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In anticipation of the “Judges, Diplomats, and Peacebuilders: Evaluating International Dispute Resolution as a System” panel at the Annual Meeting (Friday, April 10th at 9:00AM), Eckhard Hellbeck provides a short book comment on a recent work published by Springer in the field of international dispute resolution.
As this book’s thought-provoking title “International Dispute Settlement: Room for Innovations?” (in particular, the question mark at its end) suggests, its aim is primarily to consider the potential future development of international dispute settlement rather than discuss its present functioning. The book consists of the proceedings of a seminar held at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg in November 2010. In order to encourage cross-fertilization, the seminar brought together international judges and arbitrators as well as academics with experience of different international courts and tribunals, ranging from the International Court of Justice to international arbitration, and including such specialized institutions as the WTO Appellate Body, the International Tribunal for the Law of the Sea and the International Centre for Settlement of Investment Disputes.
One of the key cross-cutting issues debated in the book is the past and future development of international dispute settlement from a system confined to States to one that is open to non-State actors as well. Based on the past progression from diplomatic protection to the right of action of individuals to claim human rights violations or the right of foreign investors to arbitrate investment disputes, several panels raised the issue of whether similar developments might be possible in other fora (including, for example, the ICJ or the WTO) to the extent the ultimate beneficiary is not a State.
A related debate concerned the role of advisory opinion proceedings as a potential alternative for the settlement of international disputes. The fact that participation in such proceedings typically is not as restricted as in contentious proceedings was thought to make them more amenable to resolving disputes involving non-State actors. At the same time, advisory opinions may derive a greater relevancy in the interpretation of multilateral treaties because they do not, as one panelist put it, “artificially reduce a legal dispute to a matter of bilateral relations.” Despite their non-binding nature, they are nonetheless considered authoritative, and the same court would be expected to rule similarly should the same legal issue appear subsequently in a contentious proceeding.
Other topics discussed were the independence of adjudicators in various fora with different rules and practices of constituting adjudicatory bodies, and potential room for improvement, the desirability of adopting a set of ethical standards for counsel appearing before international courts and tribunals, and the role of international courts and tribunals, as well as of counsel, in developing the law.
Judging from the rich and lively discussion that followed each of the five panel presentations, the seminar apparently was a resounding success. Accordingly, this book is recommended to anyone interested in the progressive development of international dispute settlement.
Eckhard Hellbeck is Counsel at White & Case in Washington, DC. His practice focuses on international arbitration.