The multilateral expression of the desire to reform investor-state dispute settlement (ISDS) at the United Nations Commission on International Trade Law (UNCITRAL) obscures the diverging preferences states have in respect of which future dispute settlement model to adopt. In order to garner broad acceptability, this article proposes that the reformed system could be designed as “dispute settlement à la carte”, with a Multilateral Investment Court coexisting with other forms of dispute resolution under the umbrella of one multilateral institution. With a view to showing that such a system is feasible, this article draws on comparative institutional design analysis, that is, a comparative assessment of dispute settlement design features across different international dispute settlement systems. This approach helps to explore what institutional design features are a useful source of inspiration for a future investment dispute settlement system that preserves flexibility for states in the choice of their preferred means of adjudication, while safeguarding legal certainty and promoting coherence in investment dispute settlement.
{"title":"Designing Investment Dispute Settlement à la Carte: Insights from Comparative Institutional Design Analysis","authors":"S. Schill, G. Vidigal","doi":"10.2139/ssrn.3519259","DOIUrl":"https://doi.org/10.2139/ssrn.3519259","url":null,"abstract":"\u0000The multilateral expression of the desire to reform investor-state dispute settlement (ISDS) at the United Nations Commission on International Trade Law (UNCITRAL) obscures the diverging preferences states have in respect of which future dispute settlement model to adopt. In order to garner broad acceptability, this article proposes that the reformed system could be designed as “dispute settlement à la carte”, with a Multilateral Investment Court coexisting with other forms of dispute resolution under the umbrella of one multilateral institution. With a view to showing that such a system is feasible, this article draws on comparative institutional design analysis, that is, a comparative assessment of dispute settlement design features across different international dispute settlement systems. This approach helps to explore what institutional design features are a useful source of inspiration for a future investment dispute settlement system that preserves flexibility for states in the choice of their preferred means of adjudication, while safeguarding legal certainty and promoting coherence in investment dispute settlement.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44148609","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-02-07DOI: 10.1163/15718034-12341405
Callista Harris
This article considers the approach for determining whether a dispute concerns the “interpretation or application” of a particular treaty, such that it is within the subject-matter jurisdiction of an international court or tribunal. Specifically, the article considers what approach should be taken when claims are presented as concerning the “interpretation or application” of a particular treaty, but involve central issues under rules of international law found outside the treaty in question. The specific argument made in this article is that the approach used in some recent decisions, involving characterising where the “relative weight” of a dispute lies and the “true object” of claims, should not be followed.
{"title":"Claims with an Ulterior Purpose: Characterising Disputes Concerning the “Interpretation or Application” of a Treaty","authors":"Callista Harris","doi":"10.1163/15718034-12341405","DOIUrl":"https://doi.org/10.1163/15718034-12341405","url":null,"abstract":"\u0000This article considers the approach for determining whether a dispute concerns the “interpretation or application” of a particular treaty, such that it is within the subject-matter jurisdiction of an international court or tribunal. Specifically, the article considers what approach should be taken when claims are presented as concerning the “interpretation or application” of a particular treaty, but involve central issues under rules of international law found outside the treaty in question. The specific argument made in this article is that the approach used in some recent decisions, involving characterising where the “relative weight” of a dispute lies and the “true object” of claims, should not be followed.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/15718034-12341405","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44486656","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-02-07DOI: 10.1163/15718034-12341403
Pierre Bodeau-Livinec
{"title":"Au revoir","authors":"Pierre Bodeau-Livinec","doi":"10.1163/15718034-12341403","DOIUrl":"https://doi.org/10.1163/15718034-12341403","url":null,"abstract":"","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/15718034-12341403","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41496199","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-02-07DOI: 10.1163/15718034-12341411
G. Dimitropoulos
Understanding the “backlash” it is facing is a necessary condition for a successful reform of international investment law and arbitration. The article develops a typology of backlash in international investment law and arbitration, identifying three main tensions in the field: contractualism vs. unilateralism; economic rationality vs. political rationality; flat world view vs. diverse world view. The article claims that the reform discussion, including at the UNCITRAL level, should be informed by this backlash typology. Two main lessons may be learned, one at the methodological level and one at the substantive level: first, the reform discussion needs to be informed by the study of systems of domestic investment law and policy; second, the reform discussion needs to move beyond its Investor-State Dispute Settlement (ISDS) confines and also include reform of the substantive law and administrative procedures of States and of international treaties.
{"title":"The Conditions for Reform: a Typology of “Backlash” and Lessons for Reform in International Investment Law and Arbitration","authors":"G. Dimitropoulos","doi":"10.1163/15718034-12341411","DOIUrl":"https://doi.org/10.1163/15718034-12341411","url":null,"abstract":"\u0000Understanding the “backlash” it is facing is a necessary condition for a successful reform of international investment law and arbitration. The article develops a typology of backlash in international investment law and arbitration, identifying three main tensions in the field: contractualism vs. unilateralism; economic rationality vs. political rationality; flat world view vs. diverse world view. The article claims that the reform discussion, including at the UNCITRAL level, should be informed by this backlash typology. Two main lessons may be learned, one at the methodological level and one at the substantive level: first, the reform discussion needs to be informed by the study of systems of domestic investment law and policy; second, the reform discussion needs to move beyond its Investor-State Dispute Settlement (ISDS) confines and also include reform of the substantive law and administrative procedures of States and of international treaties.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/15718034-12341411","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45162847","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-02-07DOI: 10.1163/15718034-12341406
C. Giorgetti, Laura Létourneau-Tremblay, D. Behn, M. Langford
1 Amongst the first scholarly critiques was Susan D. Franck’s, “The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law through Inconsistent Decisions,” 73 Fordham Law Review (2005), 107. For an analysis of the trajectory of the debate, see Malcolm Langford and Daniel Behn, “Managing Backlash: The Evolving Investment Treaty Arbitrator?,” 29(2) European Journal of International Law (2018), 551–580. 2 See e.g. Gus Van Harten, “Arbitrator Behaviour in Asymmetrical Adjudication: An Empirical Study of Investment Treaty Arbitration”, 50 Osgoode Hall Law Journal (2012), 211, 251; Zachary Douglas, “The MFN Clause in Investment Arbitration: Treaty Interpretation off the Rails”, 2 Journal of International Dispute Settlement (2011), 97; George Kahale, “Is Investor-State Arbitration Broken?”, 7 TDM (2012), www.transnational-dispute-management.com, accessed 31 October 2019.
1最早的学术批评是Susan D.Franck的《投资条约仲裁中的合法性危机：通过不一致的决定使国际公法私有化》，73 Fordham Law Review（2005），107。关于辩论轨迹的分析，请参阅Malcolm Langford和Daniel Behn，“管理反弹：不断演变的投资条约仲裁员？”，29（2）《欧洲国际法杂志》（2018），551–580。2参见Gus Van Harten，“不对称裁决中的仲裁员行为：投资条约仲裁的实证研究”，50 Osgoode Hall Law Journal（2012），211251；Zachary Douglas，“投资仲裁中的最惠国条款：偏离轨道的条约解释”，2《国际争端解决杂志》（2011），97；George Kahale，“投资者-国家仲裁破裂了吗？”，7 TDM（2012），www.transnational-dispute-management.com，2019年10月31日访问。
{"title":"Reforming International Investment Arbitration: an Introduction","authors":"C. Giorgetti, Laura Létourneau-Tremblay, D. Behn, M. Langford","doi":"10.1163/15718034-12341406","DOIUrl":"https://doi.org/10.1163/15718034-12341406","url":null,"abstract":"1 Amongst the first scholarly critiques was Susan D. Franck’s, “The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law through Inconsistent Decisions,” 73 Fordham Law Review (2005), 107. For an analysis of the trajectory of the debate, see Malcolm Langford and Daniel Behn, “Managing Backlash: The Evolving Investment Treaty Arbitrator?,” 29(2) European Journal of International Law (2018), 551–580. 2 See e.g. Gus Van Harten, “Arbitrator Behaviour in Asymmetrical Adjudication: An Empirical Study of Investment Treaty Arbitration”, 50 Osgoode Hall Law Journal (2012), 211, 251; Zachary Douglas, “The MFN Clause in Investment Arbitration: Treaty Interpretation off the Rails”, 2 Journal of International Dispute Settlement (2011), 97; George Kahale, “Is Investor-State Arbitration Broken?”, 7 TDM (2012), www.transnational-dispute-management.com, accessed 31 October 2019.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/15718034-12341406","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49647889","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-01-20DOI: 10.1163/15718034-12341418
T. Soave
This article argues that the legal culture of EC/EU institutions has made a significant contribution to the ethos, the style, and the tone of WTO dispute settlement bodies. Areas of alignment between the two regimes include the self-perceived role of adjudicators vis-à-vis their political environment and the jurisprudence on the ‘necessity’ of non-trade measures. Based on these premises, the article traces some of the social and professional pathways through which European sensibilities and perspectives have found their way from Brussels (and Luxembourg) to Geneva. In particular, it describes the convergent trajectories of the EC/EU and the GATT/WTO professional communities. The goal of the analysis is to provide a fresh outlook on the ongoing diplomatic stalemate surrounding the future of the Appellate Body and WTO dispute settlement at large.
{"title":"European Legal Culture and WTO Dispute Settlement: Thirty Years of Socio-Legal Transplants from Brussels to Geneva","authors":"T. Soave","doi":"10.1163/15718034-12341418","DOIUrl":"https://doi.org/10.1163/15718034-12341418","url":null,"abstract":"\u0000This article argues that the legal culture of EC/EU institutions has made a significant contribution to the ethos, the style, and the tone of WTO dispute settlement bodies. Areas of alignment between the two regimes include the self-perceived role of adjudicators vis-à-vis their political environment and the jurisprudence on the ‘necessity’ of non-trade measures. Based on these premises, the article traces some of the social and professional pathways through which European sensibilities and perspectives have found their way from Brussels (and Luxembourg) to Geneva. In particular, it describes the convergent trajectories of the EC/EU and the GATT/WTO professional communities. The goal of the analysis is to provide a fresh outlook on the ongoing diplomatic stalemate surrounding the future of the Appellate Body and WTO dispute settlement at large.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-01-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/15718034-12341418","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47709362","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-11-19DOI: 10.1163/15718034-12341400
Ksenia Polonskaya
This article examines the notion of consent as an element of judicial propriety as defined by the International Court of Justice (ICJ) in the context of its advisory function. The article situates the issue of judicial propriety within a broader conversation on the Court’s normative outlooks in international law, and examines the most recent advisory opinion on the Chagos Archipelago to understand how the Court itself views its role in international law. The article concludes that the Court’s advisory opinions do not provide much clarity as to the circumstances in which a lack of consent will become a compelling enough reason to justify a refusal to give an advisory opinion. The Court appears to ritually recite consent as a relevant element in its assessment of judicial propriety, however, it continues to limit such relevance.
{"title":"International Court of Justice: The Role of Consent in the Context of Judicial Propriety Deconstructed in Light of Chagos Archipelago","authors":"Ksenia Polonskaya","doi":"10.1163/15718034-12341400","DOIUrl":"https://doi.org/10.1163/15718034-12341400","url":null,"abstract":"\u0000This article examines the notion of consent as an element of judicial propriety as defined by the International Court of Justice (ICJ) in the context of its advisory function. The article situates the issue of judicial propriety within a broader conversation on the Court’s normative outlooks in international law, and examines the most recent advisory opinion on the Chagos Archipelago to understand how the Court itself views its role in international law. The article concludes that the Court’s advisory opinions do not provide much clarity as to the circumstances in which a lack of consent will become a compelling enough reason to justify a refusal to give an advisory opinion. The Court appears to ritually recite consent as a relevant element in its assessment of judicial propriety, however, it continues to limit such relevance.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2019-11-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77532323","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-11-19DOI: 10.1163/15718034-12341401
Gaiane Nuridzhanian
Article 20(3) of the Rome Statute bars the International Criminal Court from trying a person for conduct proscribed by the Statute if the person has already been tried in relation to the same conduct before “another court,” provided that the proceedings in the other court were genuine. The article discusses application of Article 20(3) of the Rome Statute and, by implication, of the Court’s admissibility framework to non-State courts. It argues that Article 20(3) applies where there has a been a trial before a court of a State, whether that State is a party or not to the Rome Statute. Article 20(3) can in principle apply to a trial before a non-State court were the trial to satisfy the customary international law rules on attribution of conduct to a State.
{"title":"Ne Bis In Idem in Article 20(3) of the Rome Statute and Non-State Courts","authors":"Gaiane Nuridzhanian","doi":"10.1163/15718034-12341401","DOIUrl":"https://doi.org/10.1163/15718034-12341401","url":null,"abstract":"\u0000Article 20(3) of the Rome Statute bars the International Criminal Court from trying a person for conduct proscribed by the Statute if the person has already been tried in relation to the same conduct before “another court,” provided that the proceedings in the other court were genuine. The article discusses application of Article 20(3) of the Rome Statute and, by implication, of the Court’s admissibility framework to non-State courts. It argues that Article 20(3) applies where there has a been a trial before a court of a State, whether that State is a party or not to the Rome Statute. Article 20(3) can in principle apply to a trial before a non-State court were the trial to satisfy the customary international law rules on attribution of conduct to a State.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2019-11-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81452266","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-11-19DOI: 10.1163/15718034-12341399
Paula Wojcikiewicz Almeida
By adjudicating inter-State claims, international courts can also contribute to the protection and promotion of community interests. However, the main obstacle faced by the International Court of Justice (ICJ) relates to the existing tension between the bilateral nature of its own proceedings and the multilateral nature of the conflicting substantive law. As procedure may guide and shape the application of substantive law, it should itself be interpreted and developed in a manner to ensure community interests. By using its power to “frame rules for carrying out its functions”, the Court should assume expanded procedural powers in order to ensure the effective application of substantive law whenever community interests are at issue. Most procedural rules can be adjusted for multiparty aspects, notably the rules on third-party intervention, with the aim of protecting community interests and enhancing the Court’s legitimacy. It is up to the Court to find the balance between States’ rights and commonly aspired goals.
{"title":"International Procedural Regulation in the Common Interest: The Role of Third-Party Intervention and Amicus Curiae before the ICJ","authors":"Paula Wojcikiewicz Almeida","doi":"10.1163/15718034-12341399","DOIUrl":"https://doi.org/10.1163/15718034-12341399","url":null,"abstract":"\u0000By adjudicating inter-State claims, international courts can also contribute to the protection and promotion of community interests. However, the main obstacle faced by the International Court of Justice (ICJ) relates to the existing tension between the bilateral nature of its own proceedings and the multilateral nature of the conflicting substantive law. As procedure may guide and shape the application of substantive law, it should itself be interpreted and developed in a manner to ensure community interests. By using its power to “frame rules for carrying out its functions”, the Court should assume expanded procedural powers in order to ensure the effective application of substantive law whenever community interests are at issue. Most procedural rules can be adjusted for multiparty aspects, notably the rules on third-party intervention, with the aim of protecting community interests and enhancing the Court’s legitimacy. It is up to the Court to find the balance between States’ rights and commonly aspired goals.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2019-11-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82633502","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-11-19DOI: 10.1163/15718034-12341398
Neil B. Nucup
With the anarchic multiplication of international courts and tribunals, and the concomitant possibility for jurisdictional and decisional conflicts among them to occur, treating the International Court of Justice as the “invisible” international supreme court seems an attractive solution. After all, it is the principal judicial organ of the United Nations and the only court with universal general jurisdiction. Revisiting this proposal, the article argues that the World Court suffers not only from political (extrinsic) constraints, but also from institutional (intrinsic) limitations, thereby endangering its sociological and normative legitimacy. Nonetheless, this does not mean rectifying them for the purpose of enabling it to discharge its envisioned role as the international supreme court. Rather the problem is not so much improving the World Court, but understanding the merits of maintaining the status quo, that is, a decentralised judiciary.
{"title":"Infallible or Final?: Revisiting the Legitimacy of the International Court of Justice as the “Invisible” International Supreme Court","authors":"Neil B. Nucup","doi":"10.1163/15718034-12341398","DOIUrl":"https://doi.org/10.1163/15718034-12341398","url":null,"abstract":"\u0000With the anarchic multiplication of international courts and tribunals, and the concomitant possibility for jurisdictional and decisional conflicts among them to occur, treating the International Court of Justice as the “invisible” international supreme court seems an attractive solution. After all, it is the principal judicial organ of the United Nations and the only court with universal general jurisdiction. Revisiting this proposal, the article argues that the World Court suffers not only from political (extrinsic) constraints, but also from institutional (intrinsic) limitations, thereby endangering its sociological and normative legitimacy. Nonetheless, this does not mean rectifying them for the purpose of enabling it to discharge its envisioned role as the international supreme court. Rather the problem is not so much improving the World Court, but understanding the merits of maintaining the status quo, that is, a decentralised judiciary.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2019-11-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/15718034-12341398","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43171964","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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