The Settlement of Disputes in International

This book surveys the range of procedures for the settlement of international disputes, whether the disputes arise between States or between States and corporations or individuals. It examines non-judicial procedures such as negotiation, mediation, fact-finding, as well as judicial procedures. The emerging principles of procedural law applied in these tribunals are also discussed.

John Collier is a Fellow of Trinity Hall, Cambridge and a practicing international lawyer
Vaughan Lowe is Reader in International Law, Fellow of Corpus Christi College, Cambridge, and a practicing international lawyer

Table of Abbreviations

xiii

Table of Cases

xvii

Introduction

1

(18)

Conflict, disputes and the Law

1

(4)

The range of dispute settlement procedures

5

(5)

Justiciability

10

(9)

PART ONE: INSTITUTIONS

Methods of Settlement of Disputes: The Basic Framework

19

(26)

Introduction

19

(1)

Negotiation

20

(4)

Inquiry and fact finding

24

(3)

Mediation and good offices

27

(2)

Conciliation

29

(2)

Arbitration

31

(8)

The Permanent Court Arbitration

35

(3)

The use of arbitration in recent times

38

(1)

Dispute Settlement Mechanisms and other developments

39

(2)

New directions? Iraq and the UN Compensation Commission

41

(4)

International Commercial Arbitration

45

(14)

Introduction

45

(1)

Arbitration rules

46

(5)

The ICC Rules

47

(3)

The UNCITRAL Rules

50

(1)

National arbitration laws

51

(3)

The UNCITRAL Model Law

53

(1)

International agreements on arbitration

54

(4)

Concluding remarks

58

(1)

Mixed Arbitrations

59

(25)

The International Centre for the Settlement of Investment Disputes (ICSID)

59

(14)

The ICSID framework

60

(1)

Organs

60

(1)

Jurisdiction

61

(1)

Submission to ICSID jurisdiction

62

(2)

Parties to disputes

64

(4)

ICSID procedure

68

(1)

Conciliation

68

(1)

Arbitration

69

(4)

Enforcement of ICSID awards

73

(1)

The Iran-US Claims Tribunal

73

(11)

The Hostages Crisis

74

(1)

The Algiers Accords

75

(1)

The Iran-US Claims Tribunal

76

(1)

Claims of nationals

77

(4)

Official claims

81

(1)

Interpretative cases

81

(1)

Applicable law

82

(1)

Enforcement of Iran-US Claims Tribunal Awards

82

(2)

Dispute Settlement in the Law of the Sea

84

(12)

Introduction

84

(3)

The International Tribunal for the Law of the Sea

87

(3)

The International Court of Justice

90

(1)

Annex VII arbitral tribunals

90

(1)

Annex VIII special arbitral tribunals

91

(1)

General provisions

92

(4)

The Settlement of International Economic Disputes

96

(28)

The GATT and WTO systems

96

(8)

The GATT system

96

(3)

The WTO system

99

(5)

Regional trade dispute settlement systems

104

(13)

The EU system

105

(2)

COMESA---the Common Market for Eastern and Southern Africa

107

(2)

ECOWAS---the Economic Community of West African States

109

(1)

Other African economic organisations

110

(1)

NAFTA---the North American Free Trade Agreement

111

(5)

Mercosur---Mercado Comun del Sur/the Southern Common Market

116

(1)

International financial disputes

117

(6)

The IMF

117

(2)

The World Bank

119

(2)

The Multilateral Investment Guarantee Agency (MIGA)

121

(2)

Concluding remarks

123

(1)

The International Court of Justice

124

(65)

Participation

125

(1)

Composition of the Court and election of judges: Dismissal

126

(1)

Sittings: Chambers

127

(2)

Disqualification of judges

129

(1)

Ad hoc judges

130

(1)

President; Vice-President; Registrar; Seat

131

(1)

Competence and jurisdiction in contentious cases

132

(23)

All cases which the parties refer to the Court

133

(2)

Matters specially provided for in the UN Charter

135

(1)

Forum prorogatum

136

(1)

Treaties or conventions in force

137

(2)

`Transferred' jurisdiction

139

(1)

The Optional Clause

140

(1)

The character of the relationships created by a declaration

140

(1)

Reservations

141

(2)

Domestic jurisdiction

143

(1)

`Automatic' reservations

143

(3)

Limitation of jurisdiction to certain categories of case

146

(1)

Time limitations

146

(2)

`Multilateral treaty' reservations

148

(1)

Resort to other means of peaceful settlement

149

(1)

Condition of reciprocity

150

(2)

Withdrawal or termination of declaration

152

(1)

Variation of the terms of a declaration

153

(1)

`Transferred declarations

153

(1)

The Optional Clause: Summary

154

(1)

Admissibility

155

(7)

Hypothetical nature of the case

156

(1)

The case has become `moot'

157

(1)

Lack of interest in the subject matter

157

(1)

Legal interest of a third State

158

(3)

Other examples

161

(1)

Intervention

162

(6)

Construction of a convention

163

(1)

An interest of a legal nature

164

(4)

Interim (provisional) measures of protection

168

(7)

Jurisdiction

169

(2)

The exercise of discretion

171

(2)

The scope of interim measures

173

(1)

Relationship to the claim on the merits

174

(1)

Enforcement of interim measures

174

(1)

Procedure of the Court

175

(2)

Effect of judgments

177

(1)

Enforcement of judgments

178

(1)

Interpretation and revision of judgments

179

(1)

Non-appearance

180

(2)

Advisory Opinions

182

(7)

PART TWO: PROCEDURE

The Arbitral Process

189

(202)

Introduction

190

(1)

Admissibility

191

(7)

Nationality of claims

191

(4)

Exhaustion of local remedies

195

(3)

Submission to jurisdiction

198

(9)

Written agreement

200

(1)

Existing or future differences

201

(1)

Defined legal relationship

202

(1)

Arbitrability

202

(2)

Capacity

204

(2)

Validity

206

(1)

Who is covered by the arbitration agreement?

207

(1)

Third parties: Intervention and joinder

208

(2)

Contents of the arbitration agreement

210

(2)

Arbitration clauses and submission agreements

212

(1)

The autonomy of the arbitration clause

212

(4)

Refusal to arbitrate and the denial of justice

216

(2)

Establishment and procedure of arbitral tribunals

218

(5)

Time limits

218

(1)

Appointment of arbitrators

219

(3)

Challenge to and disqualification of arbitrators

222

(1)

Powers and duties of arbitrators

223

(2)

The authority of truncated tribunals

225

(2)

Challenges to the tribunal's jurisdiction

227

(2)

Lex arbitri

229

(3)

Delocalisation

232

(3)

Procedure

235

(4)

Applicable law

239

(9)

Remedies

248

(5)

Interim measures

248

(2)

Final remedies

250

(3)

The award

253

(4)

Challenges to awards

257

(4)

Effects of the award

261

(2)

Enforcement of judgments and awards

263

(16)

The New York Convention

266

(4)

State immunity

270

(9)

APPENDICES

Appendix 1. Manila Declaration on the Peaceful Settlement of International Disputes

279

(6)

Appendix 2. Hague Convention on the Pacific Settlement of Disputes, 1907

285

(17)

Appendix 3. ICSID Convention

302

(17)

Appendix 4. UNCITRAL Arbitration Rules

319

(15)

Appendix 5. UNCITRAL Model Law

334

(12)

Appendix 6. Statute of the International Court of Justice

346

(13)

Appendix 7. Rules of the International Court of Justice

359

(32)

Index

391

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The Settlement of Disputes in International Law Institutions and Procedures

Summary

Author Biography

Table of Contents

Supplemental Materials