The term bilateral investments treaties refers to bilateral agreements for the promotion and mutual protection of investments. The main goal of bits is to create favourable conditions for investments by investors of one contracting party in the territory of the other contracting party. But bits give investors additional benefits, such as access to neutral investor-state dispute settlement. When a dispute between a contracting State and an investor of the other contracting State cannot be settled in an amicable way, investors can submit the dispute to an arbitration procedure. Similar clauses are commonly used in around 200 bits concluded between Member States of the EU and in hundreds around the world. On 6 March 2018, the cjeu ruled in the Achmea case that such bits violated EU law. This chapter analysis of the relations between arbitration and national and international courts (international arbitration), through a number of questions. How deep are these relations with national courts and is the judicial review of the validity of the arbitral decision made by the national courts possible? If so, to what extent can such judicial review be exercised by national courts and are these procedures valid and final? What about the possibility of parallel international commercial arbitration or judicial proceedings? How can these interactions impact on the uniform interpretation of international law?
The importance that international lawyers assign to precedents of international courts and tribunals is evident in international law. Precedents in legal argumentation are capable of constraining the behaviour of international lawyers, either consciously or unconsciously. But among the different international courts and tribunals, undeniably the decisions of the International Court of Justice (icj) have a special impact on the field. This is because, regardless of the formal binding character or the lack thereof of its precedents, they are usually taken as anchors by international lawyers when building their arguments. This may be explained by a non-traditional notion of “authority” that international lawyers grant to icj’s precedents, in the sense of a voluntary submission or deference entitlement, socially sanctioned and enforced. As such, icj precedents constrain international lawyers’ behaviour based on a collective belief that one can trust icj judgments regardless of their content, and on their capacity to make others believe that. This chapter discusses these two sides of icj’s authority in play, as an institution itself (institutional constraints) and the authority of its precedents (discursive constraints). It puts forward that this dynamic reveals international law – not as a complete, coherent, and united system as traditionally seen – but as an “argumentative practice” aiming at getting deference from others. Moreover, as argumentative anchors, it also asserts that icj precedents contribute to achieving a certain degree of stability and predictability to the field.
The United Nations Convention on the Law of the Sea (losc) introduced many important innovations, such as Part xii on the protection of the marine environment, Part xv on compulsory dispute settlement measures and also the establishment of the International Tribunal for the Law of the Sea. The Tribunal started to work 1 October 1996 and during this has decided 27 cases. The jurisprudence of the Tribunal in this aspect has been mostly a mixture requests for provisional measures, prompt release and advisory opinions. However, while limited in their scope, these have served to advance the interpretation of the Convention in relation to important obligations and principles such as, the duty to cooperate under international law in relation to the protection of the environment; the relationship between obligations to conserve natural resources and navigational rights; due diligence obligations of States in relation to private operators in the Area, as well as the obligation of flag States and coastal States in relation to the phenomena of illegal, unreported and unregulated fishing activities in the exclusive economic zone of another State. However, there has only been one case on the merits that has addressed protection of the marine environment. And yet, a specialized chamber for environmental disputes was established under Article 13(3) of its statute, which has never been used. Many important issues concerning protection of the marine environment and conservation of natural resources have emerged over the years, including new ones related to climate change and marine plastics. It is inevitable that more disputes will arise in these areas concerning the rights and responsibilities of States under the Convention and international law, and the Tribunal is poised to play an important role in advancing the conservation interests of the global community through its interpretive powers. This chapter will examine the past contribution of the Tribunal to the conservation and preservation of the marine environment and, in particular, in relation to implementing Part xii as well as its potential role.
By developing international law, international courts can also contribute to the protection and promotion of community interests. The icj, in particular, is capable of promoting community interests by adjudicating inter-State claims. However, one of the main obstacles faced by the World Court relates to the existing tension between the bilateral nature of its own proceedings and the multilateral nature of the conflicting substantive law. Whereas the rules of substantive law that protect community interests are considered as Global Public Goods (gpg), those guiding international adjudication are of a procedural nature. Considering that procedure may guide and shape the application of substantive law, it will be argued that it should itself be interpreted and developed in a manner to ensure community interests. This chapter argues that the Court should assume expanded procedural powers in order to ensure the effective application of substantive law whenever community interests are at issue. Most procedural rules can be adjusted and tailored for multiparty aspects with the aim of protecting community interests and enhancing the international court’s legitimacy. It is up to the Court to find the balance between States’ rights and commonly aspired goals, acknowledging the relation between the emergence of soft international law-making (procedure) and its role of addressing the provision of gpg (substance).
What does it take to imagine the future when one feels entirely and desperately deprived of divinatory skills or of a properly functioning crystal ball? Listening to experts in the field, accepting to confront your own assessments and convictions to their views, acknowledging that, while the future of international law – as the grammar of the international society – remains unpredictable by essence, venturing into new ideas is not prohibited. With their variety of topics and diversity of approaches, all the contributions to this volume will hopefully help in assessing the very significant impact which the rising of international justice has had on the development of international law in the last century. Rather than guessing what the “future of the contribution of international justice to the development of international law” will bring, this chapter formulates three wishes, with the hope that they may add a few stones along the path of our collective reflections. The chapter concludes that, if international law is truly to become our “common good”, international justice must itself develop as an essential instrument in its preservation and further development.
This chapter analysis the phenomenon of “inverted activism” of international courts in the interpretation of their competence norms and its consequences for the development of procedural norms regarding the formal assessment of court’s competence to resolve a given case. Under the principle of the “competence of competence” each international judicial authority is solely competent to resolve any dispute or doubt regarding the existence and scope of its competence in relation to a given case. As a consequence, in order to apply norms regulating their competences, courts must interpret them by using the same recognized methods and subject to the same rules of interpretation as in the case of adjudication of the merits. One can distinguish four types of interpretative attitudes which the courts may adopt in this regard: the attitude of concealing or ignoring competence issues, the attitude of interpretative restraint, the attitude of interpretive activism to justify own competence and the attitude of interpretive activism to justify lack of competence or its limitation – which we called “inverted judicial activism”. Adoption of a given approach by a given body in the interpretation of its competences may be of an incidental character, conditioned only by the circumstances of a given case, or systemic, when the court consistently adopts the same approach in every case in which similar elements appear. In this way, courts may shape certain concepts or even their own policy regarding issues related to the interpretation of competence norms. It might seem that the refusal or avoidance of the international court from taking a case is a manifestation of judicial restraint. However, the practice of international courts shows that they are equally creative in justifying their competence to deal with the case as well as lack thereof. This chapter refers to examples of such practices particularly significant for the shaping of procedural rules. On the one hand, they relate to the principles or standards of interpretation and application of competence norms (e.g. the International Court of Justice and the “Monetary Gold rule” in the East Timor case or “non-existence of the dispute” in the recent Marshall Islands case). On the other hand, they prove that international courts can – by means of solely an interpretation seeking to limit or exclude their own jurisdiction – create a completely new procedural systemic solution without a formal legal basis, as was the case with the “pilot judgment procedure” in the jurisprudence of the European Court of Human Rights.