Pub Date : 2020-08-26DOI: 10.1163/15718034-12341423
Luke Tattersall, Azfer A. Khan
The doctrine of abuse of process, as a subsidiary concept of the principle of abuse of rights, is well established as a general principle of law and regularly invoked by member states in argument at the International Court of Justice (ICJ). Nonetheless, the ICJ has yet to uphold an argument founded upon the abuse of process. After conducting a general survey of the development of the doctrine of abuse of process around the globe, this article argues that the ICJ should seize upon the current global trend in which international courts and tribunals have sought to utilise the abuse of process doctrine as a feature of their inherent case management powers, and more readily make use of the doctrine to ensure that the integrity of proceedings is preserved before the ICJ.
{"title":"Taking Stock: Abuse of Process within the International Court of Justice","authors":"Luke Tattersall, Azfer A. Khan","doi":"10.1163/15718034-12341423","DOIUrl":"https://doi.org/10.1163/15718034-12341423","url":null,"abstract":"\u0000The doctrine of abuse of process, as a subsidiary concept of the principle of abuse of rights, is well established as a general principle of law and regularly invoked by member states in argument at the International Court of Justice (ICJ). Nonetheless, the ICJ has yet to uphold an argument founded upon the abuse of process. After conducting a general survey of the development of the doctrine of abuse of process around the globe, this article argues that the ICJ should seize upon the current global trend in which international courts and tribunals have sought to utilise the abuse of process doctrine as a feature of their inherent case management powers, and more readily make use of the doctrine to ensure that the integrity of proceedings is preserved before the ICJ.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-08-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78301771","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 : 2020-08-26DOI: 10.1163/15718034-12341426
K. Dzehtsiarou
{"title":"International Judicial Review: When Should International Courts Intervene?, written by Shai Dothan","authors":"K. Dzehtsiarou","doi":"10.1163/15718034-12341426","DOIUrl":"https://doi.org/10.1163/15718034-12341426","url":null,"abstract":"","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-08-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85980376","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 : 2020-08-26DOI: 10.1163/15718034-12341420
S. Fallah
70 years ago, the International Court of Justice decided its first and potentially most important case involving unlawfully obtained evidence. Despite clearly rejecting ‘discovery by intervention’, the judgment left many guessing as to the consequences for evidence obtained through such violations. As parties to international disputes have certainly not become less inclined to obtain evidence by unlawful means, the question arises: Was this old confusion ever unraveled? This article discusses whether today, there are international rules or principles governing the admissibility of unlawfully acquired evidence and applies a two-fold approach. First, it examines traditional sources of international law, including international jurisprudence, and second, it scrutinizes the frequently drawn analogy to national jurisdictions by surveying their treatment of illegally obtained evidence. Although a generally binding “inadmissibility rule” does not yet exist, practice demonstrates a tendency to consider such evidence in light of general principles of law. This article proposes handling unlawfully acquired evidence by applying a defined, yet flexible balancing test using criteria commonly applied in international and national practice.
{"title":"The Admissibility of Unlawfully Obtained Evidence before International Courts and Tribunals","authors":"S. Fallah","doi":"10.1163/15718034-12341420","DOIUrl":"https://doi.org/10.1163/15718034-12341420","url":null,"abstract":"\u000070 years ago, the International Court of Justice decided its first and potentially most important case involving unlawfully obtained evidence. Despite clearly rejecting ‘discovery by intervention’, the judgment left many guessing as to the consequences for evidence obtained through such violations. As parties to international disputes have certainly not become less inclined to obtain evidence by unlawful means, the question arises: Was this old confusion ever unraveled? This article discusses whether today, there are international rules or principles governing the admissibility of unlawfully acquired evidence and applies a two-fold approach. First, it examines traditional sources of international law, including international jurisprudence, and second, it scrutinizes the frequently drawn analogy to national jurisdictions by surveying their treatment of illegally obtained evidence. Although a generally binding “inadmissibility rule” does not yet exist, practice demonstrates a tendency to consider such evidence in light of general principles of law. This article proposes handling unlawfully acquired evidence by applying a defined, yet flexible balancing test using criteria commonly applied in international and national practice.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-08-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/15718034-12341420","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43122854","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 : 2020-04-14DOI: 10.1163/15718034-12341417
A. Kulick
International courts and tribunals only enjoy jurisdiction to settle a ‘dispute’. ‘Dispute’ requires disagreement. However, what if the parties disagree over whether there actually exists such disagreement? What if, before the International Court of Justice, the respondent argues that there is no ‘dispute’ because it declined to react to the applicant’s contentions? In other words, can a disputing party avoid a dispute by playing dead? On the other hand, where to draw the line in order to prevent the applicant from seizing an international court or tribunal where there is in fact no real disagreement among the parties? This article critically assesses the Court’s case law on the ‘dispute’ requirement and argues for a fragmented approach to ‘dispute’ in international adjudication that carefully defines this jurisdictional requirement along the lines of the judicial function of the respective international judicial dispute settlement forum.
{"title":"Let’s (Not) (Dis)Agree to Disagree!? Some Thoughts on the ‘Dispute’ Requirement in International Adjudication","authors":"A. Kulick","doi":"10.1163/15718034-12341417","DOIUrl":"https://doi.org/10.1163/15718034-12341417","url":null,"abstract":"International courts and tribunals only enjoy jurisdiction to settle a ‘dispute’. ‘Dispute’ requires disagreement. However, what if the parties disagree over whether there actually exists such disagreement? What if, before the International Court of Justice, the respondent argues that there is no ‘dispute’ because it declined to react to the applicant’s contentions? In other words, can a disputing party avoid a dispute by playing dead? On the other hand, where to draw the line in order to prevent the applicant from seizing an international court or tribunal where there is in fact no real disagreement among the parties? This article critically assesses the Court’s case law on the ‘dispute’ requirement and argues for a fragmented approach to ‘dispute’ in international adjudication that carefully defines this jurisdictional requirement along the lines of the judicial function of the respective international judicial dispute settlement forum.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-04-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89003184","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 : 2020-04-14DOI: 10.1163/15718034-12341413
Freya Baetens, R. Bismuth
{"title":"Editorial","authors":"Freya Baetens, R. Bismuth","doi":"10.1163/15718034-12341413","DOIUrl":"https://doi.org/10.1163/15718034-12341413","url":null,"abstract":"","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-04-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/15718034-12341413","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41616241","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 : 2020-04-14DOI: 10.1163/15718034-12341415
Marco Dimetto
Recently, the International Court of Justice dealt with a request to interpret provisional measures previously indicated in the Ukraine v. Russian Federation case. However, the Court never disclosed its official position on the request, but reportedly limited itself to reaffirming the binding nature of its previous Order. The present contribution aims at analyzing from a general point of view whether the ICJ would be ready to settle interpretative disputes that arise with regard to the meaning and scope of provisional measures already indicated. Despite several paths that could be envisaged in theory, only one of them seems to be suitable to reach that goal.
{"title":"Interpretative Disputes with Regard to Provisional Measures at the ICJ: Is There a Normative Gap?","authors":"Marco Dimetto","doi":"10.1163/15718034-12341415","DOIUrl":"https://doi.org/10.1163/15718034-12341415","url":null,"abstract":"\u0000Recently, the International Court of Justice dealt with a request to interpret provisional measures previously indicated in the Ukraine v. Russian Federation case. However, the Court never disclosed its official position on the request, but reportedly limited itself to reaffirming the binding nature of its previous Order. The present contribution aims at analyzing from a general point of view whether the ICJ would be ready to settle interpretative disputes that arise with regard to the meaning and scope of provisional measures already indicated. Despite several paths that could be envisaged in theory, only one of them seems to be suitable to reach that goal.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-04-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75018645","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 : 2020-04-14DOI: 10.1163/15718034-12341416
Scott Falls
With the future viability of WTO dispute settlement being uncertain, states may be required to rely on the dispute settlement mechanisms of their FTAs to provide a forum for litigating international trade disputes. Given however that these mechanisms have historically been inefficient and ineffective, it would be judicious for states to consider delegating the administrative functions of FTA dispute settlement to a third-party arbitral institution in order to remedy these deficiencies. This article analyzes both the factors impelling states to consider contracting out the administrative function of FTA dispute settlement, as well as the potential benefits states can reap by pursuing this strategy. Assessing the strengths and potential drawbacks of delegating FTA dispute settlement administration to the Permanent Court of Arbitration in particular, this article argues that the PCA is well positioned to undertake effective and efficient administration of FTA trade disputes.
{"title":"Outsourcing FTA Dispute Settlement Administration to Third-Party International Arbitral Institutions: Opportunities and the Role of the Permanent Court of Arbitration","authors":"Scott Falls","doi":"10.1163/15718034-12341416","DOIUrl":"https://doi.org/10.1163/15718034-12341416","url":null,"abstract":"\u0000With the future viability of WTO dispute settlement being uncertain, states may be required to rely on the dispute settlement mechanisms of their FTAs to provide a forum for litigating international trade disputes. Given however that these mechanisms have historically been inefficient and ineffective, it would be judicious for states to consider delegating the administrative functions of FTA dispute settlement to a third-party arbitral institution in order to remedy these deficiencies. This article analyzes both the factors impelling states to consider contracting out the administrative function of FTA dispute settlement, as well as the potential benefits states can reap by pursuing this strategy. Assessing the strengths and potential drawbacks of delegating FTA dispute settlement administration to the Permanent Court of Arbitration in particular, this article argues that the PCA is well positioned to undertake effective and efficient administration of FTA trade disputes.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-04-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75350349","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 : 2020-04-14DOI: 10.1163/15718034-12341414
Peter Tzeng
One of the greatest challenges facing international courts and tribunals today is a State’s decision not to participate in a proceeding. Ever since China refused to take part in the South China Sea arbitration in 2013, there have been no fewer than nine additional inter-State cases of non-participation. The existing literature views this growing phenomenon as a problem. This article, however, takes the perspective of the non-participating State, and thus views non-participation as a strategy. After examining the law and practice of non-participation, the article discusses a series of strategic considerations that States should take into account when deciding whether to participate in a proceeding. In doing so, the article hopes not only to advise States considering non-participation, but also to help others understand the reasons behind a State’s decision of non-participation.
{"title":"A Strategy of Non-Participation before International Courts and Tribunals","authors":"Peter Tzeng","doi":"10.1163/15718034-12341414","DOIUrl":"https://doi.org/10.1163/15718034-12341414","url":null,"abstract":"\u0000One of the greatest challenges facing international courts and tribunals today is a State’s decision not to participate in a proceeding. Ever since China refused to take part in the South China Sea arbitration in 2013, there have been no fewer than nine additional inter-State cases of non-participation. The existing literature views this growing phenomenon as a problem. This article, however, takes the perspective of the non-participating State, and thus views non-participation as a strategy. After examining the law and practice of non-participation, the article discusses a series of strategic considerations that States should take into account when deciding whether to participate in a proceeding. In doing so, the article hopes not only to advise States considering non-participation, but also to help others understand the reasons behind a State’s decision of non-participation.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-04-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77753212","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: 10.1163/15718034-12341404
F. Baetens, Pierre Bodeau-Livinec
{"title":"Face à Face","authors":"F. Baetens, Pierre Bodeau-Livinec","doi":"10.1163/15718034-12341404","DOIUrl":"https://doi.org/10.1163/15718034-12341404","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/10.1163/15718034-12341404","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43163989","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}
This article focuses on one particular issue which has arisen in the course of the ongoing debate on the reform of investor-State dispute settlement (ISDS), namely that of the appointment of arbitrators. Taking as its starting point that there now exists a tentative consensus that the present system for the appointment of arbitrators either causes or exacerbates certain problematic aspects of the current ISDS system, the article explores one option for reform: the creation of an independent panel for the scrutiny of arbitral appointments. Such a body is the most desirable way to introduce necessary scrutiny into the current appointments system, which will in turn help to address some of the criticisms levelled at ISDS more generally, while at the same time not removing completely the initiative that parties currently have to put individuals forward as their candidates to become an arbitrator.
{"title":"An Independent Panel for the Scrutiny of Investment Arbitrators: an Idea Whose Time Has Come?","authors":"J. Devaney","doi":"10.2139/ssrn.3519208","DOIUrl":"https://doi.org/10.2139/ssrn.3519208","url":null,"abstract":"\u0000This article focuses on one particular issue which has arisen in the course of the ongoing debate on the reform of investor-State dispute settlement (ISDS), namely that of the appointment of arbitrators. Taking as its starting point that there now exists a tentative consensus that the present system for the appointment of arbitrators either causes or exacerbates certain problematic aspects of the current ISDS system, the article explores one option for reform: the creation of an independent panel for the scrutiny of arbitral appointments. Such a body is the most desirable way to introduce necessary scrutiny into the current appointments system, which will in turn help to address some of the criticisms levelled at ISDS more generally, while at the same time not removing completely the initiative that parties currently have to put individuals forward as their candidates to become an arbitrator.","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":"45268904","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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