Dispute Settlement, Generally Regime law General IL Other sources Nat’l law Affecting: I. Overview: Institutional Factors for Thinking Courts Jurisdiction Temporal and Spatial: (ICTR) (ICC) Bound by time and borders or nearly unlimited Rationae personae: (ICJ), (ICC), (WTO, ICSID) Only states individuals amicus briefs Rationae materiae: (ICJ), (ICC) All questions of international law specific Choice of law Both national and int’l law (ICSID) Only international law (WTO; ICC) Remedies May restrict or expand the general remedies in the articles on state responsibility May or may not be binding, and some courts can’t do this at all Provisional measures: Only damages Only prospective relief Authorize a limited kind of countermeasure (WTO) Binding nature: Several important points— Advisory jurisdiction, because it relates to a general question, may have broader impact Advisory cases may have fewer procedural protections (Namibia) The rule of narrowness might not apply to advisory cases (But see Kosovo) Sometimes the judicial remedy is the only remedy available (WTO DSB) Lex specialis: When will a court generate law— “new” Reason-giving: When a court must explain itself, it tends to make more law (ECJ has been accused of reasoning to the lowest common denominator, as in Kadi) Rules vs. standards Judicial sensibility International procedural law Availability of review Purpose of the body Subject matter Volume of cases Screening by gov’t Rules of interpretation State responsibility Kompetenz-kompetenz Direct effect/supremacy Pedigree of the adjudicator within the institutional context Point of law at issue Reaction of the parties to the underlying dispute Alvarez’s discussion of the of appreciation” as Janus-faced is one of the most interesting Discretion: “margin examples. It allows the judges to change their interpretations over time. Note that the ICJ could have kicked out the case on Example—Nuclear Weapons (WHO): grounds of discretion. It didn’t, and it It suggested four major ideas: made more law this way. Specialty of UN system Limits on imp. powers WHO practice II. The Process of Institutionalized Judicial Settlement Joel Trachtman identifies six in the context of the WTO— Which law Giving meaning Construing rules Filling gaps Resolving conflicts between two or more rules Accommodation III. Emerging Problems
Dispute Settlement, Generally Affecting: Regime law General IL Other sources Nat’l law I. Overview: Institutional Factors for Thinking Courts Jurisdiction Temporal and Spatial: Bound by time and borders (ICTR) or nearly unlimited (ICC) Rationae personae: Only states (ICJ), individuals (ICC), amicus briefs (WTO, ICSID) Rationae materiae: All questions of international law (ICJ), specific (ICC) Choice of law Both national and int’l law (ICSID) Only international law (WTO; ICC) Remedies May restrict or expand the general remedies in the articles on state responsibility Provisional measures: May or may not be binding, and some courts can’t do this at all Only damages Only prospective relief Authorize a limited kind of countermeasure (WTO) Binding nature: Several important points— Advisory jurisdiction, because it relates to a general question, may have broader impact Advisory cases may have fewer procedural protections (Namibia) The rule of narrowness might not apply to advisory cases (But see Kosovo) Lex specialis: Sometimes the judicial remedy is the only remedy available (WTO DSB) When will a court generate “new” law— Reason-giving: When a court must explain itself, it tends to make more law (ECJ has been accused of reasoning to the lowest common denominator, as in Kadi) Rules vs. standards Judicial sensibility International procedural law Availability of review Purpose of the body Subject matter Volume of cases Screening by gov’t Rules of interpretation State responsibility Kompetenz-kompetenz Direct effect/supremacy Pedigree of the adjudicator within the institutional context Point of law at issue Reaction of the parties to the underlying dispute Discretion: Alvarez’s discussion of the “margin of appreciation” as Janus-faced is one of the most interesting examples. It allows the judges to change their interpretations over time. Example—Nuclear Weapons (WHO): Note that the ICJ could have kicked out the case on grounds of discretion. It didn’t, and it made more law this way. It suggested four major ideas: Specialty of UN system Limits on imp. powers WHO practice II. The Process of Institutionalized Judicial Settlement Joel Trachtman identifies six in the context of the WTO— Which law Giving meaning Construing rules Filling gaps Resolving conflicts between two or more rules Accommodation III. Emerging Problems