Interstate Litigation and Arbitration

A fundamental principle of international law that requires states to resolve their disputes peacefully, without resorting to violence. It is a cornerstone of international relations, advocating for diplomacy and negotiation.

The PSD was initially a choice, but later evolved into a legal obligation. First enshrined in the Hague Conventions of 1907, it became a core principle of the UN Charter in 1945.

The PSD is closely linked to the prohibition of the use of force, except in cases of self-defense or authorization by the UN Security Council. These principles work together to maintain international peace and security.

The PSD serves a broader purpose than simply ending wars. It encompasses creating conditions that foster social, economic, and legal harmony, discouraging the need for force.

The PSD primarily requires states to conduct their affairs in a manner that promotes peace. It doesn't force them to resolve every dispute, but emphasizes using peaceful means.

The PSD grants states the freedom to choose the most appropriate mechanism for resolving their disputes. This reflects the principle of state sovereignty and allows for flexibility in international relations.

Diplomatic mechanisms involve negotiations, good offices, mediation, and conciliation. These methods typically involve third parties acting as facilitators, encouraging dialogue and offering potential solutions.

Judicial mechanisms include arbitration and litigation. These processes offer legally binding decisions based on law, with different procedures and compositions depending on the forum.

The emergence of various international courts and tribunals signifies the growing importance of international law and judicial dispute resolution. However, these bodies haven’t achieved complete unity or a hierarchy of authority.

If a state refuses to comply with a tribunal's decision, there are limited legal options. While the UNSC provides legal recourse, it has rarely been invoked in practice. Often, non-compliance is a political decision.

Concerns exist that some international courts may prioritize diplomatic solutions over purely legal principles, raising questions about impartiality and the true nature of international justice.

The International Court of Justice (ICJ) is the principal judicial organ of the UN, serving as a universal court for states. It is a specialized court for disputes between states, does not have a constitutional or appellate role, and requires the consent of parties.

Other international tribunals include the Permanent Court of Arbitration (PCA), the International Tribunal for the Law of the Sea (ITLOS), and specialized courts within international organizations like the EU and regional bodies.

International criminal tribunals, such as the ICTY, ICTR, and the ICC (International Criminal Court), aim to prosecute individuals for serious crimes like genocide and crimes against humanity, emphasizing individual accountability.

International human rights committees act as quasi-judicial bodies, examining states' compliance with human rights treaties and processing individual complaints. They adopt views, which are recommendations for redress, not binding rulings.

The principle of jurisdiction in international adjudication emphasizes the need for state consent to be subject to a court's authority. No court can impose its jurisdiction on a state without its consent.

Even if a state has initially accepted jurisdiction, it cannot unilaterally withdraw its consent once a case is underway. The court will proceed with the merits of the case regardless of the state's participation.

States can consent to a court's jurisdiction through direct acceptance during a dispute or indirectly by a treaty (compromissory clause, optional protocol) or unilateral declaration.

A compromissory clause in a treaty allows the state to submit a specific type of dispute to the court, ensuring future disputes related to that treaty will be settled through judicial means.

A unilateral declaration made by a state can be a clear expression of its consent to the court's jurisdiction for specific disputes as outlined in the declaration, providing legal certainty for future cases.

The forum prorogatum arises when a state, by its actions, implicitly accepts the court's jurisdiction even if it doesn't formally agree. This often involves informal consent or a clear indication of willingness.

International criminal courts, created by the UNSC, have a dictatorial jurisdiction due to the lack of consent from the states involved. The tribunals are established under the authority of the UNSC.

The principle of complementarity governs international criminal courts' interaction with domestic courts. These courts act as a last resort, intervening only when national courts are unwilling or unable to prosecute.

The principle of good faith is essential for the successful implementation of court decisions. Parties are obligated to enforce judgments in a spirit of cooperation, avoiding unilateral solutions.

The principle of res judicata signifies that a court’s decision is binding only on the specific parties involved in that case. However, advisory opinions, while not legally binding, can have significant legal and political influence.

The enforcement of a judicial decision rests on the states' autonomous ability to implement those decisions within their national legal systems. While courts can suggest methods, they generally do not impose specific enforcement mechanisms.

Mixed arbitration concerns disputes between private investors and states, stemming from the need to protect foreign investors' rights and activities in host states.

The minimum standard of treatment (MST) establishes basic protections for foreign investors, including national treatment, protection of acquired rights, property protection, and access to justice. It is considered customary international law.

Diplomatic protection refers to the intervention of a state on behalf of its citizens abroad when their rights have been violated. It is a discretionary power with several limitations, including a requirement of exhaustion of domestic remedies.

Mixed claims commissions were established after major events like revolutions or wars to resolve disputes between states, facilitating a centralized mechanism for handling claims.

The development of mixed arbitration stems from two key factors: the growth of specialized arbitration institutions and the emergence of international investment standards, including specific treaties.

Mixed arbitration is inherently private, involving parties choosing the procedure, arbitrators who are not state officials, and flexible procedures that allow tailored solutions. It contrasts with public litigation systems.

Several institutions handle mixed arbitration cases, including ICSID, PCA, LCIA, SCC, and ICC, each offering different procedures and enforceability options.

The concept of jurisdiction rationae voluntatis focuses on the consent of the parties involved in mixed arbitration. This consent can be established through contracts, treaties, or specific national legislation.

Jurisdiction rationae materiae concerns the substance of the dispute. In mixed arbitration, it ensures that the dispute is related to investment and falls within the scope of the agreement establishing the tribunal.

Jurisdiction rationae personae determines the eligibility of the parties involved in mixed arbitration. It requires the investor to be a national of a contracting state and the state to be a contracting state.

The ICSID Convention establishes a framework for mixed arbitration through its formal procedures, including filling a request, screening, registering, establishing a tribunal, paying fees, and commencing formal proceedings.

Determining applicable law in mixed arbitration involves identifying the most relevant sources, including contracts, national laws, international agreements, and regional standards, giving priority to the parties' intentions and relevant treaties.

The fair and equitable treatment (FET) standard is a fundamental rule in mixed arbitration, requiring states to treat foreign investors fairly and consistently, including adhering to principles of transparency and predictability.