Interstate Litigation and Arbitration
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Questions and Answers

What is the principle of PSD (Peaceful Settlement of Disputes)?

The principle of PSD obligates states to settle disputes peacefully, using various means instead of resorting to force. This principle emphasizes resolving disputes through negotiation, diplomacy, and judicial mechanisms.

What are the sources of the principle of PSD?

The principle of PSD was first enshrined in the Hague Convention on the Pacific Settlement of Disputes in 1907 but has evolved into a general obligation. It was further recognized in the UN Charter and gained prominence with the adoption of the General Resolution 2625 of the UNGA. The principle is confirmed in various international legal documents and through jurisprudence such as the 2018 ICJ judgement on 'Obligation to Negotiate Access to the Pacific Ocean' (Bolivia v. Chile).

What are the two main exceptions to the prohibition of the use of force in the UNC?

  • Military exercises and training missions
  • Humanitarian intervention and protection of human rights
  • Economic sanctions and embargoes
  • Self-defense and authorization by the UNSC (United Nations Security Council) (correct)

    • The PSD is a goal in itself, not a tool to achieve something else.

    <p>False</p> Signup and view all the answers

    Which of the following is NOT a diplomatic mechanism for settling disputes peacefully?

    <p>Arbitration</p> Signup and view all the answers

    What is the key difference between arbitration and litigation in terms of procedure?

    <p>Arbitration allows parties more freedom to determine the procedure, whereas litigation follows a pre-established procedure determined by law. Arbitration is flexible and tailored to the specific dispute, while litigation follows stricter and more formal rules.</p> Signup and view all the answers

    Which of the following is NOT a permanent international court or tribunal?

    <p>International Center for the Settlement of Investment Disputes (ICSID)</p> Signup and view all the answers

    How is the principle of sovereignty related to the jurisdiction of international courts?

    <p>The principle of sovereignty dictates that states are sovereign entities and cannot be compelled to submit to a court's jurisdiction without their consent. International courts rely on the consent of states to adjudicate disputes, as their jurisdiction is not imposed but rather agreed upon by the parties involved.</p> Signup and view all the answers

    What are the consequences of a state refusing to appear before the ICJ once jurisdiction is established?

    <p>The ICJ can proceed with the case and deliver a judgment even if the state does not participate. The court considers the non-participation of a state as a strategic choice that does not legally prevent it from exercising its judicial authority and resolving the case.</p> Signup and view all the answers

    Which of the following is NOT a means by which a state can consent to the jurisdiction of the ICJ?

    <p>Adoption of a national law</p> Signup and view all the answers

    The ICC (International Criminal Court) enjoys a primacy of jurisdiction over national courts when dealing with international crimes.

    <p>False</p> Signup and view all the answers

    Which of the following is NOT a rule relevant to the minimum standard of treatment (MST) for aliens abroad?

    <p>Protection of political rights</p> Signup and view all the answers

    What are the limitations of diplomatic protection as a remedy for foreign investors?

    <p>Diplomatic protection is discretionary, limited by the nationality condition, and can be a lengthy process. Compensation, if awarded, goes to the state, not directly to the investor. These limitations led to the development of alternative mechanisms, like mixed claims commissions and then modern mixed arbitration, which offer direct and more accessible remedies for investors.</p> Signup and view all the answers

    What are the key differences between traditional commercial arbitration and mixed arbitration?

    <p>Mixed arbitration involves disputes between private investors and states, focusing on foreign investments, while traditional commercial arbitration centers on disputes between private entities. Mixed arbitration incorporates international investment law principles and provisions of BITs, while traditional arbitration generally focuses on commercial contracts and laws.</p> Signup and view all the answers

    Which of the following is NOT one of the major institutions dealing with mixed arbitration and investment disputes?

    <p>International Court of Justice (ICJ)</p> Signup and view all the answers

    What are the three main elements necessary to establish jurisdiction in an ICSID arbitration?

    <p>These are: ratione voluntatis (consent of the parties), ratione materiae (substance of the dispute), and ratione personae (jurisdiction over the parties). All three elements must be present for the ICSID tribunal to have jurisdiction in the case.</p> Signup and view all the answers

    What are the main criteria for determining if an economic relationship qualifies as an 'investment' in the context of ICSID arbitration, as outlined in the 2001 Salini v. Morocco case?

    <p>The criteria are: substantial financial contribution, duration, risk, and contribution to the host state's economic development. The Salini Formula emphasizes that an investment should involve a significant financial commitment, a long-term outlook, an element of risk, and a positive impact on the host state's economy.</p> Signup and view all the answers

    Which of the following is NOT a possible remedy available to an investor in an ICSID arbitration?

    <p>Appeal of the award to a higher court</p> Signup and view all the answers

    The EU's Court of Justice has jurisdiction over all cases concerning EU law.

    <p>False</p> Signup and view all the answers

    What is the primary function of the Court of Justice of the European Union (CJEU)?

    <p>The CJEU ensures the uniform application and interpretation of EU law across all member states. It acts as the supreme court of the EU, interpreting EU treaties and ensuring that national courts apply EU law consistently.</p> Signup and view all the answers

    Which of the following is NOT a type of action that can be brought before the CJEU?

    <p>Criminal prosecutions</p> Signup and view all the answers

    What are the two main conditions for a national court to refer a question to the CJEU for a preliminary ruling?

    <p>The first condition is that the question must be necessary for the national court to deliver a judgment. The second condition is that there must be no judicial remedy available under national law for the specific issue.</p> Signup and view all the answers

    What is the primary objective of the 'action for failure to fulfill an obligation' (recours en manquement) in EU law?

    <p>The objective of this action is to ensure that member states comply with their obligations under EU treaties and legislation. It is a mechanism for holding member states accountable for any failure to uphold their EU commitments.</p> Signup and view all the answers

    Which of the following conditions is NOT necessary for private parties to bring an action for annulment before the CJEU?

    <p>They must have exhausted all domestic legal remedies.</p> Signup and view all the answers

    EU institutions can initiate an 'action for failure to act' without demonstrating a legitimate interest.

    <p>True</p> Signup and view all the answers

    What is the primary purpose of the 'objection of illegality' in EU law?

    <p>To challenge the validity of an EU act while resolving a different dispute.</p> Signup and view all the answers

    Study Notes

    Interstate Litigation and Arbitration

    • Interstate disputes are primarily settled through negotiation, with litigation as a last resort.
    • States must consent to court jurisdiction.
    • The peaceful settlement of disputes (PSD) is now a general obligation, evolving from optional principles.
    • The Hague Convention (1907) and UN Charter (1945) enshrined this obligation.
    • PSD is linked to the prohibition of the use of force, with exceptions for self-defense and UN Security Council authorization.
    • PSD is a mechanism to create conditions for avoiding the use of force, not exclusively ending war.
    • States have the freedom to choose dispute resolution methods; negotiation, good offices, mediation, conciliation, arbitration, and litigation are options.
    • Mechanisms are subsidiary; states may prioritize specific agreements.
    • International courts' decisions lack enforcement mechanisms, but are mostly respected. Several international tribunals exist (ICJ, PCA, ITLOS) with differing scopes and jurisdictions. These are based on consent and may face challenges enforcing decisions.
    • International criminal tribunals (ICTY, ICTR, ICC) address individual accountability for international crimes

    Mixed Arbitration (Private Actor v. State)

    • Mixed arbitration's development is tied to protecting foreign investors' rights in other countries.
    • Minimum Standard of Treatment (MST) offers some protection against unfair treatment by host states, though not universally adopted. Key elements of MST (national treatment, protection of acquired rights, property, contracts, and access to justice) protect foreign interests.
    • Diplomatic protection allows the home state to act on behalf of its citizens, but it has limitations (discretionary, nationality condition, exhaustion of local remedies).
    • Mixed claims commissions emerged to facilitate claims, but have disadvantages, particularly with uncertain enforcement mechanisms and state control.
    • Institutional developments (e.g., ICSID) and evolving investment rules (BITs) propelled the growth of mixed arbitration.
    • BITs promote fair and equitable treatment, full protection and security, and national/most-favored-nation treatment, often including a compromissory clause for arbitration.
    • Mixed arbitration is a private process where parties have substantial procedural autonomy.
    • Institutional arbitration offers established procedures, potentially quicker and less costly than ad-hoc arbitration.
    • Jurisdiction hinges on consent (contractual, treaty, or national law), subject matter (investment link), and involved parties (investor nationality/entity status).
    • Identifying applicable law requires considering multiple sources (contracts, BITs, national laws) with a focus on intent and fairness.
    • FET Standard (Fair and Equitable Treatment), along with stability clauses, helps determine the applicable standards.

    International Court of Justice (ICJ)

    • The ICJ is the principal judicial organ of the UN.
    • It's a universal court with general jurisdiction, but only for consenting states.
    • The ICJ's decisions are binding on the parties involved and subject to the principle of res judicata.

    International Criminal Court (ICC)

    • The ICC is a permanent international criminal court.
    • The ICC's jurisdiction is founded on the principle of complementarity, not primacy, focusing on cases where domestic courts are unable or unwilling to prosecute.

    Other Dispute Resolution Mechanisms

    • Other UN committees (human rights) provide non-binding recommendations, but states can be required to implement them.
    • Procedures like the exhaustion of local remedies and admissibility filters complaints.
    • Forum prorogatum allows states to indirectly accept jurisdiction, and different ways can help establish jurisdiction.

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    Description

    This quiz explores the mechanisms of interstate dispute resolution, highlighting the roles of negotiation, arbitration, and litigation. It discusses important agreements like the Hague Convention and UN Charter and their implications on the peaceful settlement of disputes. Enhance your understanding of how states can resolve conflicts while adhering to international law.

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