International Dispute Settlement Research Articles

Is the WTO Appellate Body in Limbo? The Roots of the Crisis in the WTO Dispute Settlement Body and the Available Routes Navigating the Quagmire

In its over 25 years' history, the dispute settlement mechanism of the World Trade Organisation (WTO) has been touted as one of the most active and successful international adjudicatory systems in relation to other international dispute settlement fora. The process in the engagement of the system presents a tripartite structure consisting of consultation, panel and appellate stages, and the enforcement proceedings. The functions of these processes help to promote the trust and confidence of the member states in the WTO trade dispute settlement system. Now the Appellate Body (AB) is paralysed following the incapacitation and consequential suspension of the appellate function of the WTO Dispute Settlement Body (DSB), because of the insufficient membership caused by the United States blockade on the appointment process of AB members. The paper discusses the trajectory of the WTO dispute settlement reform from the GATT regime, the root cause of the suspension of the Appellate Body, and the options available for the disputants in and outside the WTO system. It concludes that the system possesses policy defects if the attitude of a single state can render the AB non-functional and should be transformed when the appellate system is resuscitated.

كلمة العدد (الإنجليزي)

The International Review of Law has always been a comprehensive scholarly platform for numerous legal studies, especially in terms of their visions and approaches, which reflect the cognitively disciplined and renewable legal thoughts. The International Review of Law reinforces the national law by being open to different legal systems regionally and internationally. The Review of Law serves as a stage for all readers with a passion for law. It has also updated its data on the DOAJ platform to reach the largest number of readers. The editorial board of the International Review of Law selected a number of research papers that respond to the standards of authentic and accurate scientific work in both Arabic and English. This issue contains nine high-quality scientific research, in addition to three book reviews. The first paper (Obeidat and Alfadel) evaluates “The Dominant Position and Its Impact on Competition within the Framework of Economic Concentration Processes – Analytical Study in the Jordanian and Qatari legislations.” While the second research paper (Al-Hababi) deals with the “Oppression versus Prosecution in Asylum Cases Under International Law & Municipal Laws.” The third research paper (Lamchichi) focuses on the topic of “Laws with Constitutional Provisions in the Qatari Legislation – An Attempt to Define the Concept.” As for the fourth research paper (Ali); It is concerned with “The Civil Liability of Judicial Experts - A Comparative Study in Qatari and French Laws.” While the fifth research paper (Noh and Sheha) addresses the topic of “Administrative Jurisdiction in Asylum Matters – A Comparative Study between French and Qatari Laws.” The sixth research paper (Reziq) is interested in “Claiming against the Guarantor; Its Time and Scope – Analytical study within Light of the United Arabian Emirates Civil Transactions Law.” The seventh research paper (Al-Khaldi) sheds light on “The Civil Liability of Companies Producing Vaccines and Medicines for Coronavirus (Covid-19).” While the eighth research paper (All-laymoon) focuses on “The Constitutional Status of the Crown Prince in the Jordanian Constitutional System- An Applied Comparative Study with the Qatari and Kuwaiti Constitutional System.” The last research paper (Abu-Sharida) is in English. It answers the following question: “Why Harmful Posts on Social Media should be Regulated.” This issue is concluded by reviews of three books, which have been recently published by Qatar University Press. The first review (Almuhtady bellah), of the book titled: “Peaceful Settlement of International Disputes” by Ibrahim Al-Anani. The second review (Benlahcene), of the book titled: “Qatar and the Gulf Crisis” by Kristian Ulrichsen. The third review (al-Masry), of the book titled: “A Practical Guide to Upstream Petroleum Granting Instruments” by Peter Roberts. The editorial board thanks the distinguished researchers and arbitrators who contributed to this issue’s quality and scientific value, who strive to make the International Review of Law a platform for scientific knowledge that benefits the readers and researchers in various fields.

Book Review: Peaceful Settlement of International Disputes

الأستاذ الدكتور إبراهيم العناني؛ أستاذ القانون الدولي العام في كلية القانون بجامعة قطر، وله مؤلفات عديدة ومتنوعة في مجال القانون الدولي العام. وقد اعتمدت كثيرًا على مؤلفاته؛ بما تحويه من معلومات وآراء قيّمة، عند قيامي بالبحوث القانونية المتخصصة، كذلك توليت التدريس على كتبه المقررة على طلاب البكالوريوس والدراسات العليا في جامعة قطر، وتحديدًا كتب مبادئ القانون الدولي العام، والقانون الدولي للبحار وقانون المسؤولية الدولية. ويتسم الأستاذ الدكتور إبراهيم العناني بمنهجيته المتعمّقة في دراسة الفكرة القانونية من خلال استخدام أسلوب سلس ومقنع، على نحو يسهل على أيّ قارئ استيعابه، سواءٌ أكان أكاديميًا، أم ممارسًا، أم طالبًا للقانون. والتسوية السلمية للنزاعات الدولية تعد بشكل عام من أساسيات القانون الدولي العام، لذلك توجد العديد من الكتابات المتعلقة بهذا الموضوع. ولكن ما يميز كتاب الأستاذ الدكتور إبراهيم العناني أنه قد تناول تحليلًا متعمّقًا وشاملًا لوسائل التسوية السليمة، فضلًا عن اهتمامه بشكل خاصّ بعرض وتحليل النزاعات المثارة في المنطقة العربية، ولا سيّما تلك التي تهتم بها دولة قطر.

Negotiation and mediation as a means of peaceful settlement of international economic disputes

Introduction. Interstate interaction and integration, on the one hand, are the key to the successful functioning of humanity, and on the other hand, they provoke the emergence of international differences and conflicts, including those of an economic nature. Successful settlement of economic differences in accordance with the principle of peaceful settlement of international disputes is a necessary condition for strengthening and developing international cooperation. The issue of peaceful settlement of economic disputes, including through the use of diplomatic means, has been studied by such authors as I.V. Grynchak, О.M. Malysheva, Z.V. Tropin, etc. The purpose of the paper is to determine the specifics of negotiation and mediation as political ways to resolve economic disputes peacefully. Results. In international legal doctrine, the most common is the division of peaceful means of resolving international disputes into diplomatic (political) and legal (judicial). The most common are negotiations, good services and mediation, international arbitration. International negotiations, as part of the system of international relations, on the one hand, feel their influence, acting as a tool in solving a range of foreign policy and, in some cases, domestic policy problems, on the other – themselves affect international relations, largely defining and shaping them. The difference between mediation and negotiation is that a third party intervenes in the dispute resolution process with the aim of reconciling the parties. At the same time, the role of the mediator is quite passive, the purpose of his activity is to establish a constructive dialogue between the conflicting states. Therefore, the result of applying this method in some cases can only be reduced to the resumption of negotiations. Conclusion. Negotiation and mediation are diplomatic (political) means of peaceful settlement of international economic disputes. Such means of resolving international economic disputes are used in the presence of a common will of the parties to resolve the conflict, and a common focus on finding a mutually beneficial and compromise solution to the dispute. A key difference between negotiation and mediation is the involvement of a third party in the mediation process, which helps the parties to reach an agreed and compromise solution.

Non-Settlement as Part of Efforts to Build a Community with a Shared Future for Mankind

Studying the scientific connotations of the concept of a community with a shared future for mankind and its guiding significance in international law is an important topic, and integrating the rich ideas contained in this concept into the theory of international dispute settlement is of great practical value. At present, the practice of international dispute settlement is encountering many difficulties, and there is a need to create new models and new ideas for international dispute settlement. Peaceful non-settlement is an important supplement to the existing methods of international dispute settlement. Generalizing and theorizing the practice of peaceful non-settlement from a legal perspective and making the concept of a community with a shared future for mankind a theoretical resource for supporting peaceful non-settlement can help enrich and guide the practice of peaceful non-settlement. In addition, peaceful non-settlement can help build a community with a shared future for mankind.

China and International Adjudication—Picking Up Steam?

Abstract This article examines the gradual shift from outright rejection of legal methods of international dispute settlement towards greater acceptance of it in certain contexts on the part of China in recent years using a tripartite typology. The first type includes analysis of a minor softening of its traditional strategic detachment from some international adjudicative systems in general public international law, international criminal law and international human rights law. The second type focuses on China’s deepening engagement with adjudicative systems in the areas of international trade law and international commercial and investment law. The third category analyses its exploratory accommodation to adjudicative settlement mechanisms in the law of the sea and in newer areas. The article fleshes out this classification by examining the roots of both historical and contemporary attitudes underlying China’s asymmetrical and regime-specific approach to international adjudication with reference to Chinese major policy initiatives including the Belt and Road Initiative.

Between the Law of the Sea and Sovereign Immunity: Reflections on the Jurisdiction of the Annex VII Arbitral Tribunal in the Enrica Lexie Incident Case

Abstract The jurisdiction ratione materiae of an international court or tribunal in a particular dispute settlement system relies on a sensitive balance between the safeguard of the consensual basis of jurisdiction and the need for the effective settlement of international disputes. Thus, the scope of the jurisdiction ratione materiae of an international court or tribunal constitutes a crucial issue in international adjudication. This issue was vividly raised in the 2020 Enrica Lexie Incident arbitration between Italy and India. In this case, the arbitral tribunal constituted in accordance with Annex VII to the UN Convention on the Law of the Sea held that it had jurisdiction to decide the issue of immunity that necessarily arose as an incidental question in the application of the Convention. However, the validity of the Tribunal’s approach needs careful consideration. Therefore, this article critically examines the Arbitral Tribunal’s approach in the Enrica Lexie Incident arbitral award.

Why de‐judicialize? Explaining state preferences on judicialization in World Trade Organization Dispute Settlement Body and Investor‐to‐State Dispute Settlement reforms

AbstractJudicialization scholarship suggests that states must seek the de‐judicialization of international dispute settlement mechanisms to regain regulatory space. Why then do some states seek a de‐judicialization yet others increased judicialization of dispute settlement mechanisms in their pursuit of regulatory space? This article advances a twofold argument. First, the concept of judicialization has been erroneously conflated with state perceptions of regulatory space under dispute settlement mechanisms. States aspiring to consolidate regulatory space may pursue de‐judicialization and increased judicialization alike. Second, states' preferences for de‐judicialization or increased judicialization to regain regulatory space should largely depend on conceptions of legitimate international law as either intergovernmental contracts or cosmopolitan quasi‐constitutional order. The article illustrates these arguments at the example of US and EU efforts to reform the Dispute Settlement Body of the World Trade Organization and investor‐to‐state dispute settlement. Both seek to increase regulatory space. Yet, the USA pursues de‐judicialization while the EU promotes judicialization.

INVESTMENT DISPUTE SETTLEMENT MECHANISM UNDER THE IMPLEMENTATION OF CHINESE FOREIGN INVESTMENT LAW

With the formal implementation of the Foreign Investment Law, a multi-level dispute settlement mechanism targeted at disputes has been formed. Under the background of the implementation of the foreign investment law, diversified investment dispute settlement is forming and will go through innovation, especially under the background of open-up investment dispute settlement mechanism. Multi-level investment disputes relate to both domestic and international level, “wall” function for international investment dispute settlement mechanism may realize through the principle of exhaustion of local remedies.

Adjudication at the Service of Diplomacy: The Enrica Lexie Case

Abstract The article addresses the Enrica Lexie case as an example of integration between adjudicative and diplomatic means of dispute settlement. It illustrates the case focusing on the Tribunal’s assessment of the scope of its jurisdiction and of the applicable law. The article is organised in four parts, next to the introduction. First, it places the case in the context of the relationship between adjudication and diplomacy in the settlement of international disputes. Second, it illustrates the case as a dispute over the interpretation and application of UNCLOS. Third, it addresses the relevance of the immunity of the marines for the purposes of the jurisdiction of the Tribunal and the applicable law. Finally, it concludes with few general policy remarks on the beneficial impact of the Award for the disputing and third Parties, as to the balancing of the interests of flag-States and costal-States in interpreting and applying freedom of navigation.

ICTs as the New Environmental Sentinels1

This article seeks to place under scanner the role of international courts and tribunals (ICTs) as important agents for the peaceful settlement of international disputes through the instrumentality of law. The rapid upswing in the number of specialized international courts and tribunals (in areas such as trade, human rights, law of the sea, criminal justice and environment) can be perceived as an attempt by the sovereign states to maintain viability of the ICTs in light of perplexity in international relations, growing recognition of peaceful co-existence, quest for institutionalized cooperation and emergence of some of the ‘Common Concerns of Humankind’ and the ‘Duty to Cooperate’. It has sought to make sense of emergence of ICTs as the ‘New Environmental Sentinels’. Do we need a specialized International Environmental Court (IEC) as an ‘ideal’? What does it portend for our common future?

REVIEW OF THE VOLUME ”SOLUȚIONAREA DIPLOMATICĂ A DIFERENDELOR ÎN DREPTUL INTERNAȚIONAL FLUVIAL” [DIPLOMATIC SETTLEMENT OF DISPUTES IN INTERNATIONAL RIVER LAW], AUTHOR: DAN ALEXANDRU GUNĂ, LUMEN PUBLISHING HOUSE, 2019

Browsing through the pages of Dan Alexandru Gună's book, " Soluționarea diplomatică a diferendelor în dreptul internațional fluvial" [Diplomatic Settlement of Disputes in International River Law], the words "beatus, qui prodest, quibus potest" came to my mind (”blessed is the one who becomes useful through the help given”). In these few simple words I could describe this paper, which turns out to be a thorough research of the fundamental principle of public international law, namely the peaceful settlement of international disputes.

Polar Dispute Settlement: Frameworks, Function and Future

Arctic and Antarctic law and governance is under the international spotlight with respect to the ability to respond to a range of issues including territorial tensions, maritime claims, environmental impact, and resource development. This raises for consideration contemporary international dispute settlement mechanisms. Whilst the Arctic and Antarctic have not been the scene of significant international discord there are examples of dispute settlement mechanisms having been utilised ranging from diplomatic initiatives to judicial settlement before the International Court of Justice. This paper assesses the practice associated with polar dispute settlement, considering overarching frameworks under the Charter of the United Nations and the law of the sea, before turning to review the function and future of the distinctive regional practices that have been adopted in the Arctic and Antarctica.

Loophole or Fire Alarm? The Consensus Requirement for the Appointment of Appellate Body Members and the Institutional Design of the WTO

The past four years have shown that, in contrast to previous assessments that saw the WTO dispute settlement organs as exercising irresistible authority over the WTO Agreements, a WTO Member can single-handedly derail the functioning of the WTO by obstructing appointments to the Appellate Body. This article investigates the origins and character of this feature of theWTO Agreements and examines possible means to overcome it, arguing that merely appointing seven new Appellate Body members will not be sufficient to the future operation of the dispute settlement system. If Members wish to avoid obstruction of appointments becoming a regularly employed negotiation tactic, they must explicitly establish that this possibility is not an integral feature of the institutional design of the WTO– a fire alarm thatMembers can resort to in case they are dissatisfied with developments within the organization – but an unwarranted loophole in the WTO institutional structure. Among the possible courses of action available to address it, one that is both politically feasible in the short term and unlikely to have its legal effects disputed is a decision, made by consensus by theMembership, to clarify the relationship between the decision-making authority of the Ministerial Conference and the provisions governing appointment of Appellate Body members. World Trade Organization, Appellate Body, International Dispute Settlement, Institutional Design, Dispute Settlement Body, International Courts

Living without the WTO Appellate Body – Procedural Developments in International Trade Dispute Settlement

Abstract The current column covers selected procedural and institutional developments in international trade dispute settlement in 2020. During the reporting period, World Trade Organization (WTO) dispute settlement has been facing unprecedented challenges due to the collapse of the Appellate Body. While this calls for a systemic reflection in the WTO forum regarding the future not only of appellate review but of the entire dispute settlement system, the current unavailability of the Appellate Body has triggered WTO Members into improvising temporary solutions. At the same time, some of them have equally seemed to turn to free trade agreements (FTAs) or otherwise to pursue solutions outside of the multilateral forum.

International investment disputes in the conditions of a pandemic

This article discusses theoretical and practical issues of investment disputes, as well as the role and role of arbitrators in dispute resolution. The legal significance of online arbitration in the context of a modern pandemic in resolving disputes, the scientific views of representatives of this field and some aspects of practice have been studied. Also, a scientific and practical analysis of the issue of enforcement by states and individuals of arbitration decisions on the settlement of international investment disputes, as well as international legal aspects was carried out.

‘Sharp Ears to Hear a Thunderclap’? The rise of mediation in the international dispute prevention and settlement system of the belt and road initiative

ABSTRACT The Convention on International Settlement Agreements Resulting from Mediation is one of the newest contributing factors to a virtuous circle upholding the foreseeable rise of mediation in cross-border business and investment disputes. This article analyses how the on-going institutionalization of the international dispute prevention and settlement system of the Belt and Road Initiative (BRI) is both being informed by, and is further contributing to, the global rise of mediation at a time when the international adjudicative system is in turmoil. The BRI is bound to generate a large number of complex international disputes ranging from international trade to investment and commercial disputes. This, in turn, has spurred two notable developments: 1) Chinese and regional arbitral institutions, legal regimes and investment treaty networks are currently adapting to better cater for the growing demand for commercial and investment arbitration in the context of the BRI. 2) The China International Commercial Court, which innovatively integrates ‘litigation, arbitration and mediation’ in its new ‘one-stop’ diversified settlement system, and a series of legal and institutional initiatives, namely the new International Commercial Dispute Prevention and Settlement Organization, are, in turn, paving the way for a greater use of mediation in cross-border business and investment disputes in the context of the BRI. This article examines these developments in the light of China’s broader relationship with international adjudication and elaborates on a number of arguments to help rationalising why mediation is gaining ground in the on-going institutionalization of the International Dispute Prevention and Settlement System of the BRI.

International Courts’ Shadow Effects and the Aims of Judicialized International Cooperation

In “Judicialization of the Sea: Bargaining in the Shadow of UNCLOS,” Sara Mitchell and Andrew Owsiak make a valuable contribution to an expanding body of scholarship that considers whether and how international courts have out-of-court “shadow effects.” The authors argue that, in the UN Convention on the Law of the Sea (UNCLOS) regime, the threat of binding international dispute settlement (IDS)—which entails high costs for states—encourages rational potential litigants to settle out of court through other peaceful and less costly IDS mechanisms. In this essay, I challenge the narrow focus of Mitchell and Owsiak's analysis, considering the diverse aims and processes of judicialized international cooperation in two key ways. First, the authors’ focus on peaceful IDS as the sole outcome of interest overlooks other important cooperation goals driving judicialization and delegation to international courts. An emphasis on out-of-court IDS, even when achieved peacefully, can actually undermine other objectives for judicialized international cooperation, including the development of international law and greater compliance with international law. Second, Mitchell and Oswiak's theoretical mechanism assumes that an international court contributes to its out-of-court influence through its case law, but this discounts how international courts can engage in a range of out-of-court, non-adjudicative activities that can affect potential litigants’ cost-benefit analyses regarding judicialized versus non-judicialized IDS. Indicating its preference for increasing its “direct effects” through adjudicating disputes, the International Tribunal for the Law of the Sea (ITLOS) has developed capacity-building and training programs to encourage judicialized IDS under UNCLOS and states’ litigation at the ITLOS. Overall, I highlight how there is a broad range of actors and processes underpinning international courts’ out-of-court effects, and how these actors and processes can work towards multiple, at times conflicting, aims for judicialized international cooperation.

The exhaustion of local judicial remedies in investor-state dispute settlement: a proposal for the African Continental Free Trade Agreement on Investment Protocol

ABSTRACT Over the past few years, the international Investor-State Dispute Settlement (ISDS) mechanisms have been confronted with an unprecedented level of scrutiny, and the system's legitimacy is being questioned by both developed and developing countries alike. This article presents a proposal for the adoption of the old customary international law rule of exhaustion of local remedies in the upcoming Investment Protocol of the African Contin en tal Free Trade Agreement (AfCFTA). It observes that the ISDS mechanism that will be developed under the AfCFTA framework is likely to be shaped by the legitimacy crisis in investment treaty arbitration and ongoing global debates about the reform of the ISDS mechanisms. In particular, the ISDS debate in the African region will continue to characterise and potentially derail the negotiations of the AfCFTA Protocol on Investment. The main contention is that adopting the exhaustion of local remedies under the AfCFTA Protocol on Investment before recourse is had to the ISDS is arguably the single reform with the greatest potential to foster a balanced investment dispute resolution mechanism and reduce political opposition to ISDS while still providing investors with access to ISDS when domestic remedies are inadequate. The article finally proposes a drafting suggestion for the adoption of the exhaustion of local remedies rule into the ISDS provision of the AfCFTA Protocol on Investment. Keywords: Exhaustion of local remedies; African Continental Free Trade Area; Investment Protocol; ISDS; African courts.

Compulsory jurisdiction under the law of the Sea Convention: its achievements and limits

Part XV of the United Nations Convention on the Law of the Sea (UNCLOS) establishes a special regime for the settlement of international disputes concerning its interpretation or application. Thanks to the mechanism of the enhanced compulsory jurisdiction provided by Section 2, various cases have been referred to the court or tribunals. Accumulation of the precedents has contributed to the clarification of the interpretation and application of the provisions relevant to the functions of the compulsory jurisdiction of international court and tribunals. This article examines the achievements and limits of the dispute settlement mechanism of Part XV. As far as the choice of the procedures in accordance with Article 287 is concerned, it is possible to say that the choice made by State Parties is respected as much as possible. Article 286 sets out the following requirements for a State Party to resort to the compulsory jurisdiction under Section 2: existence of a dispute concerning the interpretation or application of the UNCLOS; no settlement has been reached by recourse to Section 1; subject to the limitations and optional exceptions in accordance with Section 3. With regard to the first requirement, the ITLOS and arbitral tribunals have examined the subject-matter of the dispute before them and have tried to identify those concerning the interpretation or application of the UNCLOS. It is possible to say that examining the second requirement, the ITLOS and arbitral tribunals have emphasized the sound function of the compulsory dispute settlement mechanism under Section 2. As the third requirement relates to the scope of the compulsory jurisdiction of the court and tribunals, the ITLOS and arbitral tribunals have strictly interpreted the terms of Articles 297 and 298. Their Strict interpretation have allowed the Applicant to resort to the compulsory dispute settlement under Section 2. It is also necessary to note the strategic use of Article 300 in the arguments concerning the breach of the obligations under the UNCLOS in various precedents.