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Power of International Courts to Interpret and Revise Judgments and Awards

Chester Brown

in A Common Law of International Adjudication

This chapter examines in detail two post-adjudication powers of international courts and tribunals: the power of interpretation and the power of revision. It first explains the post-adjudication role ... More

This chapter examines in detail two post-adjudication powers of international courts and tribunals: the power of interpretation and the power of revision. It first explains the post-adjudication role of international courts, which is limited due to the principle of the finality of adjudication. A variety of procedures have been developed, but this chapter focuses on the powers of interpretation and revision. The chapter then analyses the source of these powers, and it is argued that even if these powers are not expressly conferred in an international court's constitutive instruments, they can be exercised as inherent powers. It then turns to a number of issues which are considered by international courts in exercising the powers of interpretation and revision: the jurisdiction of the international court hearing the request; the composition of the international court; the scope of the powers of interpretation and revision; and other conditions. The chapter concludes that these powers are generally exercised in a consistent manner by different international courts.Less

Application of Jurisdictional-regulating Norms

Yuval Shany

in Regulating Jurisdictional Relations Between National and International Courts

This chapter discusses the application of forum-selection and multiple proceeding regulating norms to interactions between national and international courts. It begins with a review of forum ... More

This chapter discusses the application of forum-selection and multiple proceeding regulating norms to interactions between national and international courts. It begins with a review of forum selection agreements and other treaty clauses governing choice of forum (such as exclusive jurisdiction provisions). It concludes that in the absence of such specific norms forum shopping is generally permissible. The next part of the Chapter examines the application of the electa una via (fork in the road), lis alibi pendens, and res judicata rules to the parallel or consecutive invocation of multiple proceedings as reflected in the practice of NAFTA, ICSID, ITLOS, and other national and international courts. The chapter concludes that the conceptual difficulties identified in earlier chapters complicate any attempt to identify clear and consistent practice on the matter.Less

The Relationship between International Courts

Tobias Lock

in The European Court of Justice and International Courts

This chapter provides an overview of the jurisdictional relationship between international courts under general public international law. It is based on a distinction between conflicts of ... More

This chapter provides an overview of the jurisdictional relationship between international courts under general public international law. It is based on a distinction between conflicts of jurisdiction in the narrow sense and parallel proceedings and explores them in turn. Conflicts of jurisdiction are classified as conflicts between treaty norms, which necessitates a definition of treaty conflicts and a discussion of ways to resolve them (lex posterior, lex specialis, conflict clauses, abuse of rights, etc.) with the specificities of jurisdictional conflicts in mind. Concluding that not all conflicts of jurisdiction can be resolved on the basis of positive international law, the remainder of the chapter is dedicated to parallel proceedings, in particular res judicata and lis alibi pendens.Less

Fundamental Principles and General Bars

Graham Virgo

in The Principles of the Law of Restitution

This chapter examines general defences and bars, which are of general application to all, or almost all, restitutionary claims. Whereas a bar relates to the establishment of the cause of action, a ... More

This chapter examines general defences and bars, which are of general application to all, or almost all, restitutionary claims. Whereas a bar relates to the establishment of the cause of action, a defence only arises once the claimant has established the cause of action. Thus, the claimant bears the burden of proving that one of the bars to restitutionary claims is not applicable and, if the claimant is unable to show this, his or her claim will fail. If, however, the claimant can establish the claim, the burden then shifts to the defendant to plead and prove that one of the general defences is applicable. The chapter discusses the function and ambit of general defences and bars, principles underlying the general defences and bars, and general bars to restitutionary claims (exclusion of the right to restitution by contract, voluntary transfers, res judicata or issue estoppel, counter-restitution, and natural obligations).Less

The International Court of Justice and Private International Law Thoughts The Lalive Lecture Series 9 July 2007

Rosalyn Higgins Dbe Qc

in Themes and Theories

What is the essence of private international law? Typically referred to as constituting ‘the essence’ are topics related to: jurisdiction to hear and determine a case; the applicable law; the ... More

What is the essence of private international law? Typically referred to as constituting ‘the essence’ are topics related to: jurisdiction to hear and determine a case; the applicable law; the recognition and enforcement of foreign judgments or awards. These topics have their own life, too, at the International Court of Justice, but they arise somewhat differently from the way they present themselves in private international law. The combination of the need for consent to jurisdiction in a world of sovereign states, and the potential for controversy as to the meaning and scope of any consent given in advance, leads to the regrettable reality that a sizeable part of the Court’s case law is directed to the determination of its own jurisdiction. The various international courts and tribunals follow each other’s jurisprudence with interest. Two specific concepts of interest to both public and private international lawyers are res judicata and forum non conveniens.Less

Evidence

Kevin Jon Heller

in The Nuremberg Military Tribunals and the Origins of International Criminal Law

The Nuremberg Military Tribunals derived their rules of evidence from three sources: Article VII of Ordinance No. 7; the evidentiary provisions of the Uniform Rules of Procedure, which Tribunal I ... More

The Nuremberg Military Tribunals derived their rules of evidence from three sources: Article VII of Ordinance No. 7; the evidentiary provisions of the Uniform Rules of Procedure, which Tribunal I drafted and adopted in the Medical case; and the ‘fundamental principles of justice which have been accepted and adopted by civilized nations generally’. This chapter discusses the evidentiary issues that the tribunals addressed. Section 1 discusses two threshold issues, admissibility and the standard of proof. Section 2 deals with testimonial evidence, including the tribunals' controversial practice of taking evidence via commissioners. Section 3 focuses on documentary evidence, particularly the widespread use of affidavits in lieu of live testimony. Section 4 examines how the tribunals applied the doctrines of res judicata and judicial notice and dealt with the decisions of their predecessors.Less

The Rights of the Accused to Appeal and Revision

Salvatore Zappalà

in Human Rights in International Criminal Proceedings

This chapter discusses the rights of the accused to appeal and revision as a means for obtaining redress — judicial and non-judicial remedies. It then talks about the right of the accused to appeal: ... More

This chapter discusses the rights of the accused to appeal and revision as a means for obtaining redress — judicial and non-judicial remedies. It then talks about the right of the accused to appeal: from Nuremberg and Tokyo to the ad hoc Tribunals and the ICC. It clarifies that the right of convicted persons to revision is, generally, an extraordinary means of doing justice, particularly to known civil law systems, which constitutes an exception to the principle of res judicata. It adds that the right of revision has been explicitly provided for in the ICC Statute, which thus represents a development of international criminal procedure. It suggests that the ICC Statute not only contains procedural rules for the Court but, at the same time, represents a codification of rules on international criminal procedure.Less

Ascertaining the Contents of Domestic Law in Investment Arbitration

Jarrod Hepburn

in Domestic Law in International Investment Arbitration

This chapter sets out a framework for arbitrators when applying domestic law (as law, not fact) in an investment treaty dispute. The chapter focuses on the question of how to ascertain the ... More

This chapter sets out a framework for arbitrators when applying domestic law (as law, not fact) in an investment treaty dispute. The chapter focuses on the question of how to ascertain the substantive contents of that law. In line with other international courts and tribunals, the chapter suggests that investment arbitrators should follow the Brazilian Loans indication to strive to discover and apply domestic law in its full domestic context. The chapter finds good reasons for arbitrators to consider that they are bound by a iura novit curia obligation to discover these contents, particularly on jurisdictional issues. Except where concerns exist about the local legal system, strong weight must be given to domestic case-law, and tribunals must be prepared to resolve uncertainties in this case-law when needed. Expert evidence on domestic law can assist in this process, as long as tribunals are equipped to manage ‘duelling experts’.Less

Defences

Stephen A. Smith

in Rights, Wrongs, and Injustices: The Structure of Remedial Law

Chapter 9 explores remedial defences. It defends three broad arguments. First, the law of remedial defences constitutes a significant, though largely unrecognized, part of remedial law. Second, ... More

Chapter 9 explores remedial defences. It defends three broad arguments. First, the law of remedial defences constitutes a significant, though largely unrecognized, part of remedial law. Second, remedial defences are based on general principles—principles that cut across the historical boundaries between so-called legal and equitable defences. The same defences, and the same governing principles, could easily have developed in a unitary legal system. Third, while the law governing remedial defences appears, in many cases, ripe for reform, the general idea of specifically remedial defences is coherent. In developing these arguments, Chapter 9 distinguishes between substantive and remedial defences, and, within the latter category, between full and partial defences. Examples of full defences (each of which is discussed individually) include limitation periods, absence of formalities, immunities, res judicata, abuse of process, statutory non-actionability, and, in some circumstances, illegality. Examples of partial defences (again, each of which is discussed individually) include adequacy of damages, supervision, personal duties, clean hands, laches, hardship, and public interest.Less

Deviating from the Rules of the Game

David Scharia

in Judicial Review of National Security

This chapter is the third chapter dealing with messages conveyed during the hearing of the case. It shows how the Israeli Supreme Court by deviating from its normal practice conveys messages to the ... More

This chapter is the third chapter dealing with messages conveyed during the hearing of the case. It shows how the Israeli Supreme Court by deviating from its normal practice conveys messages to the Executive. The examples provided in this chapter are based on deviations from the Court’s practice on hearing theoretical questions or hearing a case dealing with a question already decided (res judicata). A specific case analyzed in great detail is the hearing on the targeted killing question. The chapter also discusses how the Court uses deviating from the structure of a hearing in a petition and the anticipated schedule as signaling, as well as messages sent in interim decisions.Less

Lawful Bases

Graham Virgo

in The Principles of the Law of Restitution

This chapter draws upon Birk’s theory that, if there is a lawful basis for the defendant’s receipt of an enrichment, restitution should be denied because there is no reason why the law of restitution ... More

This chapter draws upon Birk’s theory that, if there is a lawful basis for the defendant’s receipt of an enrichment, restitution should be denied because there is no reason why the law of restitution should undermine a lawful transfer. The chapter discusses the following legally effective bases for a transfer of enrichment: contract, discharge of debt, statutory authority, res judicata, natural obligations, gifts, and voluntary transfers. It covers discharge of a contractual obligation, the situation where there is a continual contractual regime, exclusion or provision of restitution by contract, contracting with a third party, settlement and compromise of the claim, and contracts which are unenforceable.Less

Responsibility of the Contracting Member States

Winfried Tilmann

in Unified Patent Protection in Europe: A Commentary

Actions of the Court are directly attributable to each Contracting Member State individually, including for the purposes of Articles 258, 259 and 260 TFEU, and to all Contracting Member States ... More

Actions of the Court are directly attributable to each Contracting Member State individually, including for the purposes of Articles 258, 259 and 260 TFEU, and to all Contracting Member States collectively. Less

Binding effect of decisions or orders subject to security

Martin Chakraborty and Verena Dormann

in Unified Patent Protection in Europe: A Commentary

Pursuant to Rule 354.1, decisions and orders are generally always immediately enforceable. However, they can be made conditional on security being rendered. Rule 352 is considered a key provision ... More

Pursuant to Rule 354.1, decisions and orders are generally always immediately enforceable. However, they can be made conditional on security being rendered. Rule 352 is considered a key provision for all Rules in the Rules of Procedure that provide for the possibility of ordering security to be rendered. In particular, these include Rules 118.8 cl 4, 136, 196.6, and 211.4, of which Rule 136 also contains a direct reference to Rule 352 which, however, is merely of declaratory significance. Less

Contents of the Defence to revocation and Counterclaim for infringement

Martin Faehndrich, Alexander Klicznik, and Max Tilmann

in Unified Patent Protection in Europe: A Commentary

The Defence to revocation must show whether the defendant responds to the revocation action. This is necessary to establish between which persons the procedural law relationship arises.