Scholars increasingly seek to understand the driving forces behind change in international law. However, these analyses often tend to provide external forms of analysis that presume change can be identified without engaging with the actors or looking at the law. This article takes the role of party pleadings in international dispute settlement as a means through which we can assess the influence of actors on law-making. Taking the development of the ‘control of the crime’ theory at the International Criminal Court as its object, the article scrutinizes legal change by dissecting the multifaceted role of pleadings. Adopting an interdisciplinary approach and conducting quantitative analysis of citation patterns, content analysis of case law, and interviews with practitioners, it offers a novel methodological take and empirical insights into our understanding of what makes up legal change in international law, and how we can identify its meaning through different access points.
{"title":"Pleading for international law: assessing the influence of party to proceedings on legal change in international courts","authors":"William Hamilton Byrne, Zuzanna Godzimirska","doi":"10.1093/jnlids/idad002","DOIUrl":"https://doi.org/10.1093/jnlids/idad002","url":null,"abstract":"Scholars increasingly seek to understand the driving forces behind change in international law. However, these analyses often tend to provide external forms of analysis that presume change can be identified without engaging with the actors or looking at the law. This article takes the role of party pleadings in international dispute settlement as a means through which we can assess the influence of actors on law-making. Taking the development of the ‘control of the crime’ theory at the International Criminal Court as its object, the article scrutinizes legal change by dissecting the multifaceted role of pleadings. Adopting an interdisciplinary approach and conducting quantitative analysis of citation patterns, content analysis of case law, and interviews with practitioners, it offers a novel methodological take and empirical insights into our understanding of what makes up legal change in international law, and how we can identify its meaning through different access points.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"22 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-02-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86624689","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Unusual Source of Inspiration: Cooking International Law","authors":"B. Bonafé","doi":"10.1093/jnlids/idad001","DOIUrl":"https://doi.org/10.1093/jnlids/idad001","url":null,"abstract":"","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"157 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77937239","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Beyond law and politics, how will other factors influence individual judicial behaviour in China? How do the gains of efficiency and substantive justice compare with the potential losses of procedural protections? Do judges see their role as to resolve the disputes between the parties by the most appropriate means, or is it only an attempt to render and enforce an authoritative binding decision? Through a series of interviews with Chinese judges, the research provides an empirical narrative on how judicial mediation is actually practiced in China and analyses values and limitations of judicial mediation. The article empirically illustrates the multiplicity of influences on judicial behaviour in China, and the perception of the role of judges in China. Conceptually, the article aspires to contribute to the field of comparative judicial behaviour. It attempts to expand our inquiry beyond the focus on the role of politics and law when analysing judicial behaviour.
{"title":"Beyond law and politics: an empirical study of judicial mediation in China","authors":"Kun Fan","doi":"10.1093/jnlids/idac027","DOIUrl":"https://doi.org/10.1093/jnlids/idac027","url":null,"abstract":"Abstract Beyond law and politics, how will other factors influence individual judicial behaviour in China? How do the gains of efficiency and substantive justice compare with the potential losses of procedural protections? Do judges see their role as to resolve the disputes between the parties by the most appropriate means, or is it only an attempt to render and enforce an authoritative binding decision? Through a series of interviews with Chinese judges, the research provides an empirical narrative on how judicial mediation is actually practiced in China and analyses values and limitations of judicial mediation. The article empirically illustrates the multiplicity of influences on judicial behaviour in China, and the perception of the role of judges in China. Conceptually, the article aspires to contribute to the field of comparative judicial behaviour. It attempts to expand our inquiry beyond the focus on the role of politics and law when analysing judicial behaviour.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135300870","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
International commercial courts (ICCts) are hybrid dispute resolution fora, whose features often differ from the ones of ‘ordinary’ courts. Thus, the legal nature of ICCts is not always clear. The authors submit that it is doubtful whether an ICCt should be qualified as a self-standing adjudicative body, or as a chamber of a larger court. This, in turn, may undermine the applicability of the European Union cross-border litigation regime, and affect enforceability. Using the Netherlands Commercial Court as a case study, this article proposes two alternative avenues for reform, aimed at enhancing legal certainty and ensuring international enforceability.
{"title":"International commercial courts and EU law: easing the tension","authors":"P. Ortolani, Bastiaan Van Zelst","doi":"10.1093/jnlids/idac030","DOIUrl":"https://doi.org/10.1093/jnlids/idac030","url":null,"abstract":"\u0000 International commercial courts (ICCts) are hybrid dispute resolution fora, whose features often differ from the ones of ‘ordinary’ courts. Thus, the legal nature of ICCts is not always clear. The authors submit that it is doubtful whether an ICCt should be qualified as a self-standing adjudicative body, or as a chamber of a larger court. This, in turn, may undermine the applicability of the European Union cross-border litigation regime, and affect enforceability. Using the Netherlands Commercial Court as a case study, this article proposes two alternative avenues for reform, aimed at enhancing legal certainty and ensuring international enforceability.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"89 3","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-01-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72631902","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Intervention at the International Court of Justice (the Court) has re-emerged as a trending topic amid the Application of the Genocide Convention (The Gambia v Myanmar) and Allegations of Genocide under the Genocide Convention (Ukraine v Russian Federation). This article advances an approach to straightening the indeterminacy regarding the threshold of proof of the ‘which may be affected by the decision in the case’ expression under Article 62 of the Court’s Statute for non-party intervention. The Court deems the wording a second and substantive condition of the provision, the assessment of which remains controversial. Notwithstanding the permissiveness of the latest Order, Jurisdictional Immunities of the State(Germany v Italy), the complication lingers. The said Order did not refer to the requirement. It fell outside the purview of maritime boundary, to which all previous and inconsistent orders of the Court on non-party intervention relate.
{"title":"Towards clarity: the ‘may be affected’ requirement and non-party intervention at the International Court of Justice","authors":"Gracious Avayiwoe","doi":"10.1093/jnlids/idac029","DOIUrl":"https://doi.org/10.1093/jnlids/idac029","url":null,"abstract":"Abstract Intervention at the International Court of Justice (the Court) has re-emerged as a trending topic amid the Application of the Genocide Convention (The Gambia v Myanmar) and Allegations of Genocide under the Genocide Convention (Ukraine v Russian Federation). This article advances an approach to straightening the indeterminacy regarding the threshold of proof of the ‘which may be affected by the decision in the case’ expression under Article 62 of the Court’s Statute for non-party intervention. The Court deems the wording a second and substantive condition of the provision, the assessment of which remains controversial. Notwithstanding the permissiveness of the latest Order, Jurisdictional Immunities of the State(Germany v Italy), the complication lingers. The said Order did not refer to the requirement. It fell outside the purview of maritime boundary, to which all previous and inconsistent orders of the Court on non-party intervention relate.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136117870","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract For the past decades, international courts and tribunals have eluded the question of whether a State’s entitlement to a continental shelf beyond 200 nautical miles (nm) may extend within 200 nm of another State. The opacity around this question steered the International Court of Justice to surprisingly divide its oral proceedings in the pending dispute between Nicaragua and Colombia, so that it could address this legal predicament first. In similar circumstances, the International Tribunal for the Law of the Sea asked Mauritius and The Maldives to deal with the same question. While this is not the first time an international court or tribunal is asked to delimit a continental shelf beyond 200 nm, it will be the first where the ‘legal’ and the ‘geophysical’ entitlements enshrined in Article 76(1) of UNCLOS face each other. This article examines the current state of international law and proposes that the overlap between both entitlements is legally permissible, but the ‘legal’ entitlement enjoys further normative strength and will guide the equitable delimitation of the continental shelf.
{"title":"Competing over the continental shelf: the legal versus the geophysical entitlements","authors":"Benjamin Salas Kantor, Carolina Valdivia Torres","doi":"10.1093/jnlids/idac031","DOIUrl":"https://doi.org/10.1093/jnlids/idac031","url":null,"abstract":"Abstract For the past decades, international courts and tribunals have eluded the question of whether a State’s entitlement to a continental shelf beyond 200 nautical miles (nm) may extend within 200 nm of another State. The opacity around this question steered the International Court of Justice to surprisingly divide its oral proceedings in the pending dispute between Nicaragua and Colombia, so that it could address this legal predicament first. In similar circumstances, the International Tribunal for the Law of the Sea asked Mauritius and The Maldives to deal with the same question. While this is not the first time an international court or tribunal is asked to delimit a continental shelf beyond 200 nm, it will be the first where the ‘legal’ and the ‘geophysical’ entitlements enshrined in Article 76(1) of UNCLOS face each other. This article examines the current state of international law and proposes that the overlap between both entitlements is legally permissible, but the ‘legal’ entitlement enjoys further normative strength and will guide the equitable delimitation of the continental shelf.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"136 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135500276","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article draws upon multi-archival research to rediscover the experiences and research of Judges VK Wellington Koo and Shi Jiuyong at St John’s University in Shanghai and Columbia University in New York City. The former was the first Chinese person to be elected Vice President of the International Court of Justice while the latter became the first Chinese person to helm the Court. It aims to offer crucial insights into the making of these two eminent international judges from China and their perceptions of international law. More importantly, it sheds light on the movement of people—missionaries, law professors and diplomats—and the circulation of their ideas as drivers of the expansion of international law. This article strives to examine these understudied major figures to make the legal history of international dispute settlement more geographically and racially inclusive.
{"title":"A tale of two cities: the education and experiences of two ICJ judges in China and America","authors":"Li Chen","doi":"10.1093/jnlids/idac025","DOIUrl":"https://doi.org/10.1093/jnlids/idac025","url":null,"abstract":"\u0000 This article draws upon multi-archival research to rediscover the experiences and research of Judges VK Wellington Koo and Shi Jiuyong at St John’s University in Shanghai and Columbia University in New York City. The former was the first Chinese person to be elected Vice President of the International Court of Justice while the latter became the first Chinese person to helm the Court. It aims to offer crucial insights into the making of these two eminent international judges from China and their perceptions of international law. More importantly, it sheds light on the movement of people—missionaries, law professors and diplomats—and the circulation of their ideas as drivers of the expansion of international law. This article strives to examine these understudied major figures to make the legal history of international dispute settlement more geographically and racially inclusive.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"28 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2022-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74782674","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the light of China’s newly installed sanction laws recently being considered by Chinese court in a judicial review procedure for an arbitral award, this article examines two aspects of these laws that have been largely overlooked by previous research: their private international law nature and the impact they have on the enforcement of foreign arbitral awards. In their function, the Chinese sanction laws should neither fulfil the role of rules established to utilize private persons to implement Chinese state policy, nor, in their application, contradict China’s claimed role in the international legal and political framework. Accordingly, two routes are offered as to how these laws should be applied: first, the legal restrains on private enforcement of the sanction laws should be made available; and secondly, China should ensure that its sanction laws do not compromise the New York Convention’s remit.
{"title":"When International Commercial Arbitration meets China’s sanction laws: living together but remaining apart?","authors":"Beibei Zhang, W. Shen","doi":"10.1093/jnlids/idac024","DOIUrl":"https://doi.org/10.1093/jnlids/idac024","url":null,"abstract":"\u0000 In the light of China’s newly installed sanction laws recently being considered by Chinese court in a judicial review procedure for an arbitral award, this article examines two aspects of these laws that have been largely overlooked by previous research: their private international law nature and the impact they have on the enforcement of foreign arbitral awards. In their function, the Chinese sanction laws should neither fulfil the role of rules established to utilize private persons to implement Chinese state policy, nor, in their application, contradict China’s claimed role in the international legal and political framework. Accordingly, two routes are offered as to how these laws should be applied: first, the legal restrains on private enforcement of the sanction laws should be made available; and secondly, China should ensure that its sanction laws do not compromise the New York Convention’s remit.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"69 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2022-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85382879","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The trend of ‘investment facilitation’ is increasingly attracting lively discussions in the field of international investment policies. The reason for this is that countries expect to use ‘investment facilitation’ as a policy tool to improve the domestic investment environment. In this trend, as an important part of the realization path of ‘investment facilitation’, there is an increasing concern on how to reform the international investment dispute settlement mechanism to achieve amicable settlement of investment frictions between investors and host states. China, Brazil and South Africa have proposed three different options for reforming the international investment dispute settlement mechanism under the trend of ‘investment facilitation’. Based on the analysis of the three countries’ dispute settlement mechanism reform models, this article examines their impact on the international investment governance mechanism and finally proposes inspirations for the design and reform of future international investment dispute settlement models in developing countries.
{"title":"Investment Facilitation for Development and the Reform of International Investment Dispute Settlement Mechanism: The Choice of Developing Countries","authors":"Yanyan Tang","doi":"10.1093/jnlids/idac023","DOIUrl":"https://doi.org/10.1093/jnlids/idac023","url":null,"abstract":"\u0000 The trend of ‘investment facilitation’ is increasingly attracting lively discussions in the field of international investment policies. The reason for this is that countries expect to use ‘investment facilitation’ as a policy tool to improve the domestic investment environment. In this trend, as an important part of the realization path of ‘investment facilitation’, there is an increasing concern on how to reform the international investment dispute settlement mechanism to achieve amicable settlement of investment frictions between investors and host states. China, Brazil and South Africa have proposed three different options for reforming the international investment dispute settlement mechanism under the trend of ‘investment facilitation’. Based on the analysis of the three countries’ dispute settlement mechanism reform models, this article examines their impact on the international investment governance mechanism and finally proposes inspirations for the design and reform of future international investment dispute settlement models in developing countries.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"43 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78704760","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Recent years have seen the meteoric rise of the concept of an ‘international commercial court’ in numerous jurisdictions: for example, Dubai established the Dubai International Finance Centre Courts in 2004, Qatar followed suit in 2009 and similar courts have been set up since in Singapore, Kazakhstan, China, Germany, France and the Netherlands. Much work has been done discussing the practicalities of such courts but little thought seems to have been given to the theoretical justification for, and theoretical problems posed by, such courts. In general, such courts are justified on the basis of party autonomy; however, it is not at all clear that party autonomy is the only, or even the main, consideration in international dispute resolution. States also have a clear interest in ensuring that disputes are decided in their jurisdiction to further the development and viability of their own legal system. Other theoretical issues which arise regarding such courts include whether justice is a commodity which can be bought and sold and the potential use of such courts to ‘whitewash’ the serious rule of law concerns that exist in the ordinary courts of certain jurisdictions.
{"title":"The Rise of the International Commercial Court: A Threat to the Rule of Law?","authors":"L. C. Alcolea","doi":"10.1093/jnlids/idac022","DOIUrl":"https://doi.org/10.1093/jnlids/idac022","url":null,"abstract":"\u0000 Recent years have seen the meteoric rise of the concept of an ‘international commercial court’ in numerous jurisdictions: for example, Dubai established the Dubai International Finance Centre Courts in 2004, Qatar followed suit in 2009 and similar courts have been set up since in Singapore, Kazakhstan, China, Germany, France and the Netherlands. Much work has been done discussing the practicalities of such courts but little thought seems to have been given to the theoretical justification for, and theoretical problems posed by, such courts. In general, such courts are justified on the basis of party autonomy; however, it is not at all clear that party autonomy is the only, or even the main, consideration in international dispute resolution. States also have a clear interest in ensuring that disputes are decided in their jurisdiction to further the development and viability of their own legal system. Other theoretical issues which arise regarding such courts include whether justice is a commodity which can be bought and sold and the potential use of such courts to ‘whitewash’ the serious rule of law concerns that exist in the ordinary courts of certain jurisdictions.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"2 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2022-08-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89610207","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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