Judicial Settlement Of Disputes Research Articles

Justice of the Peace Courts in the Adjudication of Property Disputes in the Ottoman Countryside (1839–1914)

Abstract This article examines the institutionalization of justice of the peace courts in the 19th-century Ottoman Empire on the one hand, and on the other investigates the adjudication of property disputes in the lowest administrative units (villages and communes), within the context of establishing a regime of individual and exclusive property rights. Such an analysis historicizes the transformation that justice of the peace courts underwent in the 19th century. It therefore seeks to free these courts from being regarded as an ahistorical extrajudicial and/or judicial dispute settlement mechanism (sulh).

Judicialisation of the Sea: An Elaboration of Our Argument and Its Merits

Abstract In a previous article, we theorised that courts cast a shadow that changes the bargaining behaviour of potential litigant States. When two States prefer the same judicial forum under Article 287 of the United Nations Convention on the Law of the Sea (LOSC), they have fewer maritime disputes, more peaceful negotiations, and less need for judicial dispute settlement. This article elaborates on several aspects of our argument including (i) differences in legal and social science perspectives, (ii) generalizability to other courts and regions, (iii) the clarity of judicial decisions, (iv) whether accepting the same judicial forum through Article 287 declarations matters, (v) conflict management as a process, (vi) how domestic legal traditions influence Article 287 declarations, and (vii) the possibility of selection or heterogeneous effects. Our discussion helps to address some of the criticisms raised in the AJIL Unbound (2021) forum on our article and presents avenues for future analyses.

Left Out in The Cold?

International Law and the Cold War is an invitation to study some of the forgotten discourses related to this period, many times unfairly associated with the idea of decay. The historical experience is often summarized with the assertion that “the Cold War period saw a decline in the commitment to international adjudication”. An examination of the judicial practice in the period is carried out, namely arbitration and decisions of the International Court of Justice (ICJ). We shall also briefly scrutinize the appearance of jurisdictional clauses in international treaties signed between 1947 and 1990. The second part of the article presents a specific instance of judicial settlement of disputes, outlining the American Treaty for the Peaceful Settlement of Disputes and the fundamental choices of the “Pact of Bogota” in relation to judicial settlement. In the third part, we zoom in on some ideas regarding international adjudication in Latin America and on the writings of some Brazilian authors – such as Haroldo Valladão – to demonstrate their perception of the phenomenon. The present analysis proves that the judicial settlement of international disputes did not depend on the collapse of the Soviet Union for coming into operation. Interstate arbitrations were very much present during the Cold War years. Jurisdictional clauses remained in vogue, a great number of treaties still being adopted that referred their disputes to the International Court of Justice. The Pact of Bogota was a groundbreaking initiative to support the jurisdiction of an international court through collective recognition, consolidating regional practice on compulsory adjudication.
 KEYWORDS: Cold War; settlement of disputes; interstate arbitration; International Court of Justice; Pact of Bogota.

Separate issues of pre-court and judicial settlement of disputes regarding extraction or forced alienation of property for public needs or for public needs

Separate issues of pre-court and judicial settlement of disputes regarding extraction or forced alienation of property for public needs or for public needs

Institution of Conciliation Procedures in the Russian Federation: Problems of Doctrine and Law Enforcement

The judicial system is experiencing an increase in the workload in almost all countries due to the increase in the number of cases being considered, which certainly affects the quality of the administration of justice. In 2019, about 19 million cases in Russia were considered in the courts, with a population of about 140 million. In such circumstances, increasing the staff of the judicial staff is costly for the budget and senseless, which means that it is necessary to implement various conciliation procedures in the Russian legal system. Russia adopted a law in 2019 that establishes the institution of pre-trial and judicial reconciliation, but its effectiveness is almost zero. The authors analyze the epistemological essence of conciliation procedures and their applied significance at the doctrinal level in this article. Methods: the disclosure of the topic was carried out from the standpoint of general scientific methods (sociological, systemic, structural-functional, historical), the method of theoretical analysis, private scientific methods (comparative jurisprudence, technical and legal analysis, concretization, interpretation). The methodological basis of the study was the method of the theory of knowledge. The purpose of the study: To determine the essence of such categories as conciliation procedures; alternative dispute settlement procedures; pre-trial, out-of-court, and judicial dispute settlement procedures; to identify the relationship between conciliation procedures and civil proceedings; to determine the reasons for the low effectiveness of the use of conciliation procedures in Russia. Results: the gnoseological essence of conciliation procedures was revealed; their relationship with alternative dispute settlement procedures, the relationship between conciliation procedures and the civil procedure was shown, the reasons for the low efficiency of the application of conciliation procedures in Russia were revealed.

Judicialization of the Sea: Bargaining in the Shadow of UNCLOS

AbstractBased on a comprehensive empirical analysis of maritime disputes during the twentieth century, this Article argues that international courts cast a shadow that markedly changes bargaining by potential litigating states. In particular, the filing of optional declarations under Article 287 of UNCLOS increases states’ use of non-binding methods of dispute settlement, and the Article theorizes that this occurs because the declarations credibly threaten court involvement and provide more information about likely litigation outcomes. The Article's central finding is that states that file Article 287 declarations have fewer maritime claims, more peaceful negotiations, and less need for judicial dispute settlement.

Give a Court an Inch and It Will Take a Yard? The Exercise of Jurisdiction over Incidental Issues

This article seeks to clarify how international courts and tribunals should decide whether to exercise jurisdiction over incidental issues. It considers such issues incidental, which would fall outside the subject-matter jurisdiction of an international court or tribunal if submitted separately, but which courts rule upon to resolve disputes falling within their jurisdiction. International courts and tribunals have employed diverse approaches to decide whether to exercise jurisdiction over incidental issues. This contribution will assess their decisions to distil what criteria are best suited to ensure the effectiveness of the underlying treaty while taking into account the fundamental importance of state consent for judicial dispute settlement. It concludes that the necessity to exercise jurisdiction over the incidental issue and the nature of the issue should be the guiding criteria for international courts and tribunals, while the character of the jurisdictional basis may serve as supplementary criterion.

Let’s (Not) (Dis)Agree to Disagree!? Some Thoughts on the ‘Dispute’ Requirement in International Adjudication

Abstract International courts and tribunals only enjoy jurisdiction to settle a ‘dispute’. ‘Dispute’ requires disagreement. However, what if the parties disagree over whether there actually exists such disagreement? What if, before the International Court of Justice, the respondent argues that there is no ‘dispute’ because it declined to react to the applicant’s contentions? In other words, can a disputing party avoid a dispute by playing dead? On the other hand, where does one draw the line in order to prevent the applicant from seizing an international court or tribunal where there is in fact no real disagreement between the parties? This article critically assesses the Court’s case law on the ‘dispute’ requirement and argues for a fragmented approach to ‘dispute’ in international adjudication that carefully defines this jurisdictional requirement along the lines of the judicial function of the respective international judicial dispute settlement forum.

Beyond Credible Commitments: (Investment) Treaties as Focal Points

Abstract Why do states enter into treaties? In literature on the investment treaty regime, the dominant answer is that investment treaties provide credible commitments to foreign investors. This narrative provides valuable insights but cannot account for the historical origins of the treaties, where drafters explicitly decided to exclude “strong” dispute settlement provisions. Unlike modern-day investment treaties, the early investment treaty regime did not allow investors to file claims against host states through investor-state dispute settlement (ISDS). Using historical evidence from three major capital-exporting states—the United States, the United Kingdom, and Germany—the article shows that this was a conscious design choice. Rather than providing formal dispute settlement, sanctions, and penalties to make credible commitments, Western states intended investment treaties to serve as salient focal points for the informal resolution of investment disputes. The substantive obligations were expected to fulfil their coordinating role without the shadow of judicialized dispute settlement. The argument is not just of historical interest but has broader implications for literature on international economic law dominated by the credible commitment narrative, as well as the current political backlash against ISDS.

Beyond Credible Commitments: (Investment) Treaties as Focal Points

Why do states enter into treaties? In literature on the investment regime, the dominant answer is that investment treaties provide credible commitments to foreign investors. This narrative provides valuable insights but cannot account for the historical origins of the treaties, where drafters explicitly decided to exclude ‘strong’ dispute settlement provisions. Unlike modern- day investment treaties, the early investment treaty regime did not allow investors to file claims against host states through investor-state dispute settlement (ISDS). Using historical evidence from three major capital exporting states – the United States, the United Kingdom, and Germany – the article shows that this was a conscious design choice. Rather than providing formal dispute settlement, sanctions and penalties to make credible commitments, Western states intended investment treaties to serve as salient focal points for the informal resolution of investment disputes. The substantive obligations were expected to fulfil their coordinating role without the shadow of judicialized dispute settlement. The argument is not just of historical interest but has broader implications for literature on international economic law dominated by the credible commitment narrative, as well as the current political backlash against ISDS.

Some Benevolent Remarks Regarding the Theory of Historical Consolidation of Territorial Titles

Time plays an important role in territorial disputes, maritime and land alike, from three yet interrelated standpoints. First, critical date is a habitue of international adjudication so that it would be hardly impossible to conceive a judicial settlement of disputes without reference to it. Elsewhere, I noted that “[by] determining the date at which the dispute is definitively ‘crystallized’ – namely the main effect of critical date – a judicial organ will be able at the same time to set within the framework of inter-temporal law, the principles and rules applicable for the settlement of the dispute”.1 A the same time, the determination of the critical date allows the tribunal to distinguish between those facts that may be brought before it by the Parties to prove their claim and those that must be, in principle, be rejected for they are “carried with the sole purpose of establishing its sovereignty while the latter is precisely and overtly challenged by another state”.2 The second dimension is that of the evolution of applicable Law. Since public international law does evolve continuously, a legal fact which admittedly produces some legal effects at a given time (and thus at a corresponding phase of the evolution of the Law) must, in order for these effects to continue to exist, fulfill relevant conditions to this effect that the Law imposes. Hence, one ought to distinguish – with regard to territorial disputes in public international law – between the birth of the title (upon which stands territorial sovereignty)3 and its continued existence. In other words, the evolution of the law interacts with two different (temporal) stages in the life of a territorial title. Therefore, and as a general rule, it shall be noted that the need to uphold the title in conformity with the “legal systems prevailing at successive periods”4 of time flows from the composite structure of most (if not all) of the territorial titles. Law requires then that other “vesting facts” add up to the first “vesting fact”, having given birth to the original title, in order for the territorial title to strengthen and at the same time to be at consonance with the prevailing legal system, thence the close intertwining of the principle of inter-temporal law with the very notion of “better title”. The third dimension is that precisely of conflicting territorial titles over time and it will be the focus of this short study. It will be shown in the following pages that these three dimensions “Time” are intimately and ultimately intertwined.

Legally Binding of the World Trade Organization Dispute Settlemet Body’s Decision

Dispute settlement system of the WTO DSB can be categorized as a judicial dispute settlement system. Decision (rulings and recommendations) in a dispute settlement made by the WTO DSB is binding and should be performed. In some cases, decisions made by the WTO DSB were not performed, and there is no sanction against the non-compliance with the decisions. The objective of this study is to analyze the legally binding character of the WTO DSB’s decision as a decision of a judicial organ. From the data analysis, it can be concluded that the WTO does not provide adequate sanctions against the non-compliance with the DSB’s decision. It leads to the interpretation of the DSB’s decision is international soft law norm which is not legally binding. Moreover, it can hamper the enforcement of the WTO Agreement and the achievement of the WTO’s goals. The WTO judicial system should be strengthened and improved by creating WTO independent court or tribunal, which has authority to make legally binding decision as international hard law.

John H. Jackson WTO Institution Builder

John H. Jackson was a mentor, an advisor, a role model and a dear friend to me since I had the privilege of studying with him at the University of Michigan thirty five years ago. I strive to teach the way he taught me, to write the way that he wrote – never measuring up to his exacting standards, but always aiming for the clarity of thought, analytical precision and passionate vision for the future that he brought to his work. Most people think of academics as distant from policy making in the real world, but John was an exception. He was very influential with trade policy makers, in the USA and around the world, not only because of his prolific writings and speeches, but more importantly, because he actively engaged with them in Geneva and capitals. This is the story of perhaps his greatest contribution: to the establishment of the World Trade Organization (WTO). John’s goal ultimately was to create and maintain a strong multilateral trading system. He believed the best way to do that was through a vibrant, rules-based institution – an international organization and a judicialized dispute settlement system. He saw his dream come true.

Beyond the Love–Hate Approach?: International Law and International Institutions and the Rising China

There is a growing concern that China has become more assertive in its foreign policies. The fear is whether China’s economic growth may translate into modern and effective military advancement. This engenders the critical question of whether China feels comfortable in the current international order, which is defined by international law and institutions. This article argues that the Chinese approach to international law and institutions is tightly associated with its evolving perception of sovereignty, and national interests vis-à-vis international law and institutions, and is characterised by a love–hate attitude towards them. With its opening up, China now views multilateralism as a way for the international community to constrain the capriciousness of a superpower, and regards the international institutions simply as power-sharing development. However, China’s integration in international institutions represents its attempt to work within international norms to pursue its interests. China’s ambivalence towards international judicial settlement of disputes signals the historical legacy as well as China’s uneasiness with playing an active role in international institution-building and rule-making.

The Emergence of Hybrid International Commercial Courts and the Future of Cross Border Commercial Dispute Resolution in Asia

The bulk of international commercial disputes are resolved by national courts. In Asia, regional international arbitration centres in places such as Shanghai, Hong Kong, Singapore, and Tokyo have also been partaking in these exercises albeit at varying levels of popularity. While commercial arbitrations remain pop­ular, the influence of these bodies in driving convergence has been questioned. This has been in part due to the confidential nature of their awards and their ad hoc nature. The uptake of international commercial instruments in the region is growing, but the extent of harmonization of international commercial law remains weak. Even in countries such as Australia that have taken steps to adopt international commercial instruments, the efficacy of international law has been called into question. Application of these international rules have not been prom­ising. In this regard, the lacklustre performance of the Convention for the Interna­tional Sale of Goods (CISG) could be cited. There is no doubt that judicial institutions play a crucial role in achieving the lofty ideal of harmonisation. At the other end of the spectrum, the establishment of fully blown regional interna­tional courts for commercial disputes is further away. This has been hampered by the obvious sovereignty concerns and the relative success of international commercial arbitration. It has been a little over a year since Singapore, a country that is already one of the most preferred arbitration destinations in the world, moved to establish an International Commercial Court, a unique institution that pushed the frontiers of cross border commercial dispute resolution. The Court heard its first case in May 2015 on a referral from the High Court. This case involved a dispute between Indonesian and Australian mining companies. The court is unique in that it allows appointment of foreign judges and dispenses with the application of Sin­gapore's Rules of Evidence. Naturally all Singapore regular courts are expected to apply the Singapore Rules of Evidence in disputes before them. However, an exception is made in regards to matters coming before the Singapore International Commercial Court (SICC), where on application of the parties the Singa­pore Rules of Evidence may be disapplied pursuant to Order 110, Rule 23.2 as will be discussed later in this essay, this hybrid institution promises to combine the best of international commercial arbitration and that of judicial settlement of disputes. Elsewhere in Asia, we have had the Dubai International Financial Cen­tre Courts of First Instance and Appeal, the Qatar International Court and Dispute Resolution Centre and, most recently, the Abu Dhabi Global Market Courts. The need for specialised commercial division has long been recognised in places like London, Delaware North, and Victoria in Australia. It is one thing to have a commercial division and yet another to make these divisions have an interna­tional orientation. This paper seeks to put these developments in comparative perspectives and examine normative, procedural, institutional issues and practical challenges that such endeavours entail. It will also assess and critically examine the legal/legis­lative infrastructure required to accommodate the establishment of hybrid judicial organs for cross border commercial disputes.

El principio Nemo iudex in causa sua ante los tribunales internacionales. Un estado de la cuestión

All the judicial proceedings are based in some general principles of law. Those principles express the imperatives of security, justice and equity which have to guide the judicial settlement of disputes. Some of those general principles define an important part of the judicial function and guarantee the objective nature of a judicial process. The principle Nemo iudex in causa sua is a general principle of law, particularly important for the development of the judicial proceedings for the settlement of disputes. The independence and impartiality of a judge are inherent to the fulfillment of his judicial function as a guarantee to his quality of third party to the dispute. The observance of those two basic requirements is fundamental for the good function of all tribunals, internal and international. But the significance of the Nemo iudex in causa sua principle has a special meaning for the international judges, due to the specificity of the context in which they fulfill their judicial function. The crystallization of the Nemo iudex in causa sua principle in the Constitutive Statutes of the different international judicial bodies and its convergent application in the international case-law demonstrate the common nature of this principle for all the specialized fields of the international justice.

From Reluctance to Acquiescence: The Evolving Attitude of African States Towards Judicial and Arbitral Settlement of Disputes

AbstractThe attitude of African states towards judicial and arbitral settlement of disputes has substantially evolved since their accession to independence. The original reluctance to resort to the judicial settlement of disputes was due to a lack of trust in the system of ‘international law’ from which they were excluded prior to the UN Charter era and the rules of which were sometimes used to justify their colonization. There was also the issue of under-representation in international judicial or arbitral organs. That initial reluctance has more recently evolved into acquiescence at the universal level. Judicial institutions are also being established by the African states themselves.

La “judicialización”: una nueva característica del sistema jurídico internacional

The multiplication of the international tribunals is a recent phenomenon in the international level. During the major part of its history, the international legal system has been characterized by the insipience of the judicial settlement of disputes. As a consequence of some complex reasons, nowadays, this system is “judicialized”. The end of the Cold War, the globalization of the economy, the extension of the ratione materiae and ratione personae sphere of application of the international rules, the growing importance of the non-state actors in the international relations and the shift from the consensual character of the international justice has fostered the beginning and the development of the “judicialization” of the international legal system. This process has a lot of positive effects but it also creates some important challenges for the function of the international legal order. Those challenges rely, specially, on the lack of institutional links between the international tribunals and the growing specialization of their judicial function.

Recent Developments in Judicial Settlement of Disputes Involving Mass Shareholder Claims Towards Listed Companies: Global, European and Croatian Perspective

Croatian capital market is, from the beginning of the year 2009, governed by new Capital Market Act that introduces higher level of investor protection, by posing firmer rules on mandatory disclosure for listed companies. Based on the similar trends in comparative law it could be expected that disputes between investors and issuers are more likely to arise. Investors would more likely seek judicial protection, i.e. sue for damages, when issuers’ misstatements on the capital market such us false prospectuses, non-prompt disclosure of price sensitive information etc. occur. Because of dispersed corporate structure in listed companies, it is possible to have a large group of investors on the plaintiff’ s side, which opens various legal issues in handling such massive claims. National approaches to this problem are very different: from an American modeled class actions, to English group litigation, German model case procedure, etc. Aim of this paper is to analyze how mass shareholders’ / investors’ suits work out in regulatory environment of the US and some EU countries, as well as point out what procedural mechanisms are available in the Croatian law, and to suggest actions which should be taken in order to facilitate settlement of those disputes.

The League of Nations: a retreat from international law?

AbstractDuring the First World War, civil society groups across the North Atlantic put forward an array of plans for recasting international society. The most prominent ones sought to build on the Hague Conferences of 1899 and 1907 by developing international legal codes and, in a drastic innovation, obligating and militarily enforcing the judicial settlement of disputes. Their ideal was a world governed by law, which they opposed to politics. This idea was championed by the largest groups in the United States and France in favour of international organizations, and they had likeminded counterparts in Britain. The Anglo-American architects of the League of Nations, however, defined their vision against legalism. Their declaratory design sought to ensure that artificial machinery never stifled the growth of common consciousness. Paradoxically, the bold new experiment in international organization was forged from an anti-formalistic ethos – one that slowed the momentum of international law and portended the rise of global governance.