International Dispute Resolution Research Articles

CRITICAL EVALUATION OF JUDICIAL INDEPENDENCE QUESTION IN THE INTERNATIONAL COURT OF JUSTICE

In view of developments in world politics in recent years, such as an upsurge in nationalism, doubts about multilateralism, the Covid pandemic and the Russia-Ukraine war, an inquiry concerning the peaceful resolution of international disputes is in order. How capable are international dispute resolution mechanisms of satisfying demands and preserving their reputations at such a critical time? The fundamentally political entities involved are likely to remain very disparate, a fact that can only worsen their widely acknowledged poor image in this respect without instituting any remedial measures. As a judicial body, however, the ICJ would hardly be allowed such latitude. Concerns about the impartiality of ICJ judges have already been expressed on the grounds of their perceived allegiance to their home countries, an issue that the existing political zeitgeist only makes more controversial. No solutions are readily available to alleviate all concerns. The current article takes several normative assessments into consideration, arguing that these can devalue the authority of the ICJ’s judgments. It then provides insight into how to recognise and deal with the persistent problem of judicial independence within the ICJ.

CRITICAL EVALUATION OF JUDICIAL INDEPENDENCE QUESTION IN THE INTERNATIONAL COURT OF JUSTICE

In view of developments in world politics in recent years, such as an upsurge in nationalism, doubts about multilateralism, the Covid pandemic and the Russia-Ukraine war, an inquiry concerning the peaceful resolution of international disputes is in order. How capable are international dispute resolution mechanisms of satisfying demands and preserving their reputations at such a critical time? The fundamentally political entities involved are likely to remain very disparate, a fact that can only worsen their widely acknowledged poor image in this respect without instituting any remedial measures. As a judicial body, however, the ICJ would hardly be allowed such latitude. Concerns about the impartiality of ICJ judges have already been expressed on the grounds of their perceived allegiance to their home countries, an issue that the existing political zeitgeist only makes more controversial. No solutions are readily available to alleviate all concerns. The current article takes several normative assessments into consideration, arguing that these can devalue the authority of the ICJ’s judgments. It then provides insight into how to recognise and deal with the persistent problem of judicial independence within the ICJ.

Examining Article 36 of the United Nations Charter, the judicial responsibility of the International Court of Justice in settling disputes between countries in international lawsuits

Field and Aims: This article focuses on Article 36 of the UN Charter and examines the jurisdiction and responsibilities of the International Court of Justice (ICJ) in resolving disputes. The aim Is to strengthen the resolution of International disputes and enhance the role of the ICJ in the United Nations. Method: This research uses the normative legal research method to analyze the provisions and cases through qualitative analysis of documentary data and library materials. Finding and Conclusion: findings indicate that the International Court of Justice has jurisdiction over cases referred to it and matters specified in the UN Charter and relevant treaties. The jurisdiction of the ICJ includes treaty interpretation, dealing with issues of international law, determining breaches, and awarding reparations. The court's decisions are binding and require compliance by states. Article 36 leads to declaratory judgments, compensation, and restitution in integrum. However, the jurisdiction of the ICJ is limited and relies on the consent of states for effectiveness.

Book review: Multi-Tier Approaches to the Resolution of International Disputes: A Global and Comparative Study by A Reyes and W Gu

Book review: <i>Multi-Tier Approaches to the Resolution of International Disputes: A Global and Comparative Study</i> by A Reyes and W Gu

Criteria for Determining the Affiliation of a Foreign Investor to a Particular State in an Investment Arbitration Dispute

Implementing effective means of dispute resolution between a state and an investor represents significant achievement of the International Investment Law. Considering the abovementioned, In the Investment Law it is of crucial importance to determine which investor is eligible and has access to the international dispute resolution means. For the investor to gain access to the international dispute resolution means and to be the subject of the regulations of the ICSID convention or other bilateral or multilateral investment agreements, it is essential for the investor to meet the criteria of being foreign investor. Otherwise, in case of a dispute with a state, the investor will have to use internal dispute resolution means and national courts.&#x0D; &#x0D; In this article the following is discussed: International standards of determining nationality of physical person investors, international standards of determining nationality of legal persons by place of registration, location of headquarters, nationality of governing persons and location of real economic activities. In the article method of determining investors’ nationalities during partnerships is also discussed. Research of the aforementioned issues is significant both to ensure protection of investor’s rights and to introduce dispute prevention mechanisms.&#x0D;

INTERNATIONAL LEGAL ASSURANCE OF PEACE AND SECURITY: CONCEPT AND MEANS OF ACHIEVEMENT

The purpose of the article is to study the subject matter and sources of international legal peace and security, to analyze the means of international dispute resolution, and to investigate Ukraine’s security priorities in times of war. Research methods: the chosen topic of research requires the use of various scientific methods and approaches to obtain high-quality results. Therefore, to solve the tasks, we used the following research methods: analysis - study of modern scientific approaches to the study of "international security"; systematic method helped to carry out a comprehensive analysis of the features of international legal documents on international security issues; analytical method provided an opportunity to analyze the state of cooperation between Ukraine and European security structures. Results: in accordance with the principles of international law, the structure of the international system and, ultimately, international relations themselves, different concepts of international security have been formed. All of them are based on scientific considerations, explain international processes, and are capable of making certain predictions about the future. At the same time, as we have noted, these concepts contain specific methods and means of ensuring international security. Among the most popular concepts are balance/balance of power, global/common/comprehensive security, collective security, cooperative security, as well as hegemonic stability, balance of threats, and peaceful coexistence. They are based on different principles: balance of power, hegemony, balance of interests, etc. Discussion: defining the essence of modern threats and challenges helps to determine the methodology for substantiating the tasks of ensuring international security in general, as well as the security of the state of Ukraine in particular, and to develop a regulatory framework for ensuring peace and security in the world.

An Alternative Resolution of International Disputes: A Review of the Polish Approach

In the age of globalisation, alternative forms of dispute resolution (ADR) are gaining new importance. In Poland, an increasing number of mediations and arbitrations in international (cross-border) cases are being observed. However, the number and importance of international ADR in Poland is much lower than in other European countries. Polish advocates and legal advisers, experienced in conducting international arbitration and mediation, explain the Polish specificity, genesis, and perspectives of ADR in international disputes. The comparison of lawyers’ experiences with the collected data thoroughly describes the state of out-of-court forms of dispute resolution in these types of situations. The study, based on interviews with Polish jurists, statistical data analysis, and an analysis of nonreactive materials, demonstrates the far-reaching deficiencies and problems of the Polish system of alternative dispute resolution in transnational cases.

Legal consolidation and practice of law of the renvoi institute in the romano-germanic legal system

The article is devoted to the study of the renvoi doctrine on the example of the countries of the Romano- Germanic legal system: France, Germany and Italy. The author analyses in detail the decisions of the courts that have established precedents for the application of this doctrine. The author points out that France is considered to be one of the founding states of the renvoi doctrine and the term «renvoi» became world famous after the Forgo judgment. The author analyses the cases in which the French courts have applied the principle of deference to resolve conflicts of law. Examples of changes in French legislation that excluded the rules of deference for decisions in inheritance matters are given. The author analyses in detail the French statute on reference to the legislation of other states and the rules of interpretation of legislation in cases where it refers to France or other countries. The process of creation and implementation of the Code of Private International Law in France is considered.&#x0D; The author highlights the practical aspects of the use of deference in France and notes that, despite the existing doubts and problems, deference is becoming increasingly acceptable and widespread in the practice of private international law. The author analyses the peculiarities of German conflict of laws in the context of situations where a backward reference to the law of a third state which is not a member of the European Union (EU) is made.&#x0D; It is established that in the practice of German courts, the concept of implied deference is used to achieve justice and ensure predictability and stability in the resolution of international disputes. It makes it possible to preserve the principles of foreign law while using national law for this purpose.&#x0D; The author examines the issue of retroactive reference in Italian law, which requires that a court apply conflict of laws rules to a case on its own initiative. The article provides examples of a court decision in a case where the issue of application of the renvoi doctrine arises.

International Law: Existence in International Dispute Settlement Efforts as a Symbol of Peace in the International Community

The settlement of disputes has been a significant concern in the international community since the 20th century. In its early development, dispute resolution could be achieved either peacefully or through the use of force. However, with the growing awareness of the dangers of war and the advancement of weapon technology, the international community has increasingly recognized the importance of peaceful dispute resolution. In the dynamics of its development, international dispute resolution can be distinguished between legal and political disputes. The opinions of international law experts regarding this distinction vary. There is also a middle ground view that states every dispute has its own political and legal aspects. The development of peaceful dispute resolution has been taking place since the Hague Peace Conferences of 1899 and 1907. During these conferences, rules for peaceful dispute resolution between nations were established. International law also regulates the obligations of states to settle disputes peacefully, as stated in the UN Charter. Technological advancements and the existence of official rules from the UN have strengthened the presence of international law in maintaining international peace and security. The obligation of states to settle disputes peacefully and refrain from the use of force is a recognized principle in international law.

International Law: Existence in International Dispute Settlement Efforts as a Symbol of Peace in the International Community

The settlement of disputes has been a significant concern in the international community since the 20th century. In its early development, dispute resolution could be achieved either peacefully or through the use of force. However, with the growing awareness of the dangers of war and the advancement of weapon technology, the international community has increasingly recognized the importance of peaceful dispute resolution. In the dynamics of its development, international dispute resolution can be distinguished between legal and political disputes. The opinions of international law experts regarding this distinction vary. There is also a middle ground view that states every dispute has its own political and legal aspects. The development of peaceful dispute resolution has been taking place since the Hague Peace Conferences of 1899 and 1907. During these conferences, rules for peaceful dispute resolution between nations were established. International law also regulates the obligations of states to settle disputes peacefully, as stated in the UN Charter. Technological advancements and the existence of official rules from the UN have strengthened the presence of international law in maintaining international peace and security. The obligation of states to settle disputes peacefully and refrain from the use of force is a recognized principle in international law.

Effective efforts in resolving international disputes: A review of the principles of international law in the case of the Ligitan and Sipadan Island disputes

This article discusses effective efforts to resolve international disputes by focusing on reviewing the application of international law principles in the context of the Ligitan and Sipadan Island disputes. This research explores the role of international legal principles, such as the principles of peace, justice and sovereignty, in handling territorial disputes between Indonesia and Malaysia regarding these two strategic islands. Through in-depth analysis of the settlement process, this article identifies concrete efforts that can be considered effective in resolving international disputes, as well as considering the impact of applying international legal principles in achieving just and sustainable solutions. The implications of this research can provide additional insight for stakeholders, international law practitioners, and researchers interested in the context of international dispute resolution, especially in cases involving international legal principles at the regional level.

Harmonizing Dispute Resolution Mechanisms: Enhancing Efficiency and Synergy between WTO and ISDS System

This research article explores aligning and optimizing dispute resolution mechanisms in international law, particularly within the World Trade Organization (WTO) and Investor-State Dispute Settlement (ISDS) contexts. Addressing challenges arising from the "spaghetti bowl effect" of multiple treaty regimes, it examines the interplay between WTO and ISDS systems, aiming for harmonization and reduced jurisdictional inconsistencies. Traditional coordination methods are evaluated, revealing limitations in adapting to this evolving paradigm. Instead, an "articulation clause" and the "principle of comity" are proposed as innovative approaches for rationalizing dispute resolution. These strategies aim to transcend rivalry between WTO and ISDS mechanisms, expediting impasse resolution in the WTO Appellate Body. The study promotes a strategic shift, encouraging stakeholders to view dual mechanisms as mutually advantageous. This pragmatic outlook empowers informed decision-making, enhancing the global rule of law's predictability, efficiency, and integrity. The ultimate goal is strengthening the WTO's dispute resolution framework and ISDS mechanism, contributing to a more streamlined and cohesive international dispute resolution landscape. The qualitative research methodology has been applied to the following article.

Designing a Multilateral Investment Court for Procedural Justice

Abstract Working Group III of the United Nations Commission on International Trade Law has embarked on a mandate to reform investor-State dispute settlement (ISDS), through identifying a set of concerns that merit multilateral procedural reform. In response, the EU has proposed creating a standing multilateral investment court. Despite the importance of procedural justice theory in domestic legal systems, its value as a resource in international dispute resolution is under-recognized. This article focuses on procedural justice through the literature on the social psychology of justice, as offering an empirically-based theoretical foundation that helps identify key elements and options in designing investment adjudication. Within ISDS reform, the authors focus on necessary innovations in independence and impartiality, transparency, participation, and correction of error, the key pillars of procedural justice research. The EU proposal suggests substituting a more traditional judicial model of dispute resolution for the current and problematic arbitral model, which aligns to a greater degree with the principles of procedural justice.

Mediation - A Tool for Solving the Fundamental Problems of the Contemporary World

Abstract In an ever-changing international environment, where international conflicts are evolving at a rapid pace, the culture of mediation as an alternative method of peaceful resolution of international disputes is at the centre of the global agenda, and its role is growing in relation to the diversity of internal and external threats. Flexibility, adaptability, impartiality, economic and temporal components are the main attributes that contribute significantly in the fields of preventive diplomacy, justice, crisis management and conflict prevention, security and defence. Mediation is a priority both in the prevention of conflict escalation and in the reconstruction phase, out of a desire to restore peace while safeguarding freedom, the rule of law and the common heritage.

MANDATORY BINDING DISPUTE RESOLUTION IN THE BASE EROSION AND PROFIT SHIFTING (BEPS) TWO PILLAR SOLUTION

AbstractBinding taxpayer-initiated international dispute resolution has traditionally played a minor role in the international tax system. Despite being long pursued by corporate interests and increasingly accepted by developed countries, international tax arbitration has remained less developed and less respectful of private interests than investor–State arbitration. The binding multilateral dispute settlement endorsed by over 130 countries as part of the Organisation for Economic Co-operation and Development's Two Pillar Solution to issues raised under Action 1 of the Base Erosion and Profit Shifting (BEPS) project marks a change and is noteworthy at a time when some States are reconsidering their consent to the international adjudication of trade and investment disputes. The design of international dispute settlement in the Two Pillar Solution, and the focus on the protection of multinationals from juridical double taxation, displays little appreciation of the experience with dispute settlement in international trade and investment over the past two decades.

Multi-Tier Dispute Resolution (MDR) - Multi-Tier Approaches to the Resolution of International Disputes: A Global and Comparative Study. Edited by Anselmo Reyes and Weixia Gu. Cambridge, UK: Cambridge University Press, 2022. 400 pp. $191.00

Multi-Tier Dispute Resolution (MDR) - Multi-Tier Approaches to the Resolution of International Disputes: A Global and Comparative Study. Edited by Anselmo Reyes and Weixia Gu. Cambridge, UK: Cambridge University Press, 2022. 400 pp. $191.00

THE CHINA-AFRICA JOINT ARBITRATION CENTRE (CAJAC)

The People’s Republic of China (PRC) continues to consolidate itsposition as one of the most important trade players on the internationalmarket. The PRC has signed cooperation agreements with more than126 countries. It is also a substantial importer of raw materials,intermediate inputs, and other goods. The PRC has dealings with all 54countries on the African continent, and today the continent ranks asone of the PRC’s most important trading posts. The increasing numberof international trade and investment means naturally, that disputes ofan international nature will arise between the PRC and African parties.It is for this reason that the China-Africa Joint Arbitration Centre(CAJAC) was established. The formation of CAJAC at the instance of theForum on China – Africa Cooperation (FOCAC) is to encourage is toadminister the resolution of international disputes arising betweenChinese and African entities having their principal residence, place ofbusiness or nationality located in PRC or a country in Africa. The aim ofthis article is to examine the salient features of CAJAC which isadminister by accredited institutions which include CAJAC Beijing;CAJAC Johannesburg, CAJAC Nairobi, CAJAC OHADA, CAJAC Shanghaiand CAJAC Shenzhen.

Reforming World Bank Dispute Resolution: ICSID in Context

During a tumultuous moment in history with shifts in power and politics, international dispute settlement stands at a crossroads. In theory, international dispute settlement should not institutionalize abuses of power, rely upon a monolithic one-size-fits-all model, or be a waste of resources, which will inevitably generate stakeholder dissatisfaction. Rather, dispute resolution should reflect both a commitment to the rule of law and equal treatment that sustains nuanced, fair, and just procedures most likely to provide results of substantive quality. Against this backdrop and with the major reforms concluded in July 2022, this article explores the reality of dispute resolution at the World Bank’s International Centre for Settlement of Investment Disputes (“ICSID”) using an evidence-based, historical lens. Rather than distort ICSID’s past to offer cognitive ease, this article uses primary sources to understand dispute resolution at the World Bank and the broader implications for international dispute settlement and alternative dispute resolution. Using an evidence-based, historical lens to promote an accurate understanding of procedural and substantive distinctions, international investment law and international dispute resolution can facilitate accurate, useful, and responsive reform, rather than letting myopia, manipulation, and mismanaged expectations control the future of international dispute settlement.

국제법질서에서의 EU의 지위 – Kadi 사례에 반영된 국제법질서를 중심으로 -

What is the European Union(EU)? The question of the legal status of the EU is important for making legal judgments in EU cases invol ving international organization and international dispute resolution, s uch as when the EU seeks to play a more prominent role in the int ernational legal order or when EU member states withdraw from the EU legal order. The debate over the legal status of the EU is also ev ident in the academic response to the Court of Justice of the Europ ean Union(CJEU)'s Kadi decision. This Article examines the response of European courts--and in particular of the Court of Justice of the European Union(CJEU)--to the dramatic challenges to the UN Securit y Council’s anti-terrorist sanctions regime brought before the courts. The CJEU in Kadi case annulled the European Community’s impleme ntation of the Security Council’s asset-freezing resolutions on the gr ound that they violated EU norms of fair procedure and of property protection. This Article argues that the robustly pluralist approach o f the CJEU to the relationship between EU law and international law in Kadi case represents a sharp departure from the traditional embr ace of international law by the EU. Paralleling in certain striking wa ys the language of the US Supreme Court in Medellin v. Texas , the approach of the CJEU in Kadi case carries risks for the EU and for the international legal order in the message it sends to the courts of other states and organizations contemplating the enforcement of Sec urity Council resolutions. More importantly, the CJEU’s approach ris ks undermining the image the EU has sought to create for itself as a virtuous international actor maintaining a distinctive commitment t o international law and institutions. This Article is preceded by an i n-depth analysis of the theoretical and concrete practical shortcomi ngs stemming from the lack of institutional cooperation between the UN and the EU in the Kadi case. Enhanced institutional cooperation between the institutions of the two systems will work to their mutua l advantage as well as, most importantly, maintain the rights and lib erties of individuals like Kadi.

International legal status of the Free City of Danzig (1920-1939)

The article is devoted to a little-studied page of the history of international law and international legal personality - the status of the Free City of Danzig (now Gdańsk) in 1920-1939. The topic of such state entities with a special international regime of territory and subjectivity is a veryinteresting page of the international experience of settling territorial disputes between states. Unfortunately, their research in the Ukrainian international law (in particular, the international legal status of the Neutral Moresnet and the Free City of Krakow) began to appear only in recent years.&#x0D; The article examines the history of Danzig and the circumstances that actualized the issue of its statehood after the end of the First World War. It was emphasized that the decision to create the Free City was a compromise between the interests of Poland and the residents of Danzig on the one hand, and the interests of various victorious states on the other.&#x0D; The main sources of the international legal status of the Free City of Danzig are highlighted. The peculiarities of the international legal personality of Danzig in the context of relations between the Free City and Poland and the League of Nations are analyzed. Special attention is paid to various aspects of legal personality, in particular: external relations and membership in international organizations; economic issue; guarantees of the security of the Free City. It is substantiated that, despite the special regime of the territory and the limitation of sovereignty, Danzig was an independent state in the international context.&#x0D; The reasons that led to the end of the history of the Free City of Danzig are singled out, in particular: permanent conflicts with Poland; the ineffectiveness of the League of Nations as a key guarantor of the security of the Free City; the coming to power of the Nazis in Danzig and their policy of rapprochement with Nazi Germany. It is shown that in the future the use of such formats for the resolution of international disputes is impractical due to the impossibility of considering the entire set of circumstances.&#x0D;