The Competing Jurisdictions of International Courts and Tribunals

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ISBN: 9780199274284 | 0199274282
Cover: Paperback
Copyright: 12/9/2004

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The proliferation of new international courts and tribunals in recent years has given rise to concerns of jurisdictional overlaps between the new and existing judicial bodies. The book examines what would happen when the same dispute falls under the jurisdiction of more than one forum. This raises both theoretical and practical issues of coordinating between the various jurisdictions and identifies rules of law which ought to apply in such circumstances.

Abbreviations

xvii

Table of Cases

xxv

Table of Treaties

xlix

Table of International Instruments

lxi

Tables of Domestic Laws

lxv

Introduction

(1)

International Law at a Time of Transformation: The Proliferation of International Courts and Tribunals

(10)

Methodology

(1)

Scope of Research

(5)

Focal Questions

(2)

Part I Overlaps between the Jurisdictions of International Courts and Tribunals

(56)

What Constitutes Competing Proceedings?

(8)

The Traditional Jurisdiction-Regulating Rules

(1)

The Conditions for Application of the Traditional Rules

(6)

Delineation of Jurisdictional Overlaps: Theory and Practice

(46)

Conflicts between Different Courts and Tribunals of General Personal and Subject-Matter Jurisdiction

(3)

Conflicts between Courts and Tribunals of General Personal and Subject-Matter Jurisdiction and Universal Courts and Tribunals of Specialized Competence

(10)

Differences in the scope of jurisdiction ratione personae over states

(1)

Differences in the legal standing of individuals

(3)

Differences in the legal standing of international organizations

(2)

Related proceedings

(1)

Competition involving arbitral tribunals

(2)

Conflicts between Courts and Tribunals of General Personal and Subject-Matter Jurisdiction and Regional Courts and Tribunals with Unlimited Jurisdiction Ratione Materiae

(2)

Conflicts between Courts and Tribunals of General Personal and Subject-Matter Jurisdiction and Regional Courts and Tribunals of Specialized Competence

(3)

Conflicts between Different Universal Courts and Tribunals of Specialized Competence

(5)

Conflicts between Regional Courts and Tribunals with Unlimited Jurisdiction Ratione Materiae and Courts and Tribunals of Specialized Competence

(1)

Conflicts between Universal and Regional Courts and Tribunals of Specialized Competence

(15)

Trade-related jurisdictional conflicts

(6)

Jurisdictional conflicts between human rights bodies

(7)

Other areas of overlapping jurisdiction

(2)

Conflicts between Different Regional Tribunals of Specialized Competence

(3)

Multi-Faceted Disputes

(2)

Interim Conclusions

(2)

Part II Legal and Policy Issues Concerning the Competition between the Jurisdictions of International Courts and Tribunals

(102)

Jurisdictional Competition in View of the Systematic Nature of International Courts and Tribunals

(51)

The Jurisdictional Implications of the Proliferitation of International Courts and Tribunals

(4)

Influence of the Structural Relations between Competing Fora on the Selection of a Jurisdiction-Regulating Regime

(3)

Is There a System of International Courts and Tribunals?

(33)

International law as a system of law

(1)

Definition of a `legal system'

(6)

Is international law a legal system?

(1)

Differences between the international legal system and domestic legal systems

(5)

The relations between the various branches of international law

(5)

Is there a system of international courts and tribunals?

104

(1)

The dichotomy between the normative and institutional components of a legal system

104

(2)

Do international courts and tribunals meet the definition of a system?

106

(4)

The practice of different international courts and tribunals as indicative of their level of systemization

110

(5)

Which jurisdiction-regulating regime should govern international courts and tribunals?

115

(2)

Should International Law Encourage the Regulation of Jurisdictional Competition?

117

(9)

The importance of systematic coherence

117

(3)

Jurisdiction-regulating rules as a method of increasing systematic coherence

120

(2)

An alternative approach: inconsistencies as a catalyst for legal development

122

(4)

Interim Conclusions

126

(2)

Jurisdiction-Regulating Norms Governing Competition Involving Domestic Courts: Should They be Introduced into International law?

128

(49)

Regulation of Jurisdictional Problems Associated with Forum Selection

129

(25)

Unilateral forum selection

129

(1)

Forum shopping in private law

130

(1)

Policy arguments for and against forum shopping

131

(3)

Cross-boundary forum shopping

134

(4)

A race to the courthouse

138

(1)

Forum selection involving international and national courts or tribunals

139

(4)

Observations on the introduction of international anti-forum shopping rules

143

(6)

Forum selection agreements

149

(4)

Observations on the effects to be given to forum selection agreements under international law

153

(1)

Regulation of Jurisdictional Problems Associated with Multiple Proceedings

154

(19)

Parallel proceedings

156

(1)

Parallel proceedings under domestic law

157

(4)

Observations on the introduction of international rules regulating parallel proceedings

161

(3)

Finality of proceedings

164

(1)

Finality under domestic law

165

(5)

Observations on finality in international law

170

(1)

The finality principle in human rights proceedings

171

(2)

Interim Conclusions

173

(4)

Part III The Law Governing Competition between the Jurisdictions of International Courts and Tribunals: lex lata and lex ferenda

177

(106)

Competition-Regulating Norms found in Instruments Governing the Jurisdiction of International Courts and Tribunals

179

(50)

Forum Selection Provisions

180

(32)

Exclusive jurisdiction provisions

180

(1)

Inflexible provisions

180

(1)

Regional economic integration regimes

180

(3)

The WTO

183

(3)

The European Social Charter

186

(2)

Flexible provisions

188

(1)

The European Convention on Human Rights

188

(4)

ICSID

192

(3)

Non-exclusive jurisdiction provisions

195

(1)

Parallel jurisdictions

195

(1)

The ICJ

195

(2)

UN human rights bodies

197

(2)

Non-compliance procedures

199

(1)

Other non-exclusive jurisdictions

200

(1)

Residual jurisdiction

201

(1)

Jurisdiction under UNCLOS

201

(6)

Other residual arrangements

207

(1)

Middle ground approaches: Limited choice of forum

208

(1)

NAFTA

208

(1)

Other limited choice arrangements

209

(2)

Implied division of jurisdictions

211

(1)

Multiple Proceedings

212

(14)

Electa una via

213

(1)

The European Convention on Human Rights and other human rights regimes

213

(2)

Electa una via clauses in areas of international law other than human rights

215

(1)

Electa una via reservations

215

(3)

Lis alibi pendens

218

(1)

The Optional Protocol to the ICCPR

218

(2)

Other lis alibi pendens provisions in human rights instruments

220

(1)

Lis alibi pendens clauses outside the human rights area

221

(2)

The principle of finality

223

(1)

Regional human rights arrangements

223

(2)

Other finality clauses

225

(1)

Interim Conclusions

226

(3)

Jurisdiction-Regulating Norms, Derived from Sources Other than Treaties, as Applied by International Courts and Tribunals

229

(43)

Application of traditional Jurisdiction-Regulating Rules

230

(25)

Forum selection principles

230

(1)

The PCIJ precedents

230

(4)

The Klockner case

234

(1)

The law of the sea cases

235

(4)

Parallel proceedings

239

(1)

The PCIJ cases

239

(2)

Jurisprudence of other international courts and tribunals

241

(2)

The Pyramids case

243

(2)

Res judicata

245

(1)

The legal status of the rule

245

(1)

Exceptions to the principle of finality

246

(1)

Case-law of the PCIJ and the ICJ

247

(4)

Case-law of other international courts and tribunals

251

(4)

Other Potential Rules and Principles Governing Jurisdictional Competition

255

(14)

The theory of abuse of rights

255

(3)

Application of the abuse of rights theory to forum selection and multiple proceedings

258

(2)

Comity

260

(1)

Application of comity to jurisdictional conflicts

261

(2)

The Pyramids case

263

(2)

Exercise of comity by other international courts and tribunals

265

(1)

Conflicting treaty obligations

266

(3)

Interim Conclusions

269

(3)

Possibilities for Future Improvement

272

(11)

Structural Reform

272

(6)

Jurisdictional reorganization

272

(3)

Expansion of the advisory jurisdiction of the ICJ

275

(2)

The desirability of creating new courts and tribunals

277

(1)

Increased Judicial Co-operation

278

(3)

Exercise of comity

278

(2)

Exchange of information

280

(1)

Better Strategic Planning on the Part of States

281

(1)

Interim Conclusions

281

(2)

Conclusions

283

(6)

Table of Authorities

289

(43)

Index

332

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The Competing Jurisdictions of International Courts and Tribunals

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