Dispute Settlement Research Articles

The vocabulary and disputes of public international law: a reflection on tensions

The paper, based upon the keynote delivered at the 13th Annual Conference of the Cambridge International Law Journal, reflects upon the tensions in modern public international law, with a particular focus on the vocabulary of international law and settlement of international disputes. First, generalist vocabulary is shown to be both stable in many key respects regarding sources and actors, and, perhaps less obviously, subject to re-evaluation in others, illustrated by reference to the recent work of the International Law Commission. Second, although tension between generalist and specialist elements of international dispute settlement is not unusual, it is suggested that recent developments push simultaneously in both the generalist and specialist directions. It remains to be seen how well the international legal order can withstand such pressures. The paper overall calls for caution, mostly against understating the flexibility of international law in tackling unseen-before challenges but also against complacency that misses the strain that accumulation of commonplace institutions may place upon underlying systemic assumptions.

Analyzing WTO's Path to Balancing Developing and Developed Countries in Globalization: A Study Based on Cross-Domain Rule Interaction Theory

The World Trade Organization was established to support cooperation in trade policy to achieve common economic goals. In the area of cross-rule interaction, however, international competition has intensified, making it difficult for the WTO to balance the responsibilities and obligations, and the costs and benefits, of developed and developing countries. The governance of the international economic and trade system has fallen into a new dilemma, with the gradual rise of minorilateralism and bilateral trade conflicts causing cracks in globalization. Based on this, this paper will analyze the drivers of the current dilemma faced by the WTO and provide suggestions for a balanced approach. At present, the rules of global economic and trade governance are lagging behind the needs of the new international trade model, as the WTO has not clearly apportioned the responsibilities and obligations to be borne by the countries of the South and the North and is facing a crisis of legitimacy in its dispute settlement mechanism. Therefore, WTO needs to strengthen its internal mechanisms as well as its organizational functioning to assign obligations to States on a case-by-case basis. In addition, the WTO should clarify its economic and trade policies according to different areas and strive to make the multilateral trading system more equitable and fair.

La place du préteur pérégrin dans la procédure d’expulsion des étrangers à Rome IIe s. av. J.-C. – Ie s. ap. J.-C.

Abstract. The praetor peregrine is in Rome the magistrate who deals with the settlement of disputes between peregrines but also those between Roman citizens and peregrines. One could easily think that his role towards foreigners is limited to this but it is not. The present article therefore seeks to show that the prerogatives of the praetor peregrine in Roman society were not limited only to the settlement of conflicts, but could be extended to all that touched directly and by far the foreigners of the Urbs.

Transboundary Climate-Induced Migration: the Need for a Legally Binding International Framework and a Dispute Settlement Mechanism

Transboundary Climate Migration (‘TCM’) is projected to become an increasingly disconcerting consequence of climate change, with human settlements being displaced erratically. The absence of an international legal regime that systematizes such migratory patterns has the potential to worsen the impacts of climate change on marginalized climate migrants, especially those hailing from the Global South. While multiple suggestions have been made as to the nature of an instrument regulating TCM, these need to be comparatively analysed on the basis of feasibility, efficiency, and adherence to the imperative of ‘international cooperation’ to determine the most appropriate apparatus. Moreover, given that disputes involving nation-states and climate migrants are a foreseeable likelihood, the next important enquiry lies in the type of dispute resolution mechanism that the legal apparatus for regulating TCM should opt for. While the International Court of Justice (‘ICJ’) possesses broad powers in resolving international disputes, including certain landmark environmental disputes, does it have the capacity to delve into fact-intensive and time sensitive disputes emanating from TCM? If not, how suitable can arbitration be in resolving TCM disputes efficiently?

The Dejudicialization of International Dispute Settlement: A Paradigm Shift in International Economic Law?

The objective of this article is to reflect on the rise and decline of judicialization in international trade and investment regimes and explore the future of international economic dispute settlement. It makes three key arguments. First, the severe disjuncture between anticipated benefits of international dispute settlement and the actual costs imposed on states explains the emerging trend of dejudicialization in international economic law. Second, at least to some extent, dejudicialization is likely to be a staple feature of international economic law in the new era of deglobalization, climate crisis, and great power rivalry. Third, judicialization of international dispute settlement will not demise but substantial transformation is necessary to meet contemporary challenges.

Turkey: Certain Measures Concerning the Production, Importation and Marketing of Pharmaceutical Products: Critical Appraisal of the First WTO Article 25 Appeal Arbitration Award

The Article 25 appeal arbitral award in the WTO dispute DS583: Turkey – Certain Measures concerning the Production, Importation and Marketing of Pharmaceutical Products has several distinctions. It emerges in the backdrop of the Covid-19 pandemic and at a time when the WTO continues to look for a solution to the ongoing Appellate Body impasse. On the substantive side, the dispute examines whether procurement by private entities towards public healthcare mandate could fall within the ‘government procurement’ derogation of the GATT 1994. In addition, the excessive focus on the ‘design test’ at the provisional stage in the invocation of general exceptions under GATT Article XX has key implications for future disputes. The dispute is also historic as it is the first time that parties to a WTO dispute took recourse to Article 25 of the WTO DSU, considered as an alternative form of dispute settlement, apparently to mimic the appellate review process which the Appellate Body used to perform. The article focuses on the substantive and procedural issues discussed in the dispute, and how the WTO Panel, and subsequently, an Article 25 arbitration addressed a number of such novel issues. In this exercise, the article also comments on the unique modus operandi of the Article 25 ad hoc arbitration mechanism.

Settlement of Investment Disputes Based on the Bilateral Investment Treaty through Arbitration of the International Centre for Settlement of Investment Disputes (Case Study of Rafat Ali Rizvi vs. the Republic of Indonesia)

This study discusses foreign investment disputes involving Indonesia in international arbitration forums, particularly under the jurisdiction of ICSID (International Centre for Settlement of Investment Disputes). The main focus of this study is on the interpretation of the provisions of Article 2 paragraph (1) in the Indonesia-UK Bilateral Investment Treaty (BIT), which regulates the conditions for the entry of foreign investment in Indonesia. In the Rafat Ali Rizvi case, the arbitration panel decided that the process of entering investment that does not comply with the provisions of the Foreign Investment Law (UU PMA) cannot be included in the scope of the BIT. This study provides important recommendations for Indonesia in re-evaluating the provisions in each BIT involving Indonesia, as well as conducting further studies on ICSID arbitration decisions to understand the interpretation of BIT articles related to jurisdiction and the subject matter. Thus, this study aims to strengthen Indonesia's position in facing investment disputes at the international level

Jurisprudence Analysis Of Ma Verdict No 557/Pdt/2016/Pt.Dki On The Malaysian Ambassador's Land Title Dispute

This research analyzes Supreme Court Decision No. 557/PDT/2016/PT.DKI regarding a land title dispute involving the Government of Malaysia and a number of parties in Indonesia. The dispute stems from a claim over land used as the official residence of the Malaysian Ambassador, which had previously been purchased under a notarial deed in 1971. This study aims to understand the application of law in dispute resolution, as well as the legal implications of this decision for the development of jurisprudence and land law practice in Indonesia. The method used is jurisprudential analysis, focusing on the legal documents and arguments presented during the trial. The results of the analysis show that this decision affirms the importance of legal protection for foreign embassies in accordance with the 1961 Vienna Convention, as well as providing clear guidelines in the settlement of land disputes. The research also found that low public awareness regarding legal land ownership is a major factor in the emergence of disputes. In addition, this study suggests the need to improve the mediation mechanism at the BPN and socialization regarding legal land ownership to reduce future disputes. As such, this research is expected to contribute to a deeper understanding of land law and improve legal certainty in Indonesia, as well as provide practical recommendations for policymakers in managing land disputes.

Dispute Settlement and the Reform of International Investment Law: Legalization through Adjudication, written by Chen Yu

Dispute Settlement and the Reform of International Investment Law: Legalization through Adjudication, written by Chen Yu

The Scrutiny of States’ Climate Change Action under WTO Law and International Investment Agreements

Abstract The urgency of the fight against climate change is significantly shaping also international economic law. It is herein investigated how international climate change treaties, such as the United Nations Framework Convention on Climate Change (UNFCCC) of 9 May 1992 and the Paris Agreement of 12 December 2015 may be successfully integrated with the World Trade Organization (WTO) covered agreements and international investment agreements (IIAs). While the international trade and investment regimes were originally designed primarily for the vindication of economic concerns, they can already provide sufficient legal avenues for the affirmation of States’ climate commitments and efforts, such as the reliance on general exceptions applicable to environmental matters. In particular, trade and investment treaties must be interpreted pursuant to systemic integration as required by Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT). As a result, multilateral treaties addressing climate change do constitute a hermeneutic basis against which adjudicators may assess the respect or the breach of economic and commercial treaties under international law. Within this framework, unilateral climate change action by States (or by the European Union) that furthers the “ambition cycle” set forth by the Paris Agreement may withstand the scrutiny of the WTO Dispute Settlement System (DSS) and international investment tribunals but for a finding of discriminatory, arbitrary, unreasonable, selective or protectionist application.

Dispute Resolution in the AfCFTA Investment Protocol: a Preliminary Assessment and Proposal for Business and Human Rights Arbitration

Abstract This paper examines whether the Investment Protocol to the African Continental Free Trade Area (AfCFTA) Agreement aligns with international human rights law’s (IHRL) standards on the right to equality, non-discrimination, and access to an effective remedy. It argues that the Protocol’s dispute resolution model, which tilts towards ISDS, is incompatible with IHRL. This paper recommends incorporating the Hague Rules on Business and Human Rights Arbitration (Hague Rules) into the Protocol to create an IHRL-compatible dispute system, especially regarding enforcing human rights, environment, and climate obligations against investors and states. As African countries finalize the annex to the Protocol, they must replace ISDS with a BHR Arbitration framework as the dispute settlement regime within which investment players must enforce their rights.

Recourse to the financial commissioner as a condition for the exercise of the right to sue

The article analyses the legislative regulation of the mechanism of appeal to the Financial Commissioner before filing a complaint to the court, its procedural aspects and consequences of non-compliance with this preliminary procedure. Notwithstanding the general conclusion that this method of dispute settlement is useful, including, inter alia, a period for recourse to judicial bodies, shortcomings have been noted that would unnecessarily complicate the procedure and, in some cases, make it a meaningless exercise. Based on the case law, it has been proposed to simplify the procedure for recourse to the court in situations where a dispute is known to be impossible to resolve without the involvement of the court.

Exploring International Courts’ Exercise of Incidental Jurisdiction: Towards Coherent Approaches Through Res Judicata

This article is devoted to the study of the exercise of incidental jurisdiction by international courts and tribunals. It may be concluded from the existing case law where international courts and tribunals have exercised incidental jurisdiction that there are no consistent and coherent approaches to the exercise of incidental jurisdiction now. The article also analyses alternative techniques that may be used to avoid the necessity to exercise incidental jurisdiction. It is noted that international courts and tribunals may “escape” the exercise of incidental jurisdiction due to legitimacy concerns since making determinations on incidental issues may lead to the violation of the parties’ consent to the dispute settlement procedure. The article concludes that the existence of different approaches to the issue of the exercise of incidental jurisdiction could itself result in judicial fragmentation, which, in turn, reduces the legitimacy of international courts and tribunals. In this regard, it is concluded that it is necessary to develop a coherent approach to the exercise of incidental jurisdiction by international courts and tribunals. The author concludes that a consistent approach can be developed by applying the concept of res judicata, whereby the decision of an international court or tribunal is not binding except on the parties to a case within the framework of a particular dispute. It is also concluded that decisions on incidental issues lack the force of res judicata. Therefore, it is also resumed that international courts and tribunals can exercise incidental jurisdiction without overstepping states’ consent to dispute settlement. However, res judicata may not serve as a sufficient ground for the exercise of incidental jurisdiction on its own since the role of res judicata is limited in that regard.

Dispute Settlement in the Law of the Sea: Survey for 2023

Abstract This is the latest in a series of annual surveys in this Journal reviewing dispute settlement in the law of the sea, both under Part XV of the UN Convention on the Law of the Sea and outside the framework of the Convention. The most significant developments during 2023 were the judgments on the merits of a Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) in the Dispute concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives) case and of the International Court of Justice (ICJ) in the Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia) case; the commencement of two new cases before the ITLOS and the ICJ concerning the seizure and detention of vessels and climate change obligations, respectively; and the findings and recommendations of a panel established by the South Pacific Regional Fisheries Management Organisation to consider the validity of one of its fisheries conservation and management measures.

Penyelesain Sengketa Tindak Pidana Kekerasan dalam Rumah Tangga di Desa Taman Sampang

This study aims to analyze the settlement of domestic violence disputes (KDRT) in Taman Village with a non-litigation approach and the role of the village government in the process. The research method used is a qualitative method with a descriptive approach. Data collection was carried out through in-depth interviews, observations, and documentation studies related to the handling of domestic violence cases in the region. The main issues discussed are how the mechanism for resolving domestic violence through non-litigation channels and the active role of the village government in supporting victims and perpetrators to achieve conflict resolution without involving formal legal channels. The results show that non-litigation approaches, such as mediation and counseling, are an effective alternative in handling domestic violence cases at the village level. The Taman Village Government plays an important role in facilitating communication between the parties involved and providing psychological and social support for victims. In addition, the involvement of the village government in resolving domestic violence cases shows proactive efforts in creating a safer and more harmonious environment for the community. It is hoped that this approach can be a model for other regions in resolving domestic violence cases quickly and effectively without having to go through a court process that tends to take a long time.

The Role of Mediation in the Settlement of Family Disputes in Kazakhstan: A Sociological Study

The study aimed to examine the importance and necessity of using mediation in resolving family disputes in Kazakhstan. From February to August 2020, a sociological study was conducted in Kazakhstan to identify the main causes of modern family problems, the functions of mediation and mediators in dispute resolution. The study involved 1,200 respondents. Data collection methods included both quantitative and qualitative approaches. The study was based on a survey of respondents in major cities of Kazakhstan. The study showed that factors such as lack of love and understanding, financial difficulties, and interference from relatives contribute to the escalation of family disputes leading to breakups. It also confirmed the important role of mediators in reaching appropriate and effective solutions, emphasizing the need to strengthen mediator training, legislative support for free mediation services for vulnerable groups, guaranteed payment for mediation services, and promotion of mediation through local media and service centers.

Resolving Disputes in International investment through Arbitration

This paper brings forth an extensive analysis of the role of arbitration in resolving disputes in international investment, providing a comparative study of the existing frameworks and emerging alternatives. As cross-border investments continue to grow, disputes between foreign investors and host states have become increasingly common. International arbitration has emerged as the preferred method for resolving such conflicts due to its neutrality, enforceability, and flexibility. The paper explores the key legal instruments governing international investment arbitration, including Bilateral Investment Treaties (BITs), Free Trade Agreements (FTAs), and multilateral agreements like the Energy Charter Treaty. It also examines the two most widely used procedural frameworks: the International Centre for Settlement of Investment Disputes (ICSID) and the United Nations Commission on International Trade Law (UNCITRAL), comparing their distinct approaches to arbitration. While arbitration has proven effective, it faces growing criticisms, including high costs, lengthy proceedings, and concerns about transparency and arbitrator impartiality. The research also highlights regional initiatives, particularly in Latin America and China, which reflect diverse approaches to investment dispute resolution. By comparing these frameworks and emerging trends, the paper sheds light on the strengths, weaknesses, and future direction of international investment arbitration, emphasizing the need for a more transparent, equitable, and accessible system to balance the interests of investors and host states. The analysis concludes by assessing the potential impact of these reforms on the future of international investment law.

The afterlife of ISDS awards: post-award settlements and the limits of transparency reforms

Abstract Post-award settlements in investor–state dispute settlement (ISDS) remain largely unstudied. One of the reasons for this gap in knowledge is the lack of transparency in the post-award phase of the relationship between investors and host states. The primary objective of this article is to use novel empirical data to explore the transparency gaps and absences in the post-award phase of ISDS. We seek to challenge the prevailing notions of finality of ISDS awards and highlight the need to re-think the end goals of transparency considering the significant public policy implications post-award agreements may engender. The veil of secrecy that continues to shroud the world of post-award settlements raises a number of issues that go to the heart of the ongoing debate about the workings of ISDS, its legitimacy and the role of openness and accountability therein.

Bargaining in the Shadow of Awards

Abstract International investment disputes occupy a curious place in the research programme on compliance. On the one hand, there is a widespread presumption that respondent states generally pay the compensation that they are ordered to pay because not doing so risks more litigation or less investment. On the other hand, these disputes frequently continue long after awards are handed down, there are visible instances of non-payment and there is little evidence about if or how most disputes are actually resolved. Compliance with investor-state dispute settlement (ISDS) awards has also been difficult to study because much of what occurs after an arbitral decision falls outside traditional understandings of compliance processes. Therefore, in this article, we introduce a broader term – resolution – and look beyond payment at a wider landscape of post-award dynamics. We also introduce a framework to bring these dynamics into view. This framework places awards in the context of longer-term bargaining and articulates how bargaining is different when it occurs in the shadow of an award. We present three mechanisms through which awards can shape outcomes – as a legitimate outcome, as a coordinating focal point, or as a bargaining endowment – before arguing that the third mechanism is the most common in the context of ISDS.

Deficiencies and Improvement Proposals for Retaliation Mechanism in WTO Dispute Settlement Understanding

As the last-resort enforcement mechanism within the WTO framework, the effectiveness and regime of Retaliation have been subjects of ongoing concern and scrutiny. This paper presents an in-depth analysis of the Retaliation Mechanism in WTO Dispute Settlement Understanding (DSU), highlighting its notable deficiencies and the various proposals aimed at enhancing its function. The defects can be split into procedural problems and substantial problems, including the “sequencing problem” of DSU Article21.5 and Article 22, flaws in the arbitration process, and the mechanism’s overall limited effectiveness in ensuring compliance and rebalancing interests among member states. Through detailed analysis of relevant judicial cases and consideration of suggested reforms, this paper explores the potential future improvements to make the Retaliation Mechanism more robust and equitable. This review aims not only to assess the current challenges but also to suggest feasible enhancements that could significantly optimize the mechanism's efficacy in resolving international trade disputes.