A Common Law of International Adjudication

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A Common law of International Adjudication

Chester Brown
(Oxford University Press, Oxford, 2007, liii + 303 pp)

The rise of international courts and tribunals in the past few decades has
led to a wealth of scholarly studies, the establishment of academic institutions,
seminars and publication series. Debates continue over the possibilities, threats and
implications thrown up by states and other subjects of international law
increasingly being able to address grievances before third party dispute settlement
bodies. An area of this debate that has not received much attention so far relates to
the procedures, practices and remedies of the international adjudicative bodies
hearing these disputes. This area of international law is not often given the
prominence it perhaps deserves, and can offer insights into the degree of
convergence, or fragmentation, of the range of international courts and tribunals
and their decisions.
Chester Brown’s new work tackles this area of law with a view to examining
developments in the context of the proliferation of international adjudicative
bodies. The book is a revised and expanded version of Dr Brown’s doctoral
dissertation submitted to Cambridge University in late 2004. It is published by
Oxford University Press as part of its International Courts and Tribunals Series,
under the general editorship of Cesare Romano and Philippe Sands. The
International Courts and Tribunals Series encourages the publication of works that
address, in critical and analytical fashion, the legal and policy aspects of the
functioning of international courts and tribunals, including their institutional,
substantive and procedural aspects.
Dr Brown’s central thesis is that international courts and tribunals often utilise
similar approaches to address procedural issues they face. International courts and
tribunals look to each other for guidance on procedure and remedies in a manner
that results in a significant commonality of practice. In Dr Brown’s view, this
commonality and cross-fertilisation has given rise to a ‘ Common law of
international adjudication’. This common law, while not universally applied, is
evidence of a more coherent international legal order than perhaps such a
decentralised and fragmented adjudicative architecture would tend to indicate.
The book begins with an explanation of the intended scope of the study, and the
procedures and remedies and the form and types of international adjudication it
covers. For instance, the author does not attempt to consider every aspect of
international adjudication, but rather focuses on a number of key matters faced by
international courts and tribunals in the realm of procedure and remedies. The
author chooses a number of topics that have typically required courts and tribunals
to consider their role, availability and applicability as they are often not clearly
defined in the bodies’ constitutive instruments. These topics are: aspects of the
rules of evidence; the power to grant provisional measures; the power to interpret
and revise judgments and awards; and remedies. The author does not use the term
‘common law’ with any reference to the Anglo-American legal tradition, but means
it to refer to the increasingly homogenous rules applied by international courts and
tribunals to questions of procedure and remedies.

The book sets its contextual background as the proliferation of international
courts and tribunals and the much-debated concerns about fragmentation of
international law. Despite the self-contained nature of most of these courts and
tribunals, their jurisdictional overlaps and the absence of hierarchical systems
familiar in domestic legal systems, there is still similarity between them that is
capable of producing common approaches. In a separate chapter, the book
examines the methods used by international courts and tribunals to engage in
cross-fertilisation. The author takes these principally to be their common sources of
law, such as the interpretation of constitutive instruments and custom, and the
inherent powers of international courts and tribunals as judicial bodies.
International courts and tribunals use various methods of treaty interpretation to
have regard to other bodies’ practice. They also apply general principles of law and
the author looks extensively at cases where courts and tribunals have relied on their
inherent powers and jurisdiction to exercise powers, including powers not
expressly conferred on them.

The book then devotes a chapter to each of the key procedural issues faced by
international courts and tribunals where there is evidence of cross-fertilisation. The
first looks at aspects of evidence in international adjudication. The author discusses
the sources of rules of evidence, a range of evidential issues, such as admission of
evidence, burden and standard of proof, and powers of international courts
regarding evidence. The author concludes that international courts and tribunals
have adopted similar approaches to the admission of evidence and the allocation of
the burden of proof. In a very useful survey of the jurisprudence, the author finds
that on the standard of proof required, international courts and tribunals have not
adopted a clear and consistent rule as it tends to differ depending on the gravity of
the claims. International courts and tribunals also generally consider they have the
power to take judicial notice of facts, to request further evidence from the parties,
to draw adverse inferences, to make site visits and to allow some form of expert
participation in a dispute. The author concludes that international courts and
tribunals have broadly similar approaches to these questions, but there is not
complete consistency.

In another interesting survey of the practice of international courts and
tribunals, the book examines their power to grant provisional measures. The
chapter looks at the power to grant provisional measures within constitutive
instruments and rules of procedure, under general principles of law and as an
inherent power. This is an area where international courts and tribunals have
considered that they generally have a power to grant provisional measures, whether
it has been expressly provided for or not, and have made extensive reference to the
jurisprudence of other courts and tribunals in exercising it. This has led to a
substantial commonality in the granting of such measures.

Two post-adjudicatory powers are then discussed, the powers to interpret and
revise judgments. Included is a short policy and legal discussion on principles
impacting on these powers, principally res judicata, and the limitations of such
principles. Again the chapter looks to constitutive instruments, rules of procedure
and inherent powers of international courts and tribunals in finding the source of
the powers. Relevant issues for the use of these powers are discussed, including the
jurisdiction and composition of individual courts and tribunals, scope of the powers
and conditions for their exercise. Dr Brown suggests that all international courts
and tribunals can exercise the power of interpretation, even if not conferred
expressly, as it is necessary for their functions in the Settlement of Disputes and it
assists the good administration of international justice. With respect to revision, the
author finds that the case law is not as conclusive on the existence of the power
but, as a matter of principle, it should be considered as an inherent power in order
to safeguard against unjust decisions made on the basis of incomplete or fraudulent
evidence. Further, the jurisprudence shows that where these powers have been
exercised they are generally exercised in a consistent manner by international
courts and tribunals. The chapter considers the WTO dispute settlement system
separately and finds that, despite the differences between the operations of the
WTO dispute settlement and other international courts, WTO panels and Appellate
Body might nonetheless have the powers of interpretation and revision.

Remedies are the final issue considered in detail by the author in assessing a
developing common law of international adjudication. The book assesses the
power to award remedies across a number of international courts and tribunals and
the principle of reparation as a remedy in international law. The three main
components of reparation, namely restitution, compensation and satisfaction, are
examined. Dr Brown finds that while there is much common ground in the award
of these remedies, there is less consistency in the manner in which they are
awarded. Differences appear, for instance in the award of compensation, including
between human rights courts and the limited practice so far before the International
Tribunal for the Law of the Sea. Many international courts and tribunals are also
recognising that they have a power to make mandatory awards (such as specific
performance, negative injunctions and orders indicating the conduct required of a
state), but differences remain between courts on the preparedness to issue such
orders. While the book considers that the remedial regime applicable in the WTO
dispute settlement system differs from the law on reparation, as a lex specialis, it is
not immune from influence of general international law on remedies.

The final two chapters of the book examine the reasons behind the developing
common law of international adjudication, its limitations and implications. The
author distils a number of reasons behind the common law on procedure and
remedies, such as: the similarity (in drafting and/or interpretation) behind the
constitutive instruments of international courts and tribunals; the courts and
tribunals taking into account developments in other bodies and (theoretically
universal) Customary International Law rules; the exercise of inherent powers; the
exercise of essentially similar functions by each court and tribunal; and the
common legal experience of a relatively small pool of international law
practitioners. Limitations identified by the author include: the specific provisions of
the constitutive instruments of the international courts and tribunals; the specific
agendas and functions of each court and tribunal; and whether, normatively, it is
desirable for each judicial body to use the same procedures and remedies given that
special procedures may be appropriate for the dispute or negotiated by the parties
to the dispute. In terms of implications, Dr Brown suggests that international
adjudicative bodies faced with jurisdictional competition could exercise powers
more familiar to domestic lawyers, such as suspend or dismiss proceedings, or
order that parallel proceedings be discontinued. A more profound realisation of the
book’s analysis of the common law of international adjudication is that the courts
and tribunals operate as a community whose practices and procedures are relatively
coherent, which in the author’s view demonstrates systemic features in
international dispute settlement.

Dr Brown’s detailed study of the commonality in the procedure and remedies
applied by a broad range of international courts and tribunals is to be welcomed. It
is an insightful and thoughtful work that is clearly and concisely written. The
author has undertaken a mammoth research task and condensed it into an
approachable and lucid study. In his analyses, the author has succeeded in drawing
perceptive linkages between areas of diverse jurisprudence. While primarily
focused on an explanation of the law and practice of international courts and
tribunals, the book is also usefully informed by normative assessments of the
exercise of certain powers and the courts’ and tribunals’ role in the administration
of international justice. The book also contains helpful comparisons with domestic
legal systems on questions of procedure and remedies, with equal attention paid to
common law and civil law approaches.

Despite considering it a first-rate book, it is worth mentioning a couple of
minor quibbles. It perhaps says more about this reviewer’s language aptitude, but
the practice of quoting commentators in their original French, adopted a few times
by Dr Brown, adds a level of incomprehension. Publishers may be alienating
potential readers by requiring them to be bilingual to have a full understanding of a
book, an increasingly rare skill amongst young international lawyers. This could be
relatively easily remedied by perhaps paraphrasing the foreign language excerpt for
the simpleton English-only reader. At times the book could also have usefully
expanded on the factual situation behind some of the leading cases and explored
the judgment in more detail to emphasise the point being made however this is of
course a balancing exercise with overall length.

The book will be a useful addition to the library of all international law
practitioners and academics who work in the field of dispute settlement or who
negotiate the Treaties establishing adjudicative bodies. Its overview and
comparative assessment of key procedure and remedial issues facing international
courts and tribunals will be essential for any international litigator. In a time when
compulsory jurisdiction is more available than ever before, it is a reminder that
procedures, practices and remedies of international courts and tribunals can and
should shape states’ choice of forum and the prayers for relief sought. Australian
practitioners will no doubt be reaching for it as a research and reference tool the
next time they are advising on a potential dispute.

Main source: Philip Kimpton
DEPARTMENT OF FOREIGN AFFAIRS AND TRADE
CANBERRA

Conclusion

Notes

See Also

References and Further Reading

About the Author/s and Reviewer/s

Author: international

Mentioned in these Entries

Common law, Customary International Law, Settlement of Disputes, Treaties.

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