THE SETTLEMENT OF DISPUTES IN INTERNATIONAL LAW

Transcription

1 THE SETTLEMENT OF DISPUTES IN INTERNATIONAL LAW Institutions and Procedures John Collier Fellow oftrinity Hall, Cambridge and Vaughan Löwe Fellow of Corpus Christi College, Cambridge OXPORD UNIVERSITY PRESS

2 CONTENTS Table ofabbreviations Table ofcases xiii xvii 1. Introduction 1 1. Confiict, disputes and the Law 1 2. The ränge of dispute settlement procedures 5 3. Justiciability 10 PART ONE: INSTITUTIONS 2. Methods of Settlement of Disputes: The Basic Framework Introduction Negotiation Inquiry and fact finding Mediation and good offices Conciliation Arbitration The Permanent Court of Arbitration The use of arbitration in recent times Dispute Settlement Mechanisms and other developments New directions? Iraq and the UN Compensation Commission International Commercial Arbitration Introduction Arbitration rules AG 2.1 The ICC Rules The UNCITRAL Rules National arbitration laws The UNCITRAL Model Law 53 vu

3 4. International agreements on arbitration Concluding remarks MixedArbitrations The International Centre for the Settlement of Investment Disputes (ICSID) 1.1 The ICSID framework Organs Jurisdiction Submission to ICSID jurisdiction Parties to disputes 1.2 ICSID procedure Conciliation Arbitration Enforcement of ICSID awards 2. The Iran-US Claims Tribunal 2.1 The Hostages Crisis 2.2 The Algiers Accords 2.3 The Iran-US Claims Tribunal Claims ofnationals Official claims Interpretative cases Applicable law Enforcement of Iran-US Claims Tribunal Awards Dispute Settlement in the Law of the Sea Introduction ' The International Tribunal for the Law of the Sea The International Court of Justice Annex VII arbitral tribunals Annex VIII Special arbitral tribunals General provisions The Settlement of International Economic Disputes The GATT and WTO Systems The GATT system The WTO System Regional trade dispute settlement Systems The EU System COMESA the Common Market for Eastern and Southern Africa ECOWAS the Economic Community of West African States 109 viu

4 2.4 OtherAfrican economic organisations NAFTA the North American Free Trade Agreement Mercosur Mercado Comun del Sur/the Southern Common Market International financial disputes The IMF The World Bank The Multilateral Investment GuaranteeAgency (MIGA) Concluding remarks The International Court of Justice Participation Composition of the Court and election ofjudges: Dismissal Sittings: Chambers Disqualification ofjudges Adhocjudges President; Vice-President; Registrar; Seat Competence and jurisdiction in contentious cases All cases which the parties refer to the Court Matters specially provided for in the UN Charter Forumprorogatum Treaties or Conventions in force 'Transferred'jurisdiction The Optional Clause The character of the relationships created by a declaration Reservations Domestic jurisdiction 'Automatic' reservations Limitation of jurisdiction to certain categories ofcase Time limitations 'Multilateral treaty' reservations Resort to other means of peaceful settlement Condition of reciprocity Withdrawal or termination of declaration Variation of the terms of a declaration 'Transferred'declarations The Optional Clause: Summary Admissibility Hypothetical nature of the case The case has become 'moot' Lack ofinterest in the subject matter Legal interest ofa third State Other examples 161 rx

5 9. Intervention Construction of a Convention An interest ofa legal nature Interim (provisional) measures ofprotection Jurisdiction The exercise of discretion The scopeofinterim measures Relationship to the claim on the merits Enforcement ofinterim measures Procedure of the Court Effect of judgments Enforcement of judgments Interpretation and revision of judgments Non-appearance Advisory Opinions 182 PART TWO: PROCEDURE 8. The Arbitral Process Introduction Admissibility Nationality of claims Exhaustion oflocal remedies Submission to jurisdiction Written agreement Existing or future differences Defined legal relationship Arbitrability Capacity Validity Who is covered by the arbitration agreement? Third parties: Intervention and joinder Contents of the arbitration agreement Arbitration clauses and Submission agreements The autonomy of the arbitration clause Refusal to arbitrate and the denial of justice Establishment and procedure of arbitral tribunals 218

6 10.1 Timelimits 10.2 Appointment of arbitrators 10.3 Challenge to and disqualification of arbitrators 11. Powers and duties of arbitrators 12. The authority of truncated tribunals 13. Challenges to the tribunals jurisdiction 14. Lexarbitri 15. Delocalisation 16. Procedure 17. Applicable law 18. Remedies 18.1 Interim measures 18.2 Final remedies 19. Theaward 20. Challenges to awards 21. Effects of the award 22. Enforcement of judgments and awards 22.1 The New York Convention 22.2 State immunity APPENDICES Appendix 1. Manila Declaration on the Peaceful Settlement of International Disputes 279 Appendix 2. Hague Convention on the Pacific Settlement of Disputes, Appendix 3. ICSID Convention 302 Appendix 4. UNCITRAL Arbitration Rules 319 Appendix 5. UNCITRAL Model Law 334 Appendix 6. Statute of the International Court ofjustice 346 Appendix 7. Rules of the International Court of Justice 359 Index 391 XI