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Christian J. Tams

Customary international law is one of the two main sources of international law. Yet there remains considerable uncertainty about the process through which rules of custom emerge or subsist – the ‘meta-law of custom’, which is now under consideration within the un International Law Commission (ilc). This article does not rehearse arguments about these uncertainties nor indeed engage with the current work of the ilc. Instead, it focuses on areas of certainty, viz. aspects of the law of meta-custom that are generally agreed and on which the ilc can draw. It argues that this certainty is the product of decades of jurisprudence, first of the Permanent Court and then of the International Court of Justice. In highlighting four crucial contributions and situating them in the debate about judicial law-making, this article seeks to raise awareness for the World Court’s (often unacknowledged) role in shaping the meta-law of custom.

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Christian J. Tams

Chapters on investor-State dispute settlement (isds) are among the controversial sections of international investment agreements. The chapter situates the evolving approach of the European Union (eu) to isds, and it does so in two steps: (i) It assesses the impact of the main eu actors on the formation of the eu’s investment policy and comments on the current backlash against investment arbitration, which has led the European Commission to engage in a public consultation. (ii) Against that background, the article provides a roadmap through the details of isds draft provisions put forward by eu actors. Its focus is on procedural aspects of dispute resolution (notafbly attempts to curtail options for parallel proceedings and certain types of claims) and on the question of consistency (which continues to prompt debate among treaty-makers).

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Christian J. Tams and Malgosia Fitzmaurice

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Malgosia Fitzmaurice and Christian J. Tams

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James Sloan and Christian J. Tams

Abstract

The role played by the International Court of Justice (and, formerly, its predecessor, the Permanent Court of International Justice) in the development of international law has been debated by scholars almost since the establishment of the World Court in 1922. While most agree that the ICJ has an influence in this regard, there is little agreement beyond that. This article, which draws upon a 2013 edited collection of the same name involving studies by leading experts in over a dozen areas of international law, posits some parameters appertaining to the influence of the Court. In short, it is suggested that the answer to the question whether the Court contributes to the development of international law in a meaningful way depends, in large measure, on the particular area of international law. This is so because important factors – including how frequently the ICJ is called upon to consider the area, what other law-determining agents exist in the area and the nature of the applicable international law – vary depending on the subject area. The article tests the proposed parameters through a brief consideration of the ICJ’s influence on the international law regarding the functioning of the United Nations.