlement. Conciliation rules typically have flexibility to accommodate other mediation techniques that share the same purpose and may require a conciliator or conciliation commission to produce a written evaluation of the parties’ respective legal positions. In comparison, mediation is a process in which a mediator (1) assists the parties to focus on their real interests rather than legal rights, (2) generally avoids making any merits-based evaluation of parties’ positions, and (3) facilitates a meaningful dialogue between the parties to reach an amicable settlement. Unlike arbitration, in which the disputing parties have no certainty over the arbitrators’ binding decisions, the success of both conciliation and mediation depends on the willingness and cooperation of the parties to reach a voluntary and agreed settlement. A settlement agreement resulting from a mediation or conciliation process may potentially be enforced under domestic laws or in states that have ratified the Singapore Convention on Mediation, an innovation in international dispute resolution that may increase interest in investor-State conciliation and mediation. The UNCITRAL Working Group III is presently considering whether and how to promote conciliation, mediation, and other alternative dispute resolution (ADR) mechanisms in reforms to the present system of investor-State dispute settlement.


2021 ◽  
Vol 17 (12) ◽  
pp. 61
Author(s):  
Chen Shen

Even though the Singapore Convention is recognized as a landmark in the history of the international dispute resolution area, it is still in its infancy. Given China's economic influence and Hong Kong's position in the Asia-Pacific commercial dispute resolution market, China's ratification would greatly enhance the Singapore Convention's impact in international commercial dispute resolution market and hence promote the use of commercial mediation. However, it remains uncertain as to whether, when and how the Singapore Convention would enter into force in China, even though China's one of the first signatories. Current commentaries within China towards Singapore Convention do not only reflect the potential benefits for China to ratify the Singapore Convention, but also difficulties that China might face and strategies to overcome these difficulties, which might form the basis for future decision-makings related to commercial mediation in China.


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