Introduction

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

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.

Implications of a Common Law of 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

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.

Power of International Courts to Grant Provisional Measures

This chapter examines the power of international courts to grant provisional measures and analyses whether there is an emerging common practice. It first describes the purpose of provisional measures in international adjudication. It then considers the source of the power to grant provisional measures. Many international courts have an express power in their constitutive instruments, but several international courts have exercised the power as an inherent power. The chapter then examines the features common in the exercise of the power by a range of international courts — consideration of the question of jurisdiction over the merits of the dispute; the circumstances relevant to the granting of provisional measures; and the binding quality of provisional measures. Finally, the chapter considers the power of international courts to grant provisional measures ultra petita and proprio motu. It concludes that there is substantial commonality in the practice of international courts concerning provisional measures.

Aspects of Evidence in International Adjudication

This chapter examines whether commonalities exist in the rules of evidence applied by different international courts and tribunals. It begins by considering the sources of rules of evidence in international law. These are the constitutive instruments of international courts, rules of procedure, general principles of law, and inherent powers. It then selects a number of evidential issues, being the admission of evidence, the burden of proof, and the standard of proof, and reviews whether international courts adopt similar approaches. The chapter then turns to an examination of the evidence-gathering powers of international courts, such as taking judicial notice of facts, ordering the production of evidence, making site visits, and ordering expert reports. The practice of international courts generally indicates a common approach to these issues, although the application of the rules is not completely consistent.

Methods Used by International Courts and Tribunals to Engage in Cross-Fertilization

This chapter examines the methods available to international courts to refer to the practice of other international judicial bodies, and to interpret and apply their procedure and remedies in similar ways. It begins by outlining the sources of law relating to procedure and remedies, which are principally the constitutive instruments and rules of procedure of international courts. Such instruments are not drafted in identical terms, and often contain lacunae. It examines what international courts do when faced with lacunae in these sources. It then discusses the concept of inherent powers in detail, argues that the exercise of such powers by international courts is justified, and reviews their relevant practice. The possible sources of inherent powers are examined, and it is concluded that they lie in the need of international courts to fulfil their functions, being, principally, the settlement of international disputes and the proper administration of international justice. These functions also serve as limitations on the exercise of inherent powers.

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

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.

Remedies in International Adjudication

This chapter considers whether international courts have common approaches to the granting of remedies. It first examines the source of the power to award remedies. It then explains the obligation in international law to make ‘full reparation’, and briefly details the three different forms of reparation (restitution, compensation, and satisfaction). It notes that there is some disagreement on whether each of these is appropriate as a judicial remedy in all cases. The next section cites examples where the various forms of reparation have been awarded in particular disputes, and includes a discussion of the existence of mandatory or consequential orders as a possible remedy. Finally, the chapter examines the availability of remedies in WTO dispute settlement, and notes that although this is largely a lex specialis, there is evidence that the law of reparation has some relevance.

Power of International Courts to Interpret and Revise Judgments and Awards

This chapter examines in detail two post-adjudication powers of international courts and tribunals: the power of interpretation and the power of revision. It first explains the post-adjudication role of international courts, which is limited due to the principle of the finality of adjudication. A variety of procedures have been developed, but this chapter focuses on the powers of interpretation and revision. The chapter then analyses the source of these powers, and it is argued that even if these powers are not expressly conferred in an international court's constitutive instruments, they can be exercised as inherent powers. It then turns to a number of issues which are considered by international courts in exercising the powers of interpretation and revision: the jurisdiction of the international court hearing the request; the composition of the international court; the scope of the powers of interpretation and revision; and other conditions. The chapter concludes that these powers are generally exercised in a consistent manner by different international courts.