Journal of International Dispute Settlement最新文献

Unveiling the ‘author’ of international law — The ‘legal effect’ of ICJ’s advisory opinions 揭开国际法 "作者 "的面纱 - 国际法院咨询意见的 "法律效力

IF 0.8 3区社会学

Journal of International Dispute Settlement Pub Date : 2024-07-19 DOI: 10.1093/jnlids/idae015

Vahid Rezadoost

{"title":"Unveiling the ‘author’ of international law — The ‘legal effect’ of ICJ’s advisory opinions","authors":"Vahid Rezadoost","doi":"10.1093/jnlids/idae015","DOIUrl":"https://doi.org/10.1093/jnlids/idae015","url":null,"abstract":"While it is universally accepted that the advisory opinions rendered by the International Court of Justice (ICJ or Court) are not binding as such, scholarly discourse continues to ponder upon whether these opinions can confer any definitive legal effects. The scope of the legal implications stemming from such opinions is considerably broad, encompassing statements of solely evidentiary significance, determinations demanding due consideration, through to authoritative ‘givens’ that are beyond contestation. Examples elucidating these diverse interpretations permeate both academic literature and international practice with the most recent example being the International Tribunal for the Law of the Sea (ITLOS) Special Chamber’s Mauritius/Maldives Judgment, wherein the findings presented in the Chagos Advisory Opinion were treated as authoritative pronouncements of international law with opposable legal effects. This article posits a departure from the mainstream standpoint, contending that while the ICJ’s advisory determinations are non-binding, they are capable of being authoritatively definitive in declaring what international law is in a specific context. The article also suggests that the authority vested in a judicial pronouncement, determining the content of international law, may go beyond its bindingness contingent upon the stature of the authoring entity.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"92 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2024-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141742616","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Continental shelf delimitation beyond 200 nautical miles: Mauritius/Maldives and the forking paths in the jurisprudence 200 海里以外大陆架划界：毛里求斯/马尔代夫和判例中的岔路

IF 0.8 3区社会学

Journal of International Dispute Settlement Pub Date : 2024-03-23 DOI: 10.1093/jnlids/idae009

Xuexia Liao

引用次数: 0

The legitimation of international adjudication 国际裁决的合法性

IF 0.8 3区社会学

Journal of International Dispute Settlement Pub Date : 2024-01-24 DOI: 10.1093/jnlids/idad032

Zuzanna Godzimirska

引用次数: 0

Reflecting on the rule of law contestations narratives in the world trading system 反思世界贸易体系中的法治争议叙事

IF 0.8 3区社会学

Journal of International Dispute Settlement Pub Date : 2024-01-21 DOI: 10.1093/jnlids/idad031

Ngangjoh Hodu Yenkong

引用次数: 0

When the Dragon comes Home to Roost: Chinese Investments in the EU, National Security, and Investor–State Arbitration 当龙回家栖息：中国在欧盟的投资、国家安全和投资者与国家间仲裁

IF 0.8 3区社会学

Journal of International Dispute Settlement Pub Date : 2024-01-09 DOI: 10.1093/jnlids/idad028

Szilárd Gáspár-Szilágyi

{"title":"When the Dragon comes Home to Roost: Chinese Investments in the EU, National Security, and Investor–State Arbitration","authors":"Szilárd Gáspár-Szilágyi","doi":"10.1093/jnlids/idad028","DOIUrl":"https://doi.org/10.1093/jnlids/idad028","url":null,"abstract":"\u0000 The gradual rise of China as an economic, normative, and lending power has resulted in more protectionist measures in areas of the world that traditionally championed economic liberalization. Currently, 21 out of 27 European Union (EU) Member States have national laws or measures in place for the screening or review of foreign investments. However, such restrictive national measures can result in investment treaty-based arbitration under the existing bilateral investment treaties concluded by 26 EU Member States with China, as evidenced by the recent arbitration initiated by Huawei against Sweden. Therefore, this article assesses whether EU Member States are likely to see a spike in investor–State arbitral claims initiated by Chinese investors as a result of the former’s investment screening measures. To achieve this aim, the article first looks at the bilateral investment treaties (BIT)-level variables that can influence the initiation of arbitration against EU Member States, such as the presence and type of investor–State arbitration (ISA) clauses, the types of investments being made, the coverage of the pre- and/or post-establishment phases, or the inclusion of ‘non-precluded measures’ clauses. This is then followed by a look at other variables, such as the decreasing number of Chinese foreign direct investment into EU countries, the treatment of Chinese investors in recent high-profile cases, and the importance of security alliances. The article concludes that those EU States are at a higher risk of being respondents in arbitrations initiated by Chinese investors whose BITs with China include modern ISA clauses, cover the pre-establishment phase, and lack non-precluded measures clauses. However, EU States should wait for the outcome of the Huawei v Sweden arbitration before deciding whether the amendment or termination of the existing BITs with China is needed.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"38 24","pages":""},"PeriodicalIF":0.8,"publicationDate":"2024-01-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139442893","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Independence and impartiality through the lens of incompatible activities, disqualification and challenge: the ICJ, ITLOS, and inter-State arbitration 从不相容活动、取消资格和质疑的角度看独立性和公正性：国际法院、海洋法法庭和国家间仲裁

IF 0.8 3区社会学

Journal of International Dispute Settlement Pub Date : 2024-01-06 DOI: 10.1093/jnlids/idad030

Elena Ivanova

{"title":"Independence and impartiality through the lens of incompatible activities, disqualification and challenge: the ICJ, ITLOS, and inter-State arbitration","authors":"Elena Ivanova","doi":"10.1093/jnlids/idad030","DOIUrl":"https://doi.org/10.1093/jnlids/idad030","url":null,"abstract":"The members of the international courts and tribunals are expected to be independent and impartial. Their constituent instruments normally contain rules which aim at ensuring the independence and impartiality of judges and arbitrators. Such rules typically include provisions addressing activities incompatible with the judicial office, bars to the participation of a judge or an arbitrator in a particular case, when doubts about his/her impartiality arise. They sometimes address but are oftentimes silent on withdrawal, recusal or challenge. This article explores what types of activities can be said to be incompatible with the exercise of judicial functions or to bar the participation of a judge or an arbitrator in a particular case so as to shape the contours of the notions of impartiality and independence. It examines the existing normative arrangements and the practice of inter-State courts and tribunals, including the procedures and practice on withdrawal, recusal, challenge and the standard applied or applicable in assessing whether the requirements for independence and impartiality of international adjudicators have been met.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"1 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2024-01-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139373246","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

The effects of third-party intervention in the adjudication of maritime delimitation disputes 第三方干预对海洋划界争端裁决的影响

IF 0.8 3区社会学

Journal of International Dispute Settlement Pub Date : 2023-12-10 DOI: 10.1093/jnlids/idad029

Stephany Aw

引用次数: 0

New developments in the interpretation and application of the clean hands doctrine by investment tribunals 投资法庭在解释和适用 "干净的手 "原则方面的新发展

IF 0.8 3区社会学

Journal of International Dispute Settlement Pub Date : 2023-11-22 DOI: 10.1093/jnlids/idad027

P. Dumberry

引用次数: 0

International sanctions enacted against Russia as overriding mandatory rules—on which foot should international arbitrators stand? 对俄罗斯实施的国际制裁凌驾于强制性规则之上——国际仲裁机构应该站在哪一边?

3区社会学

Journal of International Dispute Settlement Pub Date : 2023-11-10 DOI: 10.1093/jnlids/idad022

Maxime Chevalier

{"title":"International sanctions enacted against Russia as overriding mandatory rules—on which foot should international arbitrators stand?","authors":"Maxime Chevalier","doi":"10.1093/jnlids/idad022","DOIUrl":"https://doi.org/10.1093/jnlids/idad022","url":null,"abstract":"Abstract Over the last decades, the role of international arbitrators has evolved from dealing with purely private interests to promoting the rule of law worldwide and safeguarding the interests of the international community. Following the armed conflict in Ukraine, a plurality of States has enacted international sanctions against Russia, which are currently impacting the performance of many international contracts. This article analyses the enforcement of international sanctions by international arbitrators as a matter of overriding mandatory public policy rules. This article also draws a new perspective on the subject, by analysing it from two different yet complementary approaches. First, because national courts have supervisory powers at the post-award stage, the reasoning of international arbitrators may depend on whether such international sanctions are regarded as public policy rules within relevant national legal orders. Secondly, because international arbitral tribunals have no forum, their decision regarding the enforcement of international sanctions will depend on the existing legal theories of international arbitration. After comparing the different results under the territorial, multilocal, and transnational approaches, the author advocates for the enforcement of international sanctions against Russia as part of transnational public policy rules.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":" 572","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135185974","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Compensation in the jurisprudence of the International Court of Justice: towards an equitable approach 国际法院判例中的赔偿:走向公平的途径

3区社会学

Journal of International Dispute Settlement Pub Date : 2023-10-16 DOI: 10.1093/jnlids/idad023

Yang Liu

引用次数: 0