{"id":2926,"date":"2012-08-14T22:32:31","date_gmt":"2012-08-15T04:32:31","guid":{"rendered":"http:\/\/lawi.us\/?p=2926"},"modified":"2012-08-14T22:32:31","modified_gmt":"2012-08-15T04:32:31","slug":"a-common-law-of-international-adjudication","status":"publish","type":"post","link":"https:\/\/lawin.org\/a-common-law-of-international-adjudication\/","title":{"rendered":"A Common Law of International Adjudication"},"content":{"rendered":"

A Common law<\/a> of International Adjudication<\/h1>\n

Chester Brown
\n(Oxford University Press, Oxford, 2007, liii + 303 pp)<\/em><\/p>\n

The rise of international courts and tribunals in the past few decades has
\nled to a wealth of scholarly studies, the establishment of academic institutions,
\nseminars and publication series. Debates continue over the possibilities, threats and
\nimplications thrown up by states and other subjects of international law
\nincreasingly being able to address grievances before third party dispute settlement
\nbodies. An area of this debate that has not received much attention so far relates to
\nthe procedures, practices and remedies of the international adjudicative bodies
\nhearing these disputes. This area of international law is not often given the
\nprominence it perhaps deserves, and can offer insights into the degree of
\nconvergence, or fragmentation, of the range of international courts and tribunals
\nand their decisions.
\nChester Brown’s new work tackles this area of law with a view to examining
\ndevelopments in the context of the proliferation of international adjudicative
\nbodies. The book is a revised and expanded version of Dr Brown’s doctoral
\ndissertation submitted to Cambridge University in late 2004. It is published by
\nOxford University Press as part of its International Courts and Tribunals Series,
\nunder the general editorship of Cesare Romano and Philippe Sands. The
\nInternational Courts and Tribunals Series encourages the publication of works that
\naddress, in critical and analytical fashion, the legal and policy aspects of the
\nfunctioning of international courts and tribunals, including their institutional,
\nsubstantive and procedural aspects.
\nDr Brown’s central thesis is that international courts and tribunals often utilise
\nsimilar approaches to address procedural issues they face. International courts and
\ntribunals look to each other for guidance on procedure and remedies in a manner
\nthat results in a significant commonality of practice. In Dr Brown’s view, this
\ncommonality and cross-fertilisation has given rise to a ‘ Common law<\/a> of
\ninternational adjudication’. This common law, while not universally applied, is
\nevidence of a more coherent international legal order than perhaps such a
\ndecentralised and fragmented adjudicative architecture would tend to indicate.
\nThe book begins with an explanation of the intended scope of the study, and the
\nprocedures and remedies and the form and types of international adjudication it
\ncovers. For instance, the author does not attempt to consider every aspect of
\ninternational adjudication, but rather focuses on a number of key matters faced by
\ninternational courts and tribunals in the realm of procedure and remedies. The
\nauthor chooses a number of topics that have typically required courts and tribunals
\nto consider their role, availability and applicability as they are often not clearly
\ndefined in the bodies’ constitutive instruments. These topics are: aspects of the
\nrules of evidence; the power to grant provisional measures; the power to interpret
\nand revise judgments and awards; and remedies. The author does not use the term
\n\u2018common law’ with any reference to the Anglo-American legal tradition, but means
\nit to refer to the increasingly homogenous rules applied by international courts and
\ntribunals to questions of procedure and remedies.<\/p>\n

The book sets its contextual background as the proliferation of international
\ncourts and tribunals and the much-debated concerns about fragmentation of
\ninternational law. Despite the self-contained nature of most of these courts and
\ntribunals, their jurisdictional overlaps and the absence of hierarchical systems
\nfamiliar in domestic legal systems, there is still similarity between them that is
\ncapable of producing common approaches. In a separate chapter, the book
\nexamines the methods used by international courts and tribunals to engage in
\ncross-fertilisation. The author takes these principally to be their common sources of
\nlaw, such as the interpretation of constitutive instruments and custom, and the
\ninherent powers of international courts and tribunals as judicial bodies.
\nInternational courts and tribunals use various methods of treaty interpretation to
\nhave regard to other bodies’ practice. They also apply general principles of law and
\nthe author looks extensively at cases where courts and tribunals have relied on their
\ninherent powers and jurisdiction to exercise powers, including powers not
\nexpressly conferred on them.<\/p>\n

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

In another interesting survey of the practice of international courts and
\ntribunals, the book examines their power to grant provisional measures. The
\nchapter looks at the power to grant provisional measures within constitutive
\ninstruments and rules of procedure, under general principles of law and as an
\ninherent power. This is an area where international courts and tribunals have
\nconsidered that they generally have a power to grant provisional measures, whether
\nit has been expressly provided for or not, and have made extensive reference to the
\njurisprudence of other courts and tribunals in exercising it. This has led to a
\nsubstantial commonality in the granting of such measures.<\/p>\n

Two post-adjudicatory powers are then discussed, the powers to interpret and
\nrevise judgments. Included is a short policy and legal discussion on principles
\nimpacting on these powers, principally res judicata, and the limitations of such
\nprinciples. Again the chapter looks to constitutive instruments, rules of procedure
\nand inherent powers of international courts and tribunals in finding the source of
\nthe powers. Relevant issues for the use of these powers are discussed, including the
\njurisdiction and composition of individual courts and tribunals, scope of the powers
\nand conditions for their exercise. Dr Brown suggests that all international courts
\nand tribunals can exercise the power of interpretation, even if not conferred
\nexpressly, as it is necessary for their functions in the Settlement of Disputes<\/a> and it
\nassists the good administration of international justice. With respect to revision, the
\nauthor finds that the case law is not as conclusive on the existence of the power
\nbut, as a matter of principle, it should be considered as an inherent power in order
\nto safeguard against unjust decisions made on the basis of incomplete or fraudulent
\nevidence. Further, the jurisprudence shows that where these powers have been
\nexercised they are generally exercised in a consistent manner by international
\ncourts and tribunals. The chapter considers the WTO dispute settlement system
\nseparately and finds that, despite the differences between the operations of the
\nWTO dispute settlement and other international courts, WTO panels and Appellate
\nBody might nonetheless have the powers of interpretation and revision.<\/p>\n

Remedies are the final issue considered in detail by the author in assessing a
\ndeveloping common law of international adjudication. The book assesses the
\npower to award remedies across a number of international courts and tribunals and
\nthe principle of reparation as a remedy in international law. The three main
\ncomponents of reparation, namely restitution, compensation and satisfaction, are
\nexamined. Dr Brown finds that while there is much common ground in the award
\nof these remedies, there is less consistency in the manner in which they are
\nawarded. Differences appear, for instance in the award of compensation, including
\nbetween human rights courts and the limited practice so far before the International
\nTribunal for the Law of the Sea. Many international courts and tribunals are also
\nrecognising that they have a power to make mandatory awards (such as specific
\nperformance, negative injunctions and orders indicating the conduct required of a
\nstate), but differences remain between courts on the preparedness to issue such
\norders. While the book considers that the remedial regime applicable in the WTO
\ndispute settlement system differs from the law on reparation, as a lex specialis, it is
\nnot immune from influence of general international law on remedies.<\/p>\n

The final two chapters of the book examine the reasons behind the developing
\ncommon law of international adjudication, its limitations and implications. The
\nauthor distils a number of reasons behind the common law on procedure and
\nremedies, such as: the similarity (in drafting and\/or interpretation) behind the
\nconstitutive instruments of international courts and tribunals; the courts and
\ntribunals taking into account developments in other bodies and (theoretically
\nuniversal) Customary International Law<\/a> rules; the exercise of inherent powers; the
\nexercise of essentially similar functions by each court and tribunal; and the
\ncommon legal experience of a relatively small pool of international law
\npractitioners. Limitations identified by the author include: the specific provisions of
\nthe constitutive instruments of the international courts and tribunals; the specific
\nagendas and functions of each court and tribunal; and whether, normatively, it is
\ndesirable for each judicial body to use the same procedures and remedies given that
\nspecial procedures may be appropriate for the dispute or negotiated by the parties
\nto the dispute. In terms of implications, Dr Brown suggests that international
\nadjudicative bodies faced with jurisdictional competition could exercise powers
\nmore familiar to domestic lawyers, such as suspend or dismiss proceedings, or
\norder that parallel proceedings be discontinued. A more profound realisation of the
\nbook’s analysis of the common law of international adjudication is that the courts
\nand tribunals operate as a community whose practices and procedures are relatively
\ncoherent, which in the author’s view demonstrates systemic features in
\ninternational dispute settlement.<\/p>\n

Dr Brown’s detailed study of the commonality in the procedure and remedies
\napplied by a broad range of international courts and tribunals is to be welcomed. It
\nis an insightful and thoughtful work that is clearly and concisely written. The
\nauthor has undertaken a mammoth research task and condensed it into an
\napproachable and lucid study. In his analyses, the author has succeeded in drawing
\nperceptive linkages between areas of diverse jurisprudence. While primarily
\nfocused on an explanation of the law and practice of international courts and
\ntribunals, the book is also usefully informed by normative assessments of the
\nexercise of certain powers and the courts’ and tribunals’ role in the administration
\nof international justice. The book also contains helpful comparisons with domestic
\nlegal systems on questions of procedure and remedies, with equal attention paid to
\ncommon law and civil law approaches.<\/p>\n

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

The book will be a useful addition to the library of all international law
\npractitioners and academics who work in the field of dispute settlement or who
\nnegotiate the Treaties<\/a> establishing adjudicative bodies. Its overview and
\ncomparative assessment of key procedure and remedial issues facing international
\ncourts and tribunals will be essential for any international litigator. In a time when
\ncompulsory jurisdiction is more available than ever before, it is a reminder that
\nprocedures, practices and remedies of international courts and tribunals can and
\nshould shape states’ choice of forum and the prayers for relief sought. Australian
\npractitioners will no doubt be reaching for it as a research and reference tool the
\nnext time they are advising on a potential dispute.<\/p>\n

Main source: Philip Kimpton
\nDEPARTMENT OF FOREIGN AFFAIRS AND TRADE
\nCANBERRA<\/p>\n

\n

Conclusion<\/h3>\n<\/div>\n
\n

Notes<\/h3>\n<\/div>\n
\n

See Also<\/h3>\n<\/div>\n
\n

References and Further Reading<\/h3>\n<\/div>\n
\n

About the Author\/s and Reviewer\/s<\/h3>\n<\/div>\n

Author: international<\/b><\/p>\n<\/p>\n

Mentioned in these Entries<\/h3>\n

Common law<\/a>, Customary International Law<\/a>, Settlement of Disputes<\/a>, Treaties<\/a>. <\/p>\n","protected":false},"excerpt":{"rendered":"

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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[113,13,78,66,5],"tags":[450,30,80],"_links":{"self":[{"href":"https:\/\/lawin.org\/wp-json\/wp\/v2\/posts\/2926"}],"collection":[{"href":"https:\/\/lawin.org\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/lawin.org\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/lawin.org\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/lawin.org\/wp-json\/wp\/v2\/comments?post=2926"}],"version-history":[{"count":0,"href":"https:\/\/lawin.org\/wp-json\/wp\/v2\/posts\/2926\/revisions"}],"wp:attachment":[{"href":"https:\/\/lawin.org\/wp-json\/wp\/v2\/media?parent=2926"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/lawin.org\/wp-json\/wp\/v2\/categories?post=2926"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/lawin.org\/wp-json\/wp\/v2\/tags?post=2926"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}