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International Dispute Settlement lecture notes week 1 - 7
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Very comprehensive and clear lecture notes week 1 - 7 (with preparatory questions and explanation of case law).
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Voorbeeld 4 van de 68 pagina's
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International dispute settlementPreparation week 1: foundations of international dispute settlement – interstate-arbitration
Contrast the 1907 Hague Convention and the UN Charter (together with the Friendly Relations and
Manila Declarations). What commonalities and differences are there with respect to the means of
dispute settlement addressed? What commonalities and differences exist in respect of the duty to
settle international disputes peacefully? What commonalities and differences exist between both
frameworks in terms of the institutions involved in, and the institutionalization of, international
dispute settlement?
With respect to the means of dispute settlement, the Hague Convention lists good offices, mediation,
international commissions of inquiry and international arbitration. The UN Charter lists negotiation,
enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or
arrangements, or other peaceful means of their own choice in art. 33 UN Charter. So, the difference is
that the UN Charter contains more means of dispute settlement than the Hague Convention.
With respect to the duty to settle international disputes peacefully, the Hague Convention states in
art. 1 that with a view to obviating, as far as possible, recourse to force in the relations between states,
the Signatory Powers agree to use their best efforts to insure the pacific settlement of international
differences. The UN Charter states that the parties to any dispute, the continuance of which is likely to
endanger the maintenance of international peace and security, shall, first of all, seek a solution by the
means listed in the article.
With respect to the institutionalization of dispute settlement, the Hague Convention refers to the
Permanent Court of Arbitration (PCA) and the UN Charter refers to the International Court of Justice
(ICJ).
What role do the different organs of the UN play in the peaceful settlement of international disputes?
And who determines which of the various means of dispute settlement mentioned in the UN Charter
applies to a concrete dispute?
The UN Charter accentuates the trend towards the institutionalization of the peaceful settlement of
international disputes. The Security Council has the primary role with regard to the settlement of
disputes, because when it deems it necessary, it shall call upon the parties to settle their dispute by
such means (art. 33(2) UN Charter), or may make recommendations to the parties to any dispute to
that end if all the parties to any dispute so request (art. 38 UN Charter). Moreover, a dispute not
peacefully settled can constitute a threat to the peace and, if it determines that this is the case (art. 39
UN Charter), the Security Council will have recourse to the measures contemplated in Chapter VII UN
Charter. The General Assembly can refer cases to the attention of the Security Council.
The General Assembly can channel disputes to the ICJ, it can make recommendations to settle disputes
(subject to the provisions of art. 12 UN Charter) and it can set up bodies for dispute resolution (e.g. UN
Panel for Inquiry and Conciliation).
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,Contrast the provisions in the 1907 Hague Convention on arbitration and the ILC Model Rules. What
commonalities and differences exist when it comes to the procedures for establishing arbitral
tribunals, the duties of arbitrators in relation to the parties, the procedure applied by tribunals
themselves, the powers of the tribunals, and the effect of and remedies against arbitral awards?
Procedures for establishing arbitral tribunals:
Hague Convention (1907):
Article 44: Each Contracting Power selects four persons at the most, of known competency in questions
of international law, of the highest moral reputation, and disposed to accept the duties of Arbitrator.
Article 45: When the Contracting Powers wish to have recourse to the Permanent Court for the
settlement of a difference which has arisen between them, the Arbitrators called upon to form the
Tribunal with jurisdiction to decide this difference must be chosen from the general list of Members
of the Court.
Article 46: The Tribunal being thus composed, the parties notify to the Bureau their determination to
have recourse to the Court, the text of their ‘Compromis’, and the names of the Arbitrators. The Bureau
communicates without delay to each Arbitrator the ‘Compromis’, and the names of the other members
of the Tribunal. The Tribunal assembles at the date fixed by the parties. The Bureau makes the
necessary arrangements for the meeting.
ILC Model Rules:
Article 2: 1. Unless there are earlier agreements which suffice for the purpose, for example in the
undertaking to arbitrate itself, the parties having recourse to arbitration shall conclude a compromis
which shall specify, as a minimum: (a) The undertaking to arbitrate according to which the dispute is
to be submitted to the arbitrators; (b) The subject matter of the dispute and, if possible, the points on
which the parties are or are not agreed; and (c) The method of constituting the tribunal and the
number of arbitrators.
Article 3: 1. Immediately after the request made by one of the States Parties to the dispute for the
submission of the dispute to arbitration, or after the decision on the arbitrability of the dispute, the
parties to an undertaking to arbitrate shall take the necessary steps, either by means of the compromis
or by special agreement, in order to arrive at the constitution of the arbitral tribunal.
Article 4: 1. Once the tribunal has been constituted, its composition shall remain unchanged until the
award has been rendered.
Article 6: 1. A party may propose the disqualification of one of the arbitrators on account of a fact
arising subsequently to the constitution of the tribunal. It may only propose the disqualification of one
of the arbitrators on account of a fact arising prior to the constitution of the tribunal if it can show that
the appointment was made without knowledge of that fact or as a result of fraud. In either case, the
decision shall be taken by the other members of the tribunal.
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,The procedure applied by tribunals itself:
Hague Convention (1907):
Article 52: The Powers which have recourse to arbitration sign a ‘Compromis’, in which the subject of
the dispute is clearly defined, the time allowed for appointing Arbitrators, the form, order, and time in
which the communication referred to in Article 63 must be made, and the amount of the sum which
each party must deposit in advance to defray the expenses. The ‘Compromis’ likewise defines, if there
is occasion, the manner of appointing Arbitrators, any special powers which may eventually belong to
the Tribunal, where it shall meet, the language it shall use, and the languages the employment of which
shall be authorized before it, and, generally speaking, all the conditions on which the parties are
agreed.
Article 63: As a general rule, arbitration procedure comprises two distinct phases: pleadings and oral
discussions. The pleadings consist in the communication by the respective agents to the members of
the Tribunal and the opposite party of cases, counter-cases, and, if necessary, of replies; the parties
annex thereto all papers and documents called for in the case. The discussions consist in the oral
development before the Tribunal of the arguments of the parties.
Article 65: Unless special circumstances arise, the Tribunal does not meet until the pleadings are
closed.
Article 66: The discussions are under the control of the President. They are only public if it be so
decided by the Tribunal, with the assent of the parties.
Article 79: The Award must give the reasons on which it is based. It contains the names of the
Arbitrators; it is signed by the President and Registrar or by the Secretary acting as Registrar.
ILC Model Rules:
Article 15: 1. The arbitral procedure shall in general comprise two distinct phases: pleadings and
hearing. 2. The pleadings shall consist in the communication by the respective agents to the members
of the tribunal and to the opposite party of memorials, counter-memorials and, if necessary, of replies
and rejoinders. Each party must attach all papers and documents cited by it in the case. 4. The hearing
shall consist in the oral development of the parties’ arguments before the tribunal.
Article 26: The deliberations of the tribunal shall remain secret.
Article 27: 1. All the arbitrators shall participate in the decisions.
The powers of the tribunals:
Hague Convention (1907):
Article 73: The Tribunal is authorized to declare its competence in interpreting the ‘Compromis’, as
well as the other Treaties which may be invoked, and in applying the principles of law.
Article 74: The Tribunal is entitled to issue rules of procedure for the conduct of the case, to decide
the forms, order, and time in which each party must conclude its arguments, and to arrange all the
formalities required for dealing with the evidence.
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, ILC Model Rules:
Article 9: The arbitral tribunal, which is the judge of its own competence, has the power to interpret
the compromis and the other instruments on which that competence is based.
Article 12: 1. In the absence of any agreement between the parties concerning the procedure of the
tribunal, or if the rules laid down by them are insufficient, the tribunal shall be competent to formulate
or complete the rules of procedure.
Article 18: 1. The tribunal shall decide as to the admissibility of the evidence that may be adduced and
shall be the judge of its probative value. It shall have the power, at any stage of the proceedings, to
call upon experts and to require the appearance of witnesses. It may also, if necessary, decide to visit
the scene connected with the case before it.
Article 20: The tribunal, or in case of urgency its president subject to confirmation by the tribunal, shall
have the power to indicate, if it considers that circumstances so require, any provisional measures
which ought to be taken to preserve the respective rights of either party.
The effect of and remedies against arbitral awards:
Hague Convention (1907):
Article 81: The Award, duly pronounced and notified to the agents of the parties, settles the dispute
definitively and without appeal.
Article 82: Any dispute arising between the parties as to the interpretation and execution of the Award
shall, in the absence of an Agreement to the contrary, be submitted to the Tribunal which pronounced
it.
Article 83: The parties can reserve in the ‘Compromis’ the right to demand the revision of the Award.
In this case and unless there be an Agreement to the contrary, the demand must be addressed to the
Tribunal which pronounced the Award. It can only be made on the ground of the discovery of some
new fact calculated to exercise a decisive influence upon the Award and which was unknown to the
Tribunal and to the party which demanded the revision at the time the discussion was closed.
Article 84: The Award is not binding except on the parties in dispute.
ILC Model Rules:
Article 28: 1. The award shall be rendered by a majority vote of the members of the tribunal. It shall
be drawn up in writing and shall bear the date on which it was rendered. It shall contain the names of
the arbitrators and shall be signed by the president and by the members of the tribunal who have
voted for it. The arbitrators may not abstain from voting.
Article 29: The award shall, in respect of every point on which it rules, state the reasons on which it is
based.
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