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Introduction to International Dispute Settlement
Outline
1. Preliminary matters
2. What is international dispute settlement?
3. ICJ
4. PCA
5. Dispute Settlement and Law of the Sea
Preliminary Matters
● Reading materials
○ Facts
○ Applicable Rules
○ Procedural history
○ Decision / holding
○ Rational / reasoning
What is international dispute settlement?
● Bilateral / multilateral disputes
● Factual / legal disputes
● No rule in International Law that disputes must be settled
○ If they do, obliged until PIL to do so peacefully (Art 2(4) UN Charter)
Article 33
(1) The parties to any dispute, the continuance of which is likely to endanger the
maintenance of international peace and security, shall, first of all, seek a solution by
negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to
regional agencies or arrangements, or other peaceful means of their own choice.
(2) The Security Council shall, when it deems necessary, call upon the parties to settle
their dispute by such means.
● Range of methods listed (non-legal and legal)
○ Inquiry → Process in which information is gathered in relation to a disputed
factual issue
■ Value lies in establishing an impartial record of the facts, which helps
establish fault and causation, and how to calculate loss and injury
○ Conciliation
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■ Further formalized the role of the third party, which may investigate a
dispute and propose a solution, usually thought the submission of a
non-binding final report to be considered by the parties
○ **Inquiry and Conciliation produce non-binding outcomes
○ Arbitration is a procedure for the binding settlement of a dispute through the
application of legal rules by decision-makers who are selected by and with the
participation of the disputing parties
○ Adjudication also involves a procedure for the binding settlement of a dispute
through the application of legal rules, but decision-makers are members of a
permanent institution
○ **Litigation does not mean that dispute is settled
■ Eg. Nort Sea Continental Shelf (just wanted the court to tell them how to
draw the line, not what the line was)
International Court of Justice
● Established in 1945 with the UN
○ Principle judicial order
● Predecessor PCIJ
● ICJ unique:
○ Oldest standing international court
○ General jurisdiction
● Custom → 3 seats for African judges; 2 latin america / caribbean; 3 from Asia; 5 West; 2
Eastern Europe
○ European emphasis
● Election of judges (reading notes)
● Judge ad hoc (reading notes)
○ Criticism
Contentious Jurisdiction
● Legal disputes submitted to the Court by States
● ! Limited to States alone (Art 34)
● Judgements are binding
Non-Contentious Jurisdiction / Advisory Opinions
● Court limited to giving advisory opinions on legal questions, and have to be brought by a
very limited number of agencies (GA; UNSC; Specialized agencies) – Art 96 UN Charter
● Not binding
● In practice, many recent ICJ AOs have related to ongoing disputes
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○ Eg. Chagos Archipielago AO ; Israel Wall; Kosovo Independence
Permanent Court of Arbitration
● In the 1800s Arbitration became a popular way to solve disputes
○ Eg. 1872 Alabama Claims Arbitration
● Not a standing court; actually an administrative umbrella under which you have ad hoc
arbitration tribunals
● Inter state organization that administers arbitration, as well as other forms of dispute
settlement
● 122 members
● 1899 and 1907 Hague Conventions
● List of arbitrators, that essentially provides names and qualifications of people who can
serve as arbitrators
○ Each member of PCA can each appoint 4
● PCA got off to a good start in its early years (1899-1920)
○ Then PCIJ became the centre of gravity
○ Almost stopped being used as an institution
○ Revival, 1990s/2000s
■ Lots of treaties concluded between 1960s and 80s providing for interstate
arbitration, but did not give it a home
■ Made itself a more flexible institution (rival to ICJ)
Dispute Settlement and Law of the sea
● 1982 UN Convention on the Law of the Sea
● Part XV Dispute Settlement
○ Section 1: General Provisions
○ Section 2: Compulsory procedures entailing binding decisions
○ Article 287 (1)
■ ITLOS
■ ICJ
■ Annex VII arbitral tribunal** (arbitration most commonly used)
● Default method in practice (para 3&5 of Art. 287)
International Tribunal for the Law of the Sea
● Hamburg, 1996
● Very similar to ICJ
● Certain diversity should be on the bench
○ Particular distribution, less Western than at the ICJ
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● Can appoint judge ad hoc
● Specialized chambers within the Tribunal
○ Has not been used much (like the ICJ)
● Case law underwhelming
○ 29 cases, primarily concerning prompt release of detained vessels or provisional
measures
Trade and Investment-Related Disputes
● The private sector has a stake in these disputes
○ Investor-State Disputes, private actors can bring claims themselves before an
international tribunal
ICSID
● Established in 1966
● Preferred forum for the settlement of investor disputes
● Foreign Direct Investment, goal os stimulating development in LEDCs
● Background of investors → expropriation
○ Represents the most serious form of interference a host state can take
○ Taking of assets of foreign companies or investors and those asets are taken by
the host against the wishes / without consent
○ Deprivation of the right of property
○ Direct vs indirect expropriation
■ Direct: Host state formally takes the property of the foreign investor
● Sometimes occurs on individual basis but can also occur at
massive scale, through nationalization
● Happened after colonialism ended; state of nationalization in
industrial sectors trying to take control of their economies and
companies
■ Indirect: interference by the host state, falling short of actual transfer of
title to the property
● More common today
● Includes excessive regulation that amounts to a taking bc totally
deprives investor of the benefits of its investment (no more
economic value)
● What is relevant if the effect of the actions taken (not the reasons
why the government took them)
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Introduction to International Dispute Settlement
Outline
1. Preliminary matters
2. What is international dispute settlement?
3. ICJ
4. PCA
5. Dispute Settlement and Law of the Sea
Preliminary Matters
● Reading materials
○ Facts
○ Applicable Rules
○ Procedural history
○ Decision / holding
○ Rational / reasoning
What is international dispute settlement?
● Bilateral / multilateral disputes
● Factual / legal disputes
● No rule in International Law that disputes must be settled
○ If they do, obliged until PIL to do so peacefully (Art 2(4) UN Charter)
Article 33
(1) The parties to any dispute, the continuance of which is likely to endanger the
maintenance of international peace and security, shall, first of all, seek a solution by
negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to
regional agencies or arrangements, or other peaceful means of their own choice.
(2) The Security Council shall, when it deems necessary, call upon the parties to settle
their dispute by such means.
● Range of methods listed (non-legal and legal)
○ Inquiry → Process in which information is gathered in relation to a disputed
factual issue
■ Value lies in establishing an impartial record of the facts, which helps
establish fault and causation, and how to calculate loss and injury
○ Conciliation
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■ Further formalized the role of the third party, which may investigate a
dispute and propose a solution, usually thought the submission of a
non-binding final report to be considered by the parties
○ **Inquiry and Conciliation produce non-binding outcomes
○ Arbitration is a procedure for the binding settlement of a dispute through the
application of legal rules by decision-makers who are selected by and with the
participation of the disputing parties
○ Adjudication also involves a procedure for the binding settlement of a dispute
through the application of legal rules, but decision-makers are members of a
permanent institution
○ **Litigation does not mean that dispute is settled
■ Eg. Nort Sea Continental Shelf (just wanted the court to tell them how to
draw the line, not what the line was)
International Court of Justice
● Established in 1945 with the UN
○ Principle judicial order
● Predecessor PCIJ
● ICJ unique:
○ Oldest standing international court
○ General jurisdiction
● Custom → 3 seats for African judges; 2 latin america / caribbean; 3 from Asia; 5 West; 2
Eastern Europe
○ European emphasis
● Election of judges (reading notes)
● Judge ad hoc (reading notes)
○ Criticism
Contentious Jurisdiction
● Legal disputes submitted to the Court by States
● ! Limited to States alone (Art 34)
● Judgements are binding
Non-Contentious Jurisdiction / Advisory Opinions
● Court limited to giving advisory opinions on legal questions, and have to be brought by a
very limited number of agencies (GA; UNSC; Specialized agencies) – Art 96 UN Charter
● Not binding
● In practice, many recent ICJ AOs have related to ongoing disputes
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○ Eg. Chagos Archipielago AO ; Israel Wall; Kosovo Independence
Permanent Court of Arbitration
● In the 1800s Arbitration became a popular way to solve disputes
○ Eg. 1872 Alabama Claims Arbitration
● Not a standing court; actually an administrative umbrella under which you have ad hoc
arbitration tribunals
● Inter state organization that administers arbitration, as well as other forms of dispute
settlement
● 122 members
● 1899 and 1907 Hague Conventions
● List of arbitrators, that essentially provides names and qualifications of people who can
serve as arbitrators
○ Each member of PCA can each appoint 4
● PCA got off to a good start in its early years (1899-1920)
○ Then PCIJ became the centre of gravity
○ Almost stopped being used as an institution
○ Revival, 1990s/2000s
■ Lots of treaties concluded between 1960s and 80s providing for interstate
arbitration, but did not give it a home
■ Made itself a more flexible institution (rival to ICJ)
Dispute Settlement and Law of the sea
● 1982 UN Convention on the Law of the Sea
● Part XV Dispute Settlement
○ Section 1: General Provisions
○ Section 2: Compulsory procedures entailing binding decisions
○ Article 287 (1)
■ ITLOS
■ ICJ
■ Annex VII arbitral tribunal** (arbitration most commonly used)
● Default method in practice (para 3&5 of Art. 287)
International Tribunal for the Law of the Sea
● Hamburg, 1996
● Very similar to ICJ
● Certain diversity should be on the bench
○ Particular distribution, less Western than at the ICJ
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● Can appoint judge ad hoc
● Specialized chambers within the Tribunal
○ Has not been used much (like the ICJ)
● Case law underwhelming
○ 29 cases, primarily concerning prompt release of detained vessels or provisional
measures
Trade and Investment-Related Disputes
● The private sector has a stake in these disputes
○ Investor-State Disputes, private actors can bring claims themselves before an
international tribunal
ICSID
● Established in 1966
● Preferred forum for the settlement of investor disputes
● Foreign Direct Investment, goal os stimulating development in LEDCs
● Background of investors → expropriation
○ Represents the most serious form of interference a host state can take
○ Taking of assets of foreign companies or investors and those asets are taken by
the host against the wishes / without consent
○ Deprivation of the right of property
○ Direct vs indirect expropriation
■ Direct: Host state formally takes the property of the foreign investor
● Sometimes occurs on individual basis but can also occur at
massive scale, through nationalization
● Happened after colonialism ended; state of nationalization in
industrial sectors trying to take control of their economies and
companies
■ Indirect: interference by the host state, falling short of actual transfer of
title to the property
● More common today
● Includes excessive regulation that amounts to a taking bc totally
deprives investor of the benefits of its investment (no more
economic value)
● What is relevant if the effect of the actions taken (not the reasons
why the government took them)
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