International dispute resoulution

Author: Ayush Gaurav
Year & College: Ist year at Christ University, Bangalore


. .In both diplomatic and legal settlement methods, this article describes different responsibilities of collaboration. The cooperative responsibilities are discussed in the light of two opposing developments in conflict resolution. One is the emergence in adjudication, as shown by the establishment of new courts. Unique and diverse political means, on the other hand, are used and justified by novel claims, such as alternate conflict resolution (ADR) Where compulsory jurisdiction occurs, the international law of dispute resolution can be viewed as a network of commitments, with a hierarchical strand predominating, but horizontal Westphalian features persisting. The international law of arbitration is a body of law that governs the resolution of disputes. One is the emergence in adjudication, as shown by the establishment of new courts. Unique and diverse political means, on the other hand, are used and justified by novel claims, such as alternate conflict resolution (ADR). The international law of conflict resolution can be thought of as a web of responsibilities. Where (quasi-) obligatory jurisdiction occurs, the hierarchical strand of the network is dominant. However, horizontal Westphalian features continue to exist. Finally, as applicable to conflict resolution, the network picture represents the oscillation of international law between Westphalianism and Constitutionalism.

Keywords: ICSID , ADR, Constitutionalism, Westphalianism, Jurisdiction, Peaceful, Dispute Settlement. 

Introduction to the topic:

 .’Cooperation’ is the joint action of two or more subjects of international law or other international bodies, and means more than ‘coexistence’ or ‘coordination’ ‘Network’ is a structure situated on the scale between a horizontal/loose/ marketplace-like structure and a hierarchical/institutionalized/state-like one. The international law of dispute settlement is not only built on cooperation, but even constitutes a network, as political scientists understand the term ‘network’ ‘In a network[1], the particular feature of networks is the loose coupling of its components ‘A network is not just a horizontal or vertical structure, but a structure with a structure of loose, market-like components, such as a network of horizontal and vertical relationships’ ‘Cooperation in which states and dispute settlement institutions cooperate may be described as a Network’ ‘The law of international dispute settlement has rarely been analyzed in this perspective’ ‘International law of disputes settlement is displaying characteristics of a network’ ‘Law is built on a network’, ‘a structure with the structuring principle of hierarchy and of a market’.

The International Law Principle of Peaceful Settlement of Disputes:

. The principle of peaceful settlement of disputes is central to the UN system.[2] The criterion of ‘internationality’ of a dispute lies in the legal substance of the dispute. International disputes are those in which the rivaling claims are based on international law. This will normally go hand in hand with the parties being (at least so-called ‘limited’) subjects of international law. The international element lies neither in the trans-border dimension nor is the concept of international disputes restricted to disputes between states.

The Traditional Canon of Dispute Settlement Strategies:

. Diplomatic-political procedures seek to reconcile interests and their outcome is not in itself binding. An ultimately binding result is reached only in the ideal case that the parties to the dispute reach an agreement. Legal-adjudication procedures (arbitration and litigation) apply to international law. They culminate in a binding decision that cannot be unilaterally evaded by one party.

Pacific Settlement of International Disputes of 1907 remains valid. The main thrust of ADR literature is that ‘alternative’ means of dispute settlement are more flexible, more constructive, and avoid the typical adjudicatory winner-takes-all solution. The insights gained from these studies, together with growing dissatisfaction with domestic arbitration and litigation in particular sectors, have led to the new discipline of alternative dispute resolution. If we now fuse the arguments for mediation and conciliation by ADR theory with the traditional international law concern for sovereignty, international. dispute settlement appears as the ideal dispute settlement strategy[3]. It shares the advantages of. adjudication, namely the issuance of an informed, reasoned, neutral. decision. In the age of globalization, there are very few trans-na- perennial relationships within the global fabric that can be completely disrupted in the aftermath of a dispute. If this assumption is correct, we have quite a powerful argument for ADR on the international plane because in international law there is no such thing as a permanent solution to a global dispute.
Judgment, while at the same time imposing no commitment on the parties to accept the recommended award, so ‘the niceties of sovereignty are observed’, as Abram and Antonia Chayes put it.

The General Duty to Cooperate in Dispute Settlement:

 Arbitration is traditionally considered as more yielding to sovereignty than litigation before an international court. The most important state-state arbitration is practiced by WTO panels and the Appellate Body. The second type of international arbitration concerns disputes between states and private parties. Mixed arbitration is encouraged in the OECD Guidelines 2000, and in the Stability Pact for South-Eastern Europe. But this forum law has become increasingly complemented or even completely substituted by international procedural law, codified in multilateral conventions.[4] The financing of these new bodies, however, remains a serious problem. The ‘quiet revolution’ of international dispute settlement is a ‘quiet revolution of dispute settlement, as two eminent specialists, John Collier and Vaughan Lowe, write. It indicates that the attitude of so-called third-world countries towards binding adjudication is most likely diminishing and that the ideological, reserved attitude of third-world countries to binding adjudicated is likely to be diminishing. It is time for a new era of ‘international law in general to replace the ‘discriminatory’ approach of the Cold War era, writes McElroy. It’s time for an ‘arbitration revolution’ in international law.
The NAFTA Agreement provides for investor versus state arbitration under either ICSID rules or under UNCITRAL rules. This internationalization of procedures of course means an inter-nationalization of cooperation duties as well. We encounter various specific duties of cooperation not only in arbitration but also in the other types of international dispute settlement.[5]
A general, customary law-based duty of cooperation with a view to a settlement is inherent in the obligation to settle disputes peacefully. Without cooperation, no settlement. Such action involves action that is not only a matter of conventional law but shares, by force of necessity, the customary law quality of customary law. But it seems more helpful in practice to identify specific and concrete duties of cooperation whose fulfillment can be readily ascertained and whose non-fulfillment constitutes clearly identifiable unlawful acts. The less institutionalized and more flexible a dispute settlement procedure is, the more flexible the more its functioning depends on the general obligation to cooperate. It is submitted here that a contextualized, but still unspecified, duty to cooperate in a given dispute is not just an obligation in conventional law.

Exhaustion of Negotiations as a Pre-condition for Resort to Adjudication:

. . International legal texts which emphasize the principle of free choice are plentiful. They were mostly adopted during the period of the Cold War when the preference for political means or for legal dispute settlement procedures corresponded to the ideological split of the world. But even in the ostensibly New World Order, the idea of ‘free choice of means persists. [6]The principle creates the danger of an impasse in dispute settlement, even if both parties act in good faith, writes Peter Bergen. Bergen: If a principle of peaceful settlement of disputes is to mean anything, it must at least mean that the mechanism resorted to is that which is the least intrusive on sovereignty. If we allow for an impasse, then the principle would be disabled, undermined, empty, he writes. This cannot be the intention of the international community which has adopted this principle, he argues, and it cannot be in the interest of states to allow for it to happen. The author was responding to an article in the European Court of Human Rights, published by the Human Rights Watch.
Negotiation is an intrinsic element of the principle of dispute settlement. No state may refuse to negotiate in the absence of special contractual obligations.
‘A duty to negotiate is inherent in the principle of dispute settlement’ ‘Exhaustion of negotiations is a pre-requisite for adjudication’ ‘No general and absolute rule can be laid’ ‘Negotiations are a mandatory first step’ ‘The importance and chances of success of diplomatic negotiations is essentially a relative one’ ‘A duty to negotiate’ is a question of principle, not of law, but of practice. ‘Negotiation Clauses and the Problem of Exhaustion’ is published by the International Court of Justice,

Cooperation in Adjudication:

. .We have no compulsory jurisdiction in international law. We only have moderations of the consensus requirement. Only some 60 states have recognized as compulsory the jurisdiction of the ICJ. Only five of them have declared that they recognize it as compulsory. The highest barrier to adjudication is raised when no adjudication has been provided for prior to the outbreak of a specific dispute. The alternative means of establishing a ‘compulsory’ jurisdiction is to establish a court or arbitration. The possibility of such specific ex-post agreements is, for example, mentioned in the 1993 C-Weapons Treaty. Only two states such as the United States and France have withdrawn their declarations after defeating in defeat in litigation in the 1992 Convention on Trade and Conciliation and Arbitration within the OSCE Regime. The U.S. has withdrawn its declarations in the case of defeat in the defeat of France in the war on terrorism. The United States has withdrawn its declaration in the battle against al Qaeda in Iraq and has withdrawn the declaration in support of al Qaeda’s fight against the Taliban in the Gaza Strip.
Compulsory arbitration has been chosen in important recent conventions. The World Trade Organization system reclaims primacy and exclusiveness for all WTO-related disputes. The ICJ has compulsory jurisdiction under Article 14 of the Montreal Convention. The 1994 Energy Charter Treaty,80, and the Danube River Convention of the same year are examples of other conventions with compulsory arbitration.[7] The 1982 Convention on the Law of the Sea is the last resort to compulsory adjudication. The provisions of Article 281 of the UNCLOS are conditioned on the absence of an agreement to the contrary. The provision was interpreted in the recent Bluefinounty Tuna Arbitral Award as requiring only an implicit agreement to ec paraphrase the terms of the treaty. But there are no provisions in Article 281 for compulsory arbitration in the case of Tuna, which was awarded to the United States under Article 281.84 of the Convention.

[1] 2 A general principle which is incorporated in mandatory terms in the U.N. Charter – Article 2(3) – and restated in resolution 2625 (XXV) of 1970 of the U.N. General Assembly on Principles of International Law Governing Friendly Relations and Cooperation among State; cf. David Davies Memorial Institute of International Studies, International Disputes: the Legal Aspects (Report of a Study Group), London, Europa Publs., 1972, pp. 8-14

[2] (UN SG Report on Enhancing Mediation and its Support Activities, S/2009/189, p. 3)

[3] D.W. Bowett, “The United Nations and Peaceful Settlement”, International Disputes: the Legal Aspects, London, Europa Publs, 1972, pp. 179-180

[4] ICJ Reports (1984) pp. 440-441, pars. 106 and 108

[5] V. Pechota, Complementary Structures of Third-Party Settlement of International Disputes, N.Y., UNITAR, 1971, p. 10.

[6] f. J.G. Merrills, International Dispute Settlement, 3rd. ed., Cambridge, University Press, 1998, pp. 22-23.

[7] A method based in Article 33 of the U.N. Charter; N. Bar-Yaacov, The Handling of International Disputes by Means of Inquiry, London, RIIA/O.U.P., 1974, pp. 296-311 and 344-347.

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