The EU treaties allow the Union legislature to establish specialised courts within the institution of the Court of Justice. This possibility was inserted by the Treaty of Nice, and by 2005, the Union’s first and only specialised court to date was established—the Civil Service Tribunal (‘CST’). The judicial architecture of the Union has undergone transformative changes in recent years, and as part of the reforms, the CST was abolished in 2016, marking an abrupt end to the Union’s brief use of specialised courts. This article offers an interim post-mortem of specialised courts, examining the Union’s experimentalism with a three-tier judicial institution by focusing on two unique features. Firstly, the role of judges at specialised courts; and secondly, the review procedure that may be undertaken by the Court of Justice. The article contemplates the future of specialised courts, drawing some constitutional lessons that can be learnt from this brief experiment.
Treaty organs constitute a new system of international cooperation. The lack of definition and regulation for these new entities and their particularities deserves in-depth analysis due to its proliferation, especially in the area of international environmental law. This article will analyse the establishment of treaty organs and will seek a definition that allows them to be differentiated from international organizations. It will give attention to the concept of a set of organs and legal personality to determine the differences between international organizations and treaty organs. Finally, the possible application of international institutional law to treaty organs will be studied.
The Right to Appeal in International Criminal Law Dražan Djukić describes appeal proceedings in international criminal law and evaluates them against human rights benchmarks. While international criminal courts and tribunals mainly comply with these benchmarks, they have fallen short in certain important areas.
Despite their importance to the legal process, appeal proceedings tend to receive limited attention. On the basis of benchmarks arising from international human rights law, Dražan Djukić systematically assesses the law and practice concerning appeal proceedings in international criminal law.
Recent decisions of European and national courts, as well as those of arbitral tribunals, concerning the Achmea saga seem to be plentiful enough to draw preliminary conclusions as to the relationship between EU law, intra-EU international investment agreements (IIAs) and the national laws of EU-Member States. In order to get the proper picture of the situation, however, it is necessary not only to analyse the recent decisions of the Court of Justice of the European Union (CJEU) and their consequences from these three perspectives, but, equally, to understand how they interact with each other. Such an analysis indicates the real possibility of the emergence of a rift between the practice of the EU and national courts rejecting the validity of investment arbitration agreements, on the one hand, and investment tribunals, on the other. In any case, such a divergence would put into question the IIAs’ claim to provide a stable regulatory framework for international investments in the EU, which, in turn, would strengthen the argument for termination of intra-EU IIAs.
This article deals with the ethical implications of arbitrator resignations. When an arbitrator resigns it can severely disrupt proceedings. Arbitrators have a positive duty to complete the mandate for which they have been appointed, and a corollary duty not to resign without justification. This article considers steps that can be taken at the outset of proceedings to minimise the likelihood of resignation. It then discusses ethical dilemmas associated with five common circumstances that can arise during the course of arbitral proceedings which might justify resignation. The article then recalls rare but disturbing instances when a resignation itself may be ethically dubious and sets out measures available to discourage such conduct. Ethical issues connected with resignation have traditionally been given less prominence than discussion of conflicts and challenges, but should not be overlooked in any new endeavors aimed at developing a code of conduct for international arbitration.
Since Hissène Habré’s Judgment by the Extraordinary African Chambers (EAC), the world has anxiously awaited the processes that the African Union (AU) would put in place for the amelioration of the victims’ circumstances. Pursuant to the AU’s pledge and unfaltering support for the EAC, in early 2018 the AU Heads of State and Government Assembly adopted a Statute establishing the Hissène Habré Victims Trust Fund. It is anticipated that the Fund is likely to be an unsteady vehicle facing numerous challenges regarding law and policy formulation, interpretation and implementation, such as flawed decision-making processes, and a lack of proper policy direction and State cooperation, which have the potential of heavily impeding this international criminal justice enterprise. However, there exists an opportunistic trajectory for the Fund as the current trends, practices and rich jurisprudence of other criminal tribunals and courts can inform the Fund’s processes and positions. The Fund’s decision-makers should make a concerted effort in a sturdy and convergent direction that mirrors the victims’ potential values, consonant outcomes and responsibilities.
The present column covers procedural developments at the International Court of Justice for the period spanning from 1 April 2017 to 31 January 2019. Those comprise the interpretation of compromissory clauses; res judicata; admissibility challenges based on abuse of rights and abuse of process; conditions for the indication of provisional measures, in particular the requirement that the rights asserted be plausible; and the admissibility of counter-claims.
In April 2016, the International Court of Justice held a colloquium to commemorate the 70th anniversary of its establishment. One of the principal themes of this event was the potential adoption of improvements to the procedures and working practices of the Court. Responses to a Counsel Survey revealed a general interest in procedural reform at the Court, particularly with respect to the areas of evidence and procedural efficiency. The purpose of this article is to set out a case for procedural reform at the ICJ, presenting multiple options, with supplementary reference to the ITLOS. Whereas the work of the Committee also addresses procedural integrity or “the sound administration of justice”, this contribution will focus upon the Court’s case management procedures to call for their reform in order to enhance procedural economy. This would enable the Court to improve its “throughput” to be able to cope with an expanded caseload.
Consensus-Based Interpretation of Regional Human Rights Treaties Francisco Pascual-Vives examines the central role played by the notion of consensus in the case law of the European and Inter-American Courts of Human Rights. As many other international courts and tribunals do, both regional human rights courts resort to this concept while undertaking an evolutive interpretation of the Rome Convention and the Pact of San José, respectively. The role exerted by the notion of consensus in this framework can be used not only to understand the evolving character of the rights and freedoms recognized by these international treaties, but also to reaffirm the international nature of these regional human rights courts.
Within the debate on the attribution of international responsibility to international organizations and/or its Member States, the role that the internal rules of the organization may play is not settled. The competence-based approach, where a relationship is supposed to exist between the eu/Member States’ division of competences and international responsibility, and the normative control doctrine, where the Union is deemed responsible for the actions of its Member States in the course of implementing eu law, are at the heart of such debate. This contribution aims to investigate whether the recent practice concerning the Union’s international responsibility in the fields of fisheries and investment adds clarifying elements. The analysis will specifically focus on the 2015 itlosAdvisory Opinion (Case No 21), an award under the Energy Charter Treaty (Electrabel v Hungary), and the investor-to-state dispute settlement mechanisms laid down in the recent eu bilateral investment agreements. Although one of these cases seems to implicitly recognise the normative control as a rule for the attribution of conduct to the eu when its Member States act implementing Union acts, what is missing, however, is a clear and deep debate on its specific elements. Discussions on a competence-based approach and normative control seem generally confused at the eu as well as at the international community level, suggesting that important opportunities have been missed to properly re-open the debate on the role of the organizations’ internal rules for the attribution of international responsibility.