crawford - continuity and discontinuity in int'l dispute settlement

Continuity and Discontinuity in

International Dispute Settlement:

An Inaugural Lecture

JAMES CRAWFORD*

1. Introduction

It is an honour to be asked to inaugurate this new Masters course in

International Dispute Settlement, the Geneva MIDS. Geneva is an obvious

location for such a course, given the presence here both of institutions and of

individuals who are so well known in the field as to be institutions in their own

name—Pierre Lalive, most notably. Wherever the Geneva cadre of arbitration

specialists is, there is by definition a centre for dispute settlement. So you are

lucky in your teachers, as well no doubt in your courses. The main course on

‘Organisation of International Dispute Settlement’ takes a thematic approach,

and quite rightly. To teach such a course in segments—the International Court

of Justice (ICJ), the various ad hoc courts and tribunals, the Law of The Sea

Tribunal, the World Trade Organization Dispute Settlement Body (DSB) and

so on—seems to give rise to the kind of fragmentation at the educational level,

which at the practical level is so often lamented. So it is an auspicious time for

introducing this specialist Masters course, a course which at the same time is

specialist and says something about the state of our still-general discipline.

* * *

It is common to talk about a new world of international dispute settlement,

even a ‘brave new world’ as seen through the eyes of Miranda in Shakespeare’s

* Whewell Professor of International Law, University of Cambridge. Email: [email protected]. A lecturegiven in Geneva on 1 October 2008 on the occasion of the inauguration of the Master in International DisputeSettlement (MIDS) program. An earlier version of this text has been published in C Binder and others (eds),International Investment Law for the 21st Century. Essays in Honour of Christoph Schreuer (OUP, Oxford 2009)801–17.

� The Author 2009. Published by Oxford University Press. All rights reserved. For permissions,please e-mail: [email protected]

Journal of International Dispute Settlement, (2009), pp. 1–22doi:10.1093/jnlids/idp001

Tempest used, we might say, to the detestable Caliban of the old state system.1

And we do so positively, rather than with the irony of an Aldous Huxley,

in whose brave new world the principal character ends up killing himself.2

That there is something new in the present state of international dispute

settlement seems undeniable. This may be evidenced by the existence of many

agreements and institutions: the World Trade Organization (WTO), on any

view the most successful inter-state system of dispute settlement ever, the

horde of bilateral investment treaties (BITs) and now multilateral investment

treaties, the United Nations Convention on the Law of the Sea,3 which

established a complex system of dispute settlement, among others.

There exists also a burgeoning number of regional courts, among which, the

European Court of Justice (ECJ), the Central American Court of Justice, the

Caribbean Court of Appeal—all more or less international (though the ECJ

defines itself as a national court when it is convenient and as an international

court when it is necessary to prevail over other national courts in Europe4).

There is also increased resort to the ICJ.5 ‘Oh, brave new world that has such

systems in it!’

And yet on a closer look, strong continuities with the world of the Alabama

arbitration,6 the Venezuela Claims Commission7 and the Permanent Court of

Arbitration (PCA) may be seen. The ‘brave new world’ of international dispute

settlement turns out to have a great deal of the old world in it too.

Before comparing and contrasting the international dispute settlement

paradigms of a century ago and today, a terminological issue arises. What,

after all, is international dispute settlement? This question leads us, in turn,

to ask the public/private question. Is international dispute settlement properly

so-called confined to cases between international legal persons, states and other

1 W Shakespeare, The Tempest (new edn Cambridge University Press, Cambridge 2002) Act V sc 1, l. 182.2 A Huxley, Brave New World (Chatto & Windus, London 1932).3 United Nations Convention on the Law of the Sea (adopted 10 December 1982) (1982) 1833 UNTS 3.4 Cases No C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v

Council of the European Union and Commission of the European Communities (ECJ 3 September 2003).5 See, for instance, address of President Rosalyn Higgins to the UN General Assembly of 30 October 2008

in respect of the ICJs activities for the period 2007–08, where Judge Higgins described this as ‘a period of intensejudicial activity’. See also, ICJ, ‘Report of the International Court of Justice’ (1 August 2007—31 July 2008),UN Doc A/63/4, para 17.

6 Alabama Claims Arbitration (UK v US), 1872, in JB Moore, International Arbitrations (Government PrintingOffice, Washington 1898) i. 653.

7 Established pursuant to a series of agreements: Protocol of an Agreement of 17 February 1903 between theSecretary of State of the United States of America and the Plenipotentiary of the Republic of Venezuelafor Submission to Arbitration of all Unsettled Claims of Citizens of the United States of America against theRepublic of Venezuela (United States–Venezuela) 9 UNRIAA 113; Protocol of Agreement between thePlenipotentiary of his Majesty the King of the Belgians and the Plenipotentiary of Venezuela for Submission toArbitration and Payment of all Unsettled Claims of the Government and Subjects of Belgium against theRepublic of Venezuela of 7 March 1903 (Belgium–Venezuela) 9 UNRIAA 319; Protocol of 13 February1903 and Protocol of 7 May 1903 (Great Britain–Venezuela) 9 UNRIAA 349; Protocol of 27 February 1903(Commission France–Venezuela) 10 UNRIAA 1; Protocol of 13 February 1903 and Protocol of 7 May 1903(Germany–Venezuela) 10 UNRIAA 357; Protocol of 13 February 1903 and Protocol of 7 May 1903 (Italy–Venezuela) 10 UNRIAA 477; Protocol of 26 February 1903, (Mexico–Venezuela) 10 UNRIAA 693; Protocol of28 February 1903 (Netherlands–Venezuela) 10 UNRIAA 707; Protocol of 2 April 1903 (Spain–Venezuela) 10UNRIAA 735; Protocol of 10 March 1903 (Sweden and Norway–Venezuela) 10 UNRIAA 761.

Journal of International Dispute Settlement2

entities assimilated to states, such as the European Union (EU)? How does the

BIT phenomenon fit into the picture?

I want to test that question in several ways. First, it must be asked whether

there is a special legal field of international commercial arbitration, a part of

which falls well and truly within the scale of the rubric ‘international dispute

settlement’. The answer to this question may be obtained by looking at the

subjects which fall within the field of international commercial arbitration, the

subjects which revolve around the continuing tension between party autonomy

and control by national courts. But it is to be noted that when analysing the

institutions of international commercial arbitration no common definition of

what constitutes international commercial arbitration may be found.

For instance, the 1958 New York Convention indicates in Article I:

1. This Convention shall apply to the recognition and enforcement of arbitral awards

made in the territory of a State other than the State where the recognition and

enforcement of such awards are sought, and arising out of differences between

persons, whether physical or legal. It shall also apply to arbitral awards not considered

as domestic awards in the State where their recognition and enforcement are sought.

[. . .] 3. When signing, ratifying or acceding to this Convention, or notifying extension

under article X hereof, any State may on the basis of reciprocity declare that it will

apply the Convention to the recognition and enforcement of awards made only in the

territory of another Contracting State. It may also declare that it will apply the

Convention only to differences arising out of legal relationships, whether contractual

or not, which are considered as commercial under the national law of the State

making such declaration.8

Article 1 of the United Nations Commission on International Trade Law

(UNCITRAL) Model Law establishes in relevant part:

3. An arbitration is international if:

(a) the parties to an arbitration agreement have, at the time of the conclusion of

that agreement, their places of business in different States; or

(b) one of the following places is situated outside the State in which the parties

have their places of business:

(i) the place of arbitration if determined in, or pursuant to, the arbitration

agreement;

(ii) any place where a substantial part of the obligations of the commercial

relationship is to be performed or the place with which the subject-matter

of the dispute is most closely connected; or

(c) the parties have expressly agreed that the subject-matter of the arbitration

agreement relates to more than one country.9

8 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (adopted 10 June 1958)(1958) 330 UNTS 38.

9 UNCITRAL, ‘Model Law on International Commercial Arbitration’ (adopted 21 June 1985, amended7 July 2006) UN Doc A/40/17, Annex I and A/61/17.

Continuity and Discontinuity in Dispute Settlement 3

Article I, sub-paragraph 1 of the International Chamber of Commerce (ICC)

Rules of 1998 state:

1. The International Court of Arbitration (the ‘Court’) of the International Chamber

of Commerce (the ‘ICC’) is the arbitration body attached to the ICC. The statutes of

the Court are set forth in Appendix I. Members of the Court are appointed by the

World Council of the ICC. The function of the Court is to provide for the settlement

by arbitration of business disputes of an international character in accordance with

the Rules of Arbitration of the International Chamber of Commerce (the ‘Rules’).

If so empowered by an arbitration agreement, the Court shall also provide for the

settlement by arbitration in accordance with these Rules of business disputes not of

an international character.10

Articles 1(2) and 25 of the International Convention for the Settlement of

Investment Disputes (ICSID) establish, respectively, that:

Article 1. [. . .] (2). The purpose of the Centre shall be to provide facilities for

conciliation and arbitration of investment disputes between Contracting States and

nationals of other Contracting States in accordance with the provisions of this

Convention.

Article 25. (1). The jurisdiction of the Centre shall extend to any legal dispute arising

directly out of an investment, between a Contracting State (or any constituent

subdivision or agency of a Contracting State designated to the Centre by that State)

and a national of another Contracting State, which the parties to the dispute consent

in writing to submit to the Centre. When the parties have given their consent, no

party may withdraw its consent unilaterally.11

Section 85 of the English Arbitration Act of 1996 indicates:

(2) For this purpose a ‘domestic arbitration agreement’ means an arbitration

agreement to which none of the parties is—

(a) an individual who is a national of, or habitually resident in, a State other

than the United Kingdom, or

(b) a body corporate which is incorporated in, or whose central control and

management is exercised in, a State other than the United Kingdom,

and under which the seat of the arbitration (if the seat has been designated or

determined) is in the United Kingdom.12

At the outset it may be noted that the ICSID definition is in a class of its

own: it has the very specific purpose of distinguishing investment disputes to

which the ICSID system applies from other disputes not falling within the

ambit of that system. But all the other definitions characterize international

commercial arbitration, the subject of the regulation, in an inclusive way.

10 ICC, ‘International Chamber of Commerce Arbitration Rules 1998’ <http://www.jus.uio.no/lm/icc.arbitration.rules.1998/.> (accessed 17 August 2009).

11 Convention on the Settlement of Investment Disputes between States and Nationals of other States(adopted 18 March 1965) (1965) 575 UNTS 159.

12 Arbitration Act 1996 (UK).


http://www.jus.uio.no/lm/icc

In effect, international commercial arbitration is everything that is not excluded

from the field of international commercial arbitration.

This inclusive approach may be evidenced from the attitude of the Supreme

Court of British Columbia in the annulment of the North American Free

Trade Agreement (NAFTA) arbitration in the case of Metalclad Corporation v

United Mexican States, which turned on the question whether the underlying

dispute was an international commercial dispute, to which the one set of the

British Columbian rules applied.13 The issue was not whether the dispute was

international but whether it was commercial:

A threshold issue is the determination of which of two statutes governs this Court in

its review of the Award. As a result of the choice of Vancouver as the place of the

arbitration, the two potentially applicable statutes are both British Columbia Acts,

the International Commercial Arbitration Act, R.S.B.C. 1996, c. 233 (the ‘International

CAA’) and the Commercial Arbitration Act, R.S.B.C. 1996, c. 55 (the ‘CAA’). Neither

party challenged the jurisdiction of this Court on the basis of the legitimacy of

naming Vancouver as the place of arbitration. The choice between the statutes

depends, not on the interpretation of the word ‘international’ as one might expect

from the difference in the names of the two statutes, but on the meaning of the word

‘commercial’. The most important distinction between the two statutes, for the

purposes of this proceeding, is that the CAA allows the court to review points of law

decided by the arbitral body, while the International CAA is more restrictive.14

The Supreme Court found that the dispute between Metalclad and Mexico

had arisen from a commercial relationship, in the form of an investment,

and therefore the International Commercial Arbitration Act applied to it.15

Indeed, it might be said that international arbitration is any arbitration that is not

domestic and that commercial dispute is any dispute that is not non-commercial.

Another apparently new phenomenon is that of mixed international arbi-

tration, the so-called BIT ‘revolution’. An important decision of the English

Court of Appeal in 2005, Ecuador v Occidental,16 held that awards given under

bilateral investment treaties are directly enforceable in the English courts,

notwithstanding that the underlying treaty is not part of English law and is

therefore itself non-justiciable and notwithstanding that the agreement to

arbitrate is not contained in any discrete contract.17 The Court said that, in the

circumstances, the award of an investment arbitral tribunal under a BIT is

reviewable in the English courts. The implication is that a foreign BIT award

is enforceable there.

13 ICSID, Case No ARB(AF)/97/1, Award, Metalclad Corporation v United Mexican States (AdditionalFacility)? (30 August 2000); ICSID, United Mexican States v Metalclad, 5 ICSID Rep 236 (Supreme Court ofBritish Columbia, (2001) BCSC 664).

14 United Mexican States v Metalclad, ibid, para 39.15 Paras 39–40.16 Ecuador v Occidental Exploration & Production Co, UK Court of Appeal (Civil Division), 9 September 2005,

[2005] EWCA Civ 1116.17 Paras 50–58.


It is striking that the principal authority quoted by the Court of Appeal in

Occidental in support of the proposition that individuals could have enforceable

international rights under treaties domestically enforceable without implemen-

tation was a decision of the Permanent Court of International Justice (PCIJ) in

the case Jurisdiction of the Courts of Danzig in 1928. There, the Permanent

Court said:

It may be readily admitted that, according to a well established principle of

international law, the [treaty], being an international agreement, cannot, as such,

create direct rights and obligations for private individuals. But it cannot be disputed

that the very object of an international agreement, according to the intention of the

contracting Parties, may be the adoption by the Parties of some definite rules creating

individual rights and obligations and enforceable by the national courts.18

It may be objected that this statement is tainted by a logical fallacy, for it is

contained in a decision of an international court, and not a decision of a

national court. The national courts had already pronounced themselves on

the matter: they had held that the rights of the Danzig employees of the Polish

railways could be the subject of an action in the courts of Danzig, a proposition

which was not accepted by the Polish government and which had been

submitted for the decision to the League of Nations-appointed High

Commissioner for Danzig.19 The High Commissioner, in turn, had maintained

that the 1921 Agreement did not constitute the contract of the railway

employees and that therefore the rights established in the 1921 Agreement

could not be the subject of an action in the Danzig courts.20 For the High

Commissioner, no rights appeared to subsist under the international agree-

ment. So, what the Court did in Jurisdiction of the Courts of Danzig was to

cleverly combine the principle of sovereignty, the Wimbledon principle21—the

parties may have the intention of creating enforceable rights—with the further

18 Jurisdiction of the Courts of Danzig (Pecuniary Claims of Danzig Railway Officials who have passed intothe Polish Service, Against the Polish Railways Administration), PCIJ Rep Series B No 15 (1928), 3, 17–18,quoted in Ecuador v Occidental, para 19.

19 Menge v the Polish Treasury (1925) 3 ILR 340, 341 (High Court of Danzig); Ferdinand Flander v PolishRepublic, Decision of 1 May 1926, PCIJ Rep Series C No 14-I (1928), 255; August Holz v Polish Republic,Decision of 5 December 1927, PCIJ Rep Series C No 14-I (1928), 452. The High Commissioner, according toart 103 of the Treaty of Versailles, was to be appointed by the League of Nations and was entrusted ‘with theduty of dealing in the first instance with all differences arising between Poland and the Free City of Danzig inregard to this Treaty or any arrangements or agreements made thereunder’.

20 Jurisdiction of the Courts of Danzig (n 18) 16.21 Case of the SS Wimbledon (UK, France, Italy, Japan and Poland (intervening) vGermany), PCIJ Rep Series A

No 1 (1923), 15, where the Permanent Court, faced with objections by Germany that art 380 of the VersaillesPeace Treaty, requiring it to allow free transit of vessels through the Kiel Canal, determined a deprivation ofrights which were essential in the concept of sovereignty and should therefore be interpreted restrictively, heldthat:

The Court declines to see in the conclusion of any treaty by which a State undertakes to perform or refrainfrom performing a particular act an abandonment of its sovereignty. No doubt any Convention creating anobligation of this kind places a restriction upon the exercise of the sovereign rights of the State, in the sensethat it requires them to be exercised in a certain way. But the right to enter into international engagements isan attribute of State sovereignty (25)


undisputed proposition of international law that a state cannot rely upon its

own national law to justify failure to comply with its international obligations.

The principle that a state cannot rely on deficiencies in its internal legislation

to justify a breach of international law dates back to the Alabama arbitration

in 1871.22

In turn, the English courts in Occidental treated the intention of

States Parties—just as the Court did in Jurisdiction of the Courts of Danzig—

to unimplemented treaties to make rights enforceable at the instance of

individuals as a reason to create a further exception to the non-justiciability

doctrine.23

The point sought to be made is that the ‘BIT revolution’, reinforced by the

Occidental case, has deeper roots than may be thought. It goes back to the PCIJ

in 1928 and the arbitration tribunal in the Alabama case of 1871. More

generally these two examples show that, even in reliance on decisions from the

period of classical dualism, the boundaries between the international and the

national, the public and the private, turn out to be more permeable than it

might have been thought.24 Judge Anzilotti, the most influential judge on the

Court at the time of Jurisdiction of the Courts of Danzig—and President of the

Court at the time of the opinion—subsequently denied extra-judicially that

the Court could possibly have said that which it plainly did say.25 His dualism

did not allow him to admit it.

At any rate, the field of the international in this broad sense is not new. And

I am suspicious of theoretical constructs which imply that it has to be new,

including those of Judge Anzilotti.

2. The Acquis of 1899: International Dispute Settlementat the Time of the Hague Peace Conferences

It is often thought that the acquis of international arbitration at the end of the

19th century and the beginning of the 20th century was based on a stereotype

of arbitration as a wholly exceptional phenomenon and that the achievement of

the 20th century was the transformation of that acquis into something

completely new, into our ‘brave new world’.

But I think this is not true. A standard model of 19th-century arbitration

certainly existed, and it can be seen lurking in the public arbitrations in

22 For modern codification of this principle see Vienna Convention on the Law of Treaties, art 27; Articles onthe Responsibility of States for Internationally Wrongful Acts, art 32.

23 Ecuador v Occidental, paras 19 and 20.24 M Chapman, ‘The Interlaced History of Public and Commercial Arbitration, 1794 to 1999’ in

International Bureau of the PCA (ed.), International Alternative Dispute Resolution: Past Present and Future. ThePermanent Court of Arbitration Centennial Papers (Kluwer Law International, The Hague 2000), 80–1.

25 D Anzilotti, Cours de droit International (Librairie de Recueil Sirey, Paris 1929), 407–8, 133–4. For furtherdiscussion on the issue see: G Gaja, ‘Positivism and Dualism in Dionisio Anzilotti’ (1992) 3 EJIL 123. Seefurther, K Parlett, ‘The PCIJ’s Opinion in Jurisdiction of the Courts of Danzig. Individual Rights under Treaties’(2008) 10 J Hist Int L 119.


that time. This standard model of international arbitration was characterized

by certain elements. First of these was its ad hoc character, resulting from the

absence of permanent institutions.26 Second, there were some awards that were

simply decisions by umpires which—for all the world knew—might have been

made on the basis of the toss of the coin.27 The parties principally relied on

decisions by an umpire or sole arbitrator who was entitled to proceed and

decide alone in the event of a disagreement between the party-appointed

arbitrators; in contrast, arbitrators acted more in the model of delegates.28

Third, there existed a rather faint distinction between arbitration and other

modes of settlement.29 Fourth, there was an unclear priority of the inter-

national over the domestic.30 Finally, arbitrations were subject to what may

be called the ‘contingency of consent’. This ‘contingency of consent’ can be

exemplified through the common law on arbitration in force in England before

the adoption of the 1698 Act, according to which, notwithstanding the exist-

ence of a contractual submission to arbitration, the party, at any time before

the award was rendered, could withdraw the contractual submission made.31

This no doubt entailed a breach of contract, but it was a breach the arbitrator

had no authority to decide. This situation was only resolved in the 19th

century by legislation establishing that the mandate of an appointed arbitrator

was not revocable.32

But this model seems to have been effectively obsolete by the end of the 19th

century: international arbitration, from a simple expedient, gained recognition

as a mechanism for delivering justice.33 The acquis by the beginning of the

20th century was the acquis of the two Hague conferences of 1899 and 1907,

which was built on institutional and other developments throughout the 19th

century. Both the conventions codified the existing rules and made an attempt

to develop them further.34 Some interesting figures may be drawn from Stuyt’s

Survey of International Arbitration:35

26 WL Penfield, ‘International Arbitration’ (1907) 1 AJIL 330, 331; RF Clarke, ‘A Permanent Tribunal ofInternational Arbitration: Its Necessity and Value’ (1907) 1 AJIL 342, 343, indicating the PCA as the firstpermanent institution for international arbitration.

27 CH Brower II, ‘Arbitration’ in R Wolfrum (ed.), The Max Planck Encyclopaedia of Public International Law(2008) <http://www.mpepil.com> para 11. (accessed 17 August 2009).

28 JH Ralston, ‘Some Suggestions as to the Permanent Court of Arbitration’ (1907) 1 AJIL 321, 322–3;Penfield (n 26) 332.

29 See (n 27) above.30 See eg Martini case, 10 UNRIAA 644 (1903).31 M Mustill and S Boyd, The Law and Practice of Commercial Arbitration in England (2nd edn Butterworths,

London and Edinburgh 1989), 434.32 See s 9 of Civil Procedure Act of 1833 (UK).33 Penfield (n 26) 330.34 HJ Schlochauer, ‘Arbitration’ in Bernhardt (ed.), Encyclopaedia of Public International Law [Instalment 1]

(North-Holland Publishing Company, Amsterdam 1981) 13, 17.35 Data from AM Stuyt, Survey of International Arbitrations 1794–1989 (3rd updated edn M. Nijhoff,

Dordrecht/Boston/London 1990).


http://www.mpepil.com

International arbitrations in periods according to Stuyt

Number of

arbitral

agreements

or treaties

signed

. . . of these dis-

putes, those

eventually

settled by

conventions,

agreements,

protocols or

proces-verbaux

. . . those not

settled, or

settled through

other means, or

about which no

information is

available

. . . those

which gave

rise to one

or more

known arbi-

tral award

Total number

of arbitral

awards

(estimate)

1794–1899 (until First Hague Conference)

Interstate 227 34 32 161 6,117

Between

states and

other

entities

1 1

1899–1922 (from First Hague Conference until creation of PCIJ)

Interstate 125 6 22 97 266 (many more

are unaccounted

for)

Between

states and

other

entities

6 6

1923–89

Interstate 195 1 12 182 309 (many are

unaccounted for,

including all

Iran–US Claims

Tribunal awards)

Between

states and

other

entities

84 3 9 72 76

In the first period—covering essentially the whole of the 19th century—

6,000 arbitral awards in the international domain are recorded. In the period

from 1899 to 1922—covering World War I—the number is in the low

hundreds, whereas in the period from 1922 to 1989 the number is in the upper

hundreds. There were more arbitrations, according to Stuyt, in the 19th

century than there were in the 20th.36

36 The figures, remarkable in any event, are partly distorted, in particular, by the failure to take account asindividual cases of the caseload of the US/Iran Claims Tribunal.


The 19th century has more to say for itself, perhaps, than we might give

credit for it. The abolition of the old concept, which I have described as

contingent of consent concept of arbitration, also occurred in private law. The

evolution of the British arbitration legislation could be traced from the first

Act, as long ago as 1698,37 through the legislation of 1889 which introduced

a recognizably modern conception of arbitration38 to the 1934 Act,39 building

on the two Geneva Agreements of the 1920s. It was followed by the 1950,40

197941 and 1996 Acts,42 to name the most important ones.43

It is common to say that the 1996 Act is the fully modern act, the ‘true

embodiment of everything that’s excellent’,44 but it builds demonstrably on

the work that had been done earlier in that century, even going back to the

legislation of a century earlier, of 1889. It is thus accurate to state that there

existed a framework for international dispute settlement by the beginning of

the 20th century. It is interesting to note, for example, that the Statute of the

PCIJ can be found in its first draft in an American proposal to the Second

Peace Conference of 1907 that met with British and German approval,45 but

which eventually was not adopted due to disagreement in respect of the

jurisdiction of the court and the election of judges.46 The text of the proposal

was nevertheless attached as an annex to the final Act of the 1907

Conference,47 and the text eventually adopted in 1920 has been described as

containing very few new ideas.48

3. Discontinuity in the Institutions of InternationalDispute Settlement

Thus, there already existed a fully modern conception of arbitration at the

beginning of the 20th century. The 20th-century contribution to international

dispute settlement was substantial. Out of various achievements, one stands

37 Act for Determining Differences by Arbitration (UK).38 Arbitration Act 1889 (UK).39 Arbitration Act 1934 (UK).40 Arbitration Act 1950 (UK).41 Arbitration Act 1979 (UK).42 Arbitration Act 1996 (UK).43 Other Arbitration Acts were adopted in 1854, 1924, 1930, 1932 and 1975.44 WS Gilbert and AS Sullivan, Iolanthe or The Peer and the Peri. Vocal Score (George Bell & Sons, London

1910).45 JB Scott, ‘Proposed Court of Arbitral Justice’ (1908) 2 AJIL 772.46 HJ Schlochauer, ‘Permanent Court of International Justice’, in Bernhardt ed, Encyclopaedia of Public

International Law [Instalment 1] (North-Holland Publishing Company, Amsterdam 1981) 163.47 JB Scott, ‘Work of the Second Hague Peace Conference’ (1908) 2 AJIL 1, 25.48 M Hudson, quoted in O Spiermann, ‘Historical Introduction’ in A Zimmerman and others (eds), The

Statute of the International Court of Justice, A Commentary (OUP, Oxford 2006), 41.


out: the 20th century brought institutions into the world of international

dispute settlement. In Eli Lauterpacht’s words:

[I]t can readily be seen that when the concept of true judicial settlement was

introduced in the form of the PCIJ in 1920, judicial settlement—apart from the

short-lived Central American Court of Justice—was novel rather than normal. States

were much more accustomed to un-institutionalized dispute settlement.49

These institutions defied the classical Grotian view of international law, as in

essence a body of law absolutely stripped of institutions.50

In clear contrast with Grotius’ view of international law as institution-less,

the 20th century saw the development of a large number of institutions and the

struggle against the ‘ad hoc’: not a struggle against the existing conception

of arbitration, but rather a struggle against ad hoc arrangements for dispute

settlement. It is no accident that shortly after the first real permanent court was

established at the public international level—the PCIJ in 1920—the arrange-

ments for the International Court of Arbitration of ICC were completed.51

Significantly, the development of institutions was not limited to dispute

settlement bodies. It extended to other domains, and many institutions for

the development of the rules and mechanisms of dispute settlement were

established—UNCITRAL, the Hague Conference, etc., to name a few. And yet

looking at this panoply of activity raises the question of what is institutional

and what is ad hoc?

A good example is one of the most important treaties in general arbitration:

the New York Convention on Recognition and Enforcement of Foreign Arbitral

Awards of 1958 to which 143 states are parties.52 The Convention has had

a great influence on domestic legislation and has been a major incentive to the

development of international commercial arbitration. And yet the origins of

the Convention are easily identified: the Convention is an amalgam of two

conventions concluded in the 1920s in Geneva, the 1923 Geneva Protocol on

Arbitration Clauses,53 which is, as it were, the front end of the beast of the

1958 Convention; and the Geneva Convention on the Execution of Foreign

Arbitral Awards of 1927,54 which is the back end. Thus, the problems

encountered in the articulation of the New York Convention of 1958 are due to

the failure to fully assimilate the different elements of the two predecessor

texts. The struggle for permanence can also be recognized in the various

institutions that were established during the 20th century, for example,

49 E Lauterpacht, Aspects of the Administration of International Justice (Grotius, Cambridge 1991), 15.50 H Grotius, The Rights of War and Peace (Liberty Fund, Indianapolis 2005). See H Bull, ‘The Importance of

Grotius in the Study of International Relations’ in H Bull, B Kingsbury and A Roberts (eds), Hugo Grotius andInternational Relations (Clarendon Press, Oxford 1992) 65, 78–91 quoted by F Orrego Vicuna, InternationalDispute Settlement in an Evolving Global Society (Cambridge University Press, Cambridge 2004), 1.

51 Chapman (n 24) 78.52 Multilateral Treaties Deposited with the Secretary-General, Chapter XXII, No 1.53 Geneva Protocol on Arbitration Clauses (1923) 27 LoNTS 57.54 Geneva Convention on the Execution of Foreign Arbitral Awards (1927) 92 LoNTS 30.


the creation of the PCA, which was not a court and did not itself engage in

arbitration.55 Although a home for ad hoc tribunals, it achieved permanence:

it is still in existence a century later, performing valuable functions for a range

of hybrid cases as well as more normal inter-state ones. But longevity was not

a given: the founders of the PCIJ—just as the founders of the PCA—were so

insecure about the permanence of the institution they were creating that the

word ‘permanent’ had to be written into its name. It was only in 1945 that the

word ‘permanent’ was dropped.56

Other examples of new institutions include the ICSID, the International

Tribunal on the Law of the Sea (ITLOS) and the dispute settlement system

under the WTO.

Yet, looking at all these institutions there still are elements of the ad hoc, such as

ad hoc Tribunals, judges, chambers and the panels under the dispute settlement

system of the WTO system. These institutions, additionally, operate in parallel

with regional courts and tribunals and in parallel with the latter’s own struggle

against impermanence or against the prior consent of the States Parties, a clear

example of which is the evolution of the European Court of Human Rights,

which achieved compulsory jurisdiction over all party states to the European

Convention on Human Rights in 1998 with the adoption of Protocol 11.57

So the 20th century has brought institutions and it has, especially in the last

15 years, brought a vast increase in the number of disputes being submitted to

these institutions. It is more common for practitioners these days to have the

choice between methods of dispute settlement than to have none, whereas

not so long ago it was more common not to have any forum to appeal to.

These days more time is spent arguing about the merits of sending a case,

for example, to the International Court or to arbitration under Part XV of

United Nations Convention on the Law of the Sea (UNCLOS), to take one

example, and similarly as between the various methods for the resolution of

international commercial disputes and the BITs pursuant to ICSID under the

ICC, and so on. There are real situations of choice and the new challenge is to

work out what the corollaries and systematic implications of choice are.

4. Continuity in the Institutions of InternationalDispute Settlement

There are also institutions in another sense—a sense that Grotius would have

recognized. These are the accustomed opinions of our activity in a variety of

genres, which give meaning to what we do, and which provide the language

55 See JB Scott, Proceedings of the Hague Peace Conferences: The Conference of 1899 (Vol 2 OUP, New York1920) 319, quoted in Spiermann (n 48) 43.

56 The word continues to appear in the name of the PCA.57 Protocol No 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ETS

155; 33 ILM 960.


and the thought structures for activity in different venues. And here there are

unexpectedly deep roots: the distinction between jurisdiction and admissibility,

for instance, thought of as having been recently invented in the BIT context,

or the distinction between annulment, revision and appeal. There was a quite

extensive inter-war experience with appeals from international courts, now

largely forgotten.58 I will only deal here with two of these institutions: the

principle of ‘kompetenz-kompetenz’ or ‘competence de la competence’, and the

relations between competing tribunals.

A. Kompetenz-Kompetenz

There can hardly be any more famous principle than kompetenz-kompetenz. Yet,

the phrase is comparatively new. It dates, in its French version competence de la

competence, to 1949: Fouchard, Gaillard and Goldman cite a case of 1949 as

the first expression of the concept of competence-competence.59 The phrase

‘kompetenz-kompetenz’ refers to the power of a tribunal to determine its own

jurisdiction. It is now taken for granted. But the rule is much older than the

neologism ‘kompetenz-kompetenz’.60 It is like another neologism that public

international lawyers use, opinio juris, which was first used only in 1925,61

despite the fact that international law has existed for a good deal longer.

And the principle of kompetenz-kompetenz had existed for long before the

phrase was first used in 1949 by a French tribunal. Chronologically, the first

58 For example, the PCIJ had appellate jurisdiction from decisions of mixed arbitral tribunals pursuant to theAgreements Relating to the Obligations Resulting from the Treaty of Trianon, Agreement II for the Settlement ofQuestions Relating to the Agrarian Reforms and the Mixed Arbitral Tribunals, 1930: appeal from the Hungaro/Czechoslovak Mixed Arbitral Tribunal: Peter Pazmany University (Peter Pazmany University v Czechoslovakia),PCIJ Rep Series A/B No 61 (1933), 7 ILR 490; Appeals from the Hungaro/Yugoslav Mixed Arbitral Tribunal:The Pajzs, Csaky, Esterhazy case (Hungary v Yugoslavia), Preliminary Objections, PCIJ Rep Series A/N, Nos 65and 66 (1936).

59 E Gaillard and J Savage, Fouchard, Gaillard and Goldman on International Commercial Arbitration (KluwerLaw International, The Hague 1999) 396–7, para 651. The authors also note that the origin of the phrase‘kompetenz-kompetenz’ is unclear, and legal doctrine has generally referred to the ‘well-known principle ofkompetenz-kompetenz’. The authors suggest avoiding the German expression in favour of ‘competence-competence’ as they see in the use of the German phrase two paradoxes, for they explain that

German legal terminology lends a meaning to the expression which differs substantially from that which theexpression is intended to convey when used in international arbitration. If one were to follow the traditionalmeaning of the expression in Germany, ‘kompetenz-kompetenz’ would imply that the arbitrators are empoweredto make a final ruling as to their jurisdiction, with no subsequent review of the decision by any Court.Understood in such a way, the concept is rejected in Germany, just as it is elsewhere. From a substantiveviewpoint, the paradox is all the more marked for the fact that in Germany the question of whether the courtsshould refuse to examine the jurisdiction of an arbitral tribunal until such time as the arbitrators have beenable to rule on the issue themselves (the negative effect of the ‘competence-competence’ principle), has neverbeen accepted [. . .].60 The ICJ has never used the French phrase ‘competence de la competence’, or its German version ‘kompetenz-

kompetenz’ to refer to its power to determine its own jurisdiction. However, many of the judges, in theirdissenting and separate opinions, have used the phrase. See, for instance: Fisheries Jurisdiction (UK v Iceland)[1973] ICJ Rep 3, Separate Opinion of Judge Sir Gerald Fitzmaurice; Case Concerning Arbitral Award of July 31,1989 [1991] ICJ Rep 53, Separate Opinion of Judge Shahabuddeen, 106, 108; Case Concerning Questions ofInterpretation and Application of 1971 Montreal Convention (Libya v UK) [1992] ICJ Rep 3, Dissenting Opinion ofJudge Ajibola, 90.

61 F Liszt, Das Volkerrecht (Springer, Berlin 1925) 16.


case where the rule that a tribunal has jurisdiction to determine its own

jurisdiction was established seems to have been the Betsey case between the

United States and the United Kingdom in 1797.62 The case related to the

capture of the Betsey, a ship belonging to American nationals, by a British

privateer; it was decided by a Commission established pursuant to the Jay

Treaty.63 Before the Commission, the British Agent presented a number of

grounds of defence, one of which related to the Commission’s competence.

He argued that, notwithstanding that in principle decisions of the Commission

were taken by majority vote, decisions regarding the Commission’s own

competence could only be adopted unanimously. The reason was the particular

importance attached to jurisdictional decisions: they are capable of establishing

the limits to the ‘mandate’ received by the Commissioners from the states;

it was inadmissible that the Commission decide in any other way on the limits

freely conferred on it. Moreover, in case of doubt regarding the limits to the

mandate, it was for the states, only, and not for the Commission, to take

a decision. In the event, the Commission by a vote of 3 to 2 (with the two

British Commissioners voting against) ruled in favour of the applicant. In their

opinions, the two British Commissioners did not include the discussion related

to the question of competence.

Commissioner Gore (United States) maintained that the Commission not

only had the power, but also a duty to decide immediately over its competence,

in clear contrast to the suggestion made by the British Commissioners that

the matter be referred back to the parties. Gore gave three reasons: (i) in the

Friendship case,64 the Commission had declared itself incompetent: if it could

declare itself incompetent, it must have the power to declare itself competent;

(ii) if this were not so, the Commissioners of the party against whom the claim

was made would have had the discretionary power to reject all claims they

thought advisable to dismiss; and (iii) requiring the Commission remit the case

to the diplomatic level would defeat the purpose of the treaty, that is, that the

difficulties between the parties be solved judicially.65 In this way, ‘the opinion

that the Commission had the competence to decide that a case does not come

within its jurisdiction’66 appeared in the Commission, although the Commis-

sion or the parties did not commit to the applicability of this principle in the

future.67

62 S Rosenne, The International Court of Justice (Vol II, 4th edn Martinus Nijhoff, Leiden 2006) 812 ff. Forextracts of the decision see, A de la Pradelle and N Politis, Recueil des Arbitrages Internationaux, Vol I, 1798–1855(Les Editions Internationales, Paris 1932) 51 ff.

63 Jay Treaty (Great Britain–United States) (adopted 19 November 1794) 8 Stat 116.64 JB Moore, International Adjudications Modern Series (Vol IV Oxford University Press, New York 1931)

150–1.65 Cf de la Pradelle and Politis (n 62); Moore (n 64) 182 ff.66 de la Pradelle and Politis (n 62) 68.67 IFI Shihata, The Power of the International Court to Determine its own Jurisdiction: Competence de la Competence

(Nijhoff, The Hague 1965) 14.


In the Sally case, decided by the same Commission in 1798, the British

agent objected to the competence of the Commission over the capture of the

Sally. In rejecting the British argument the US Commissioner said, ‘In one

word, the Commission has the competence to determine its own jurisdiction’.68

The question in the Sally was eventually settled diplomatically and not

judicially, supporting the view that the Betsey principle was not to apply

automatically in every case.69 The rule was then repeated in a number of

Mexican arbitrations in the 19th century in which, again, it was very clearly

articulated.70

The principle is often attributed to the Alabama case in 1871, the most

famous arbitration of the century, where there was a vital question about

indirect damages claimed by the United States. The British agents objected to

the submission of indirect damages to the Commission: the American claim

had caused intense debate on the matter in the House of Commons and the

House of Lords and prompted declarations by the Queen herself. A good deal

of behind-the-scenes activity also took place.

When the Commission met again, the arbitrators, aware of the intense

debate that the American request of indirect damages had caused, which could

have led to a breakdown of the very agreement to submit the Alabama claims to

settlement by the Commission, the President, Count Sclopsis, declared to the

parties that without the intention to express or imply any opinion on the part

of the Commission on the correct interpretation of the Treaty, the arbitrators

had concluded that the indirect claims:

do not constitute upon the principles of international law applicable to such cases

good foundation for an award of compensation or computation of damages between

nations, and should upon such principles be wholly excluded from the consideration

of the tribunal in making its award, even if there were no disagreement as to the

competency of the tribunal to decide thereon.71

The parties then informed the Commission that given their declaration, they

would not insist further on the indirect damages claim, and Count Sclopis, on

behalf of the arbitrators issued a declaration excluding from the jurisdiction of

the tribunal the issue of indirect damages.72

The Alabama process thus hardly endorsed the principle. What mattered was

that it began to be incorporated both in bilateral as in multilateral treaties.73

68 de la Pradelle and Politis (n 62) 132.69 Shihata (n 67) 15.70 G Berlia, Jurisprudence des Tribunaux en ce qui concerne leur Competence (1955) 2 Recueil de Cours 120–1.71 Moore (n 6) 623–47.72 Shihata warns against exaggerating the importance of this case in the context of the establishment of the

rule of competence-competence. The declaration of the tribunal had been drafted by the parties, and was meantto be acceptable to both of them: ‘[t]his could hardly be a proper ‘‘judicial’’ decision in the technical sense. It wasnot, at any rate, a decision on jurisdiction. The ‘‘indirect claims’’ were excluded on grounds relating tosubstantive law, and regardless of the question of jurisdiction.’ See Shihata (n 67) 18.

73 See also, inter alia, Inter-American Court of Human Rights: Rules of Procedure, art 27; ECt.HR: art 32,para 2; ITLOS: art 288, para 4.


It was discussed in the Report of Rapporteur Baron Descamps to the First

Hague Conference of 1899, where it was ‘pointed out that not to accept this

principle would be to place the tribunal in the condition of a court incapable of

acting, and obliged to divest itself of jurisdiction every time it might please one

of the parties to maintain, even against evidence, that the tribunal could not

take cognizance of a question’.74

So the rule was incorporated in Article 48 of the 1899 Convention, which

establishes that: ‘The Tribunal is authorized to declare its competence in

interpreting the compromis as well as the other Treaties, which may be invoked

in the case, and in applying the principles of international law.’75

The 1907 Hague Convention then contained the rule in Article 73, which

established that: ‘The Tribunal is authorized to declare its competence in

interpreting the compromis, as well as the other Treaties which may be invoked,

and in applying the principles of law.’76

Modern books on arbitration consider this rule to be an invention of the

20th century. But the truth is that it goes back a long way. And this can be

evidenced from the conduct adopted by states before international tribunals:

for instance, Rosenne notes that the jurisdiction of the PCIJ to decide its own

jurisdiction appears not to have been challenged.77 The PCIJ itself in fact

reaffirmed the principle on various occasions. For instance, in the Interpretation

of the Greco-Turkish Agreement advisory opinion, the Court said that: ‘[a]s a

general rule, any body possessing jurisdictional powers has the right in the first

place to determine the extent of its jurisdiction.’78

In one case, the International Court of Justice’s (ICJs) jurisdiction to decide

on its own jurisdiction was challenged. In Nottebohm, Guatemala argued that

consequent upon the expiry of its optional clause declaration after the filing of

the application, the court no longer had the power to determine its own

jurisdiction pursuant to Article 36(6) of the Statute.79 Indeed, Guatemala

maintained that Article 36(6) applied solely to disputes in which the Court’s

jurisdiction was based on Article 36(2) of the Statute. The Court dismissed the

argument, pointing out that Article 36(6) was drafted in the broadest terms:

Paragraph 6 of Article 36 merely adopted, in respect of the Court, a rule consistently

accepted by general international law in the matter of international arbitration. Since

the Alabama case, it has been generally recognized, following the earlier precedents,

that, in the absence of any agreement to the contrary, an international tribunal has

74 Rosenne (n 62) 814.75 Convention for the Peaceful Resolution of International Disputes, adopted at the First Hague Peace

Conference, The Hague (signed 29 July 1899) (1899) 187 CTS 410.76 Convention for the Pacific Settlement of International Disputes, adopted at the Second Hague Peace

Conference, The Hague (signed 18 October 1907) 205 CTS 234.77 Rosenne (n 62) 815.78 Interpretation of Greco-Turkish Agreement, PCIJ Rep Series B No 16 (1926), 20.79 Letter from the Minister of Foreign Affairs of Guatemala to the President of the International Court of

Justice, paras 20 and 21, Nottebohm case (Liechtenstein v Guatemala) Preliminary Objections Judgment, ICJ Rep1953, 162.


the right to decide as to its own jurisdiction and has the power to interpret for this

purpose the instruments which govern that jurisdiction. This principle was expressly

recognized in Articles 48 and 73 of the Hague Conventions of July 29th, 1899, and

October 18th, 1907, for the Pacific Settlement of International Disputes, to which

Guatemala became a Party. The Rapporteur of the Convention of 1899 had empha-

sized the necessity of this principle, presented by him as being ‘of the very essence of

the arbitral function and one of the inherent requirements for the exercise of this

function’. This principle has been frequently applied and at times expressly stated.

This principle, which is accepted by general international law in the matter of

arbitration, assumes particular force when the international tribunal is no longer an

arbitral tribunal constituted by virtue of a special agreement between the parties for

the purpose of adjudicating on a particular dispute, but is an institution which has

been pre-established by an international instrument defining its jurisdiction and

regulating its operation, and is, in the present case, the principal judicial organ of the

United Nations.80

The rule of kompetenz-kompetenz is a crucial principle of international

dispute settlement, but it has certain limits. It does not entail that arbitrators

can decide just anything: at some level there has to be some form of control.81

But what are the contours of the limitations to the principle and its control?

Struggles still exist in relation to this in the field of arbitration, for example,

in the context of ICSID annulment.82

Exactly how far the principle of kompetenz-kompetenz may be applied

by international tribunals was at the heart of the Resumed Nuclear Tests case

before the ICJ.83 In 1995, New Zealand brought proceedings against France

which arose out of the decision of French President Jacques Chirac to conduct

eight underground nuclear tests in the Pacific.84 New Zealand based its

application in the 1974 decision of the Court in the Nuclear Tests case. New

Zealand argued that it was authorized to bring the dispute to the Court

pursuant to paragraph 63 of the judgment of the Nuclear Tests case, where the

Court held that, in case of a change of circumstances, it would re-examine the

situation:

Once the Court has found that a State has entered into a commitment concerning its

future conduct it is not the Court’s function to contemplate that it will not comply

with it. However, the Court observes that if the basis of this Judgment were to

be affected, the Applicant could request an examination of the situation in accord-

ance with the provisions of the Statute; the denunciation by France, by letter

80 Nottebohm case, ibid 111, 119.81 WM Reisman, Systems of Control in International Adjudication and Arbitration (Duke University Press,

Durham/London 1992) 17–18.82 E Gaillard and Y Banifatemi, Annulment of ICSID Awards (Juris Publishing, Huntington, New York 2004).83 Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of

20 December 1974 in the Nuclear Tests (New Zealand v France) Case [Resumed Nuclear Tests Case], ICJ Rep 1995,288.

84 Resumed Nuclear Tests Case, Application of New Zealand, para 1.


dated 2 January 1974, of the General Act for the Pacific Settlement of International

Disputes, which is relied on as a basis of jurisdiction in the present case, cannot

constitute by itself an obstacle to the presentation of such a request.85

In New Zealand’s argument, a change of circumstances had been brought

about by the resumed nuclear testing—although now in the form of under-

ground nuclear testing—undertaken by France at Mururoa and Fangataufa

Atolls in the South Pacific. France, on its part, argued that the request made

was so manifestly outside the jurisdiction of the Court that they did not

consider the Court to have been seized with the case at all.86 France main-

tained that the Court had not even reached the stage of having competence de

la competence and that the request made by New Zealand was so manifestly

outside its jurisdiction that France might as well not appear before the Court at

all. In the event, the French agents and counsels did appear: but, with one

exception,87 they appeared wearing ordinary clothes.88 Despite France’s vehe-

ment arguments, the Court asserted its competence-competence in relation to

the case. Of course, the Court ruled that it had no jurisdiction, but it did so

in the exercise of its judicial function. The principle of kompetenz-kompetenz

had gone deep into the foundations of the international dispute settlement

system.

B. Relations between competing tribunals

The second example is an example that has become much more common in

recent times, the problem of the relationship between tribunals, in the context

of the so-called ‘proliferation of international courts and tribunals’.89 In a

world in which frequently there is more than one tribunal with jurisdiction over

a dispute, the question is that what should be the obligation of the tribunal

which is seized of one part of the dispute, or even of all of it, when another

tribunal is also seized of the same dispute. This circumstance has been the

subject of a series of decisions, unfortunately, going in opposite directions.

Admittedly, there is less guidance in respect of this problem. Or at least

it appears that there is less guidance because the phenomenon appears to be

85 Nuclear Tests (New Zealand v France), Judgment, ICJ Rep 1974, 457, 477.86 Resumed Nuclear Tests Case, Aide-memoire of France, para 5. See also, statements of Mr De Brichambaut,

Oral Statements, 12 September 1995, CR 1995/20, 40, and Sir Arthur Watts, Oral Statements, 13 September1995, CR 1995/21, 37.

87 Ibid, Sir Arthur Watts QC.88 It is interesting to note that the uncertainty of the basis for the Court’s jurisdiction or the procedure to be

followed lead the Court conduct the proceedings for this case in a very informal and officious manner. In fact,following a letter from the French Ambassador in The Hague, in which he objected to the proceedings on thebasis of the application being manifestly outside the Court’s jurisdiction, the President of the Court invited theParties to an informal meeting, where it was agreed that the Parties were to submit aide-memoires to brieflypresent their position on the question put to the Court. See, Resumed Nuclear Tests Case, President Bedjaoui, OralStatements, 11 September 1995, CR 1995/19, 11.

89 In general, Symposium, ‘The Proliferation of International Courts and Tribunals: Piecing Together thePuzzle’ (1998–99) 31 NYU J Int’l L & Pol 679; Y Shany, The Competing Jurisdictions of International Courts andTribunals (OUP, Oxford 2003).


a modern one. It arose, for example, in the case of SGS v Philippines.90 The

dispute in that case was over the priority of national courts, which were

the subject of exclusive jurisdiction clauses over contract claims, as compared

with international arbitration. The ICSID Tribunal stayed the proceedings with

respect to the contractual claims, since the national court’s exclusive jurisdic-

tion provision had not been waived or overridden by the ICSID convention or

the BIT between Switzerland and the Philippines.91 But the jurisdiction of the

national courts at issue in SGS might well have been the jurisdiction of an ICC

arbitration panel or some other international body.

In the MOX Plant case,92 dealing with the construction and operation of

a mixed oxide fuel plant at Sellafield in the United Kingdom, the problem

of competing jurisdictions arose because of an incipient conflict between

the ECJ and the Arbitral Tribunal sitting under Part XV and Annex VII of

the UN Convention on the Law of the Sea.93 The dispute in question was one

over which UNCLOS, the Convention for the Protection of the Marine

Environment of the North-East Atlantic (OSPAR Convention) and EC Law

applied.94 During the proceedings before the Annex VII Tribunal, it appeared

that one of the relevant questions relating to the jurisdiction of the Annex VII

Tribunal was the commencement by the European Commission of proceedings

against Ireland in the ECJ. The Commission claimed that the dispute over the

MOX Plant fell within the exclusive jurisdiction of the ECJ pursuant to Article

292 of the EC Treaty, for it involved the interpretation and application of

EC law. If so, the Annex VII Tribunal would be without jurisdiction by virtue

of UNCLOS Article 281. The UNCLOS Arbitral Tribunal, thus, stayed

the proceedings pending a decision of the ECJ on its jurisdiction over the

dispute.95

90 ICSID, Case No ARB/02/6, Jurisdiction, SGS Societe Generale de Surveillance S.A. v Republic of thePhilippines (2004).

91 SGS v Philippines, ibid, paras 139–55.92 The MOX Plant dispute was before four different international fora: the Arbitral Tribunal established under

Annex VII and ITLOS (which ruled on provisional measures requested by Ireland pending the constitution of theAnnex VII Tribunal), both under the UNCLOS regime; the ad hoc Arbitral Tribunal established under theOSPAR Convention; and the ECJ.

93 See Case C-459/03, European Commission v Ireland (ECJ, Grand Chamber, Judgment of 30 May 2006) andMOX Plant Case (Ireland v United Kingdom), Order No 3, UN Convention for the Law of the Sea ArbitralTribunal (14 November 2003) 126 ILR, 310–33. For a brief overview of the dispute, C Romano, ‘Commission ofthe European Communities v Ireland, Case C-459/03, Judgment’ (2001) 101 AJIL 171.

94 In particular: the Treaty Establishing the European Community (adopted 25 March 1057) 298 UNTS 11,as amended by the Treaty of Amsterdam (adopted 2 October 1997) 1997 OJ (C 340) 1, as amended by theTreaty of Nice, consolidated version reprinted in 2002 OJ (C 325) 33 [EC Treaty]; and the Treaty Establishingthe European Atomic Energy Community (adopted 25 March 1957) 298 UNTS 167, as amended by Treaty ofNice (adopted 26 February 2001) 2001 OJ (C 80) 1 [EURATOM Treaty]. UNCLOS, as a ‘mixed agreement’,that is, one to which both the EU itself and its Member States are parties, is also considered to be EC Law bythe EU.

95 The ECJ in 2006 decided that Ireland had breached its obligations under EC Law by bringing the disputeagainst the United Kingdom before an international tribunal in disregard of the exclusive jurisdiction of the ECJin matters of community law. Contrast the conduct of the European Commission in this case and in the case ofthe Iron-Rhine Railway Case between the Netherlands and Belgium, involving the rehabilitation of an old railwayline which had not been used since 1991 and that crossed an area subsequently designated as a protected naturalhabitat by the Netherlands. Belgium and the Netherlands submitted their dispute to an ad hoc Arbitral Tribunal,


In both the SGS v Philippines and the MOX Plant cases, completely different

in every other respect, the tribunal which was not, as it were, the chosen

tribunal for the resolution of the key part of the dispute, stayed its hand in the

interests of comity.96 This conduct can be contrasted, for example, with that

of the OSPAR Convention Arbitral Tribunal in the MOX Plant case and the

two BIT tribunals hearing the same dispute—albeit between slightly different

parties, the majority shareholder in one case and the holding company in the

other—in Lauder/CME v Czech Republic.

The MOX Plant case was also brought by Ireland before an arbitral

Tribunal under the 1992 OSPAR Convention. The Tribunal, which pursuant

to Article 32(5)(a) must decide in accordance with ‘rules of international law,

and, in particular those of the [OSPAR] Convention’—presumably including

the EC Treaty—considered that the Convention ‘contains a particular and self-

contained dispute resolution mechanism’.97 In consequence, the Tribunal

could base its decision on the OSPAR Convention only, without taking into

account any other relevant sources of international law.98

In CME v Czech Republic and Lauder v Czech Republic,99 involving govern-

mental interference in the business of CNTS, a Czech wholly owned subsidiary

of CME, and the exclusive provider of broadcasting services for the first private

Czech TV channel, both BIT Tribunals seized of the dispute at similar times

raced to issue the competing awards. The awards eventually issued by the

Tribunals were completely inconsistent, one of them exonerating the Czech

Republic and the other holding it liable for $250 million, for the same conduct

and in respect of the same investment.100

5. Conclusions

These examples reveal the processes through which international law expands,

that is, through processes of accumulation and accretion, rather than of

displacement, as domestic legal systems commonly develop. It is not infrequent

which, in deciding the case, interpreted European Community Law in order to determine that EC Law was notapplicable to the case and that the States Parties to the dispute were therefore not subjected to the exclusivejurisdiction of the ECJ. The European Commission did not bring proceedings for breach of art 292 of the ECTreaty against either party, despite the fact that, in order to determine that EC law was not applicable, theArbitral Tribunal interpreted EC Law—a matter falling within the exclusive jurisdiction of the ECJ.

96 SGS v Philippines (n 90) para 177(c); MOX Plant Case (n 93) Order No 3.97 Dispute Concerning Access to Information under Article 9 of the OSPAR Convention (Ireland v UK), Final

Award of 2 July 2003, para 143.98 For the OSPAR Tribunal, there existed an ‘OSPAR dispute’, that is, a separate and different dispute under

the OSPAR Convention: Y Shany, ‘The First MOX Plant Award: The Need to Harmonize CompetingEnvironmental Regimes and Dispute Settlement Procedures’ (2004) 17 Leiden JIL 815, 825.

99 Lauder v Czech Republic (US–Czech Republic BIT), UNCITRAL, Final Award, 3 September 2001; andCME Czech Republic BV v Czech Republic (Netherlands–Czech Republic BIT), UNCITRAL, Partial Award, 13September 2001 and Final Award, 14 March 2003.

100 The Tribunal in Lauder considered that the conduct of the Czech Republic was not in breach of itsobligations under the BIT; whereas the Tribunal in CME held that the Czech Republic had breached the BIT.


that states are bound by multiple obligations contained in co-existing

international instruments, so that the same conduct of a state may be sus-

ceptible of breaching more than one obligation at a time. Multiple obligations

regulating the same conduct are perfectly capable of co-existence, with

displacement occurring in cases of inconsistency, displacement which will be

governed by the principles of lex specialis and lex posterior.

Equally states may be subjected, at the same time, to multiple dispute

settlement mechanisms with respect to the same conduct, all of which are

susceptible of co-existence lacking any manifest inconsistency. Jurisdictional

clauses, just like substantive obligations, can accumulate and co-exist. This was

the issue that the ITLOS and Annex VII Tribunal had to deal with in Southern

Bluefin Tuna, where Japan’s experimental fishing programmes were allegedly in

breach of both the 1993 Convention for the Conservation of Southern Bluefin

Tuna and UNCLOS.101

There is thus a real conflict in the context of different tribunals acting

consistently with one another and maintaining the fabric of the law, a problem

which is arising with increasing frequency. And yet when going back to the

older tribunals, their case law evidences that this problem has already occurred

in the past. The Chorzow Factory case, the most frequently cited decision of the

PCIJ, involved precisely that problem as to the potential dispute between the

jurisdiction of the Upper Silesian Tribunal and the PCIJ.102 In Electricity

Company of Sofia and Bulgaria, the PCIJ dealt with the existence of multiple

dispute resolution clauses.103 And in SGS, the Tribunal was able to cite a

decision of the United States–Venezuela Mixed Commission in the Woodruff

case decided in 1903, dealing with the competing jurisdictions of national and

international courts.104

‘There are more things in heaven and earth, Horatio, than are dreamt of

in your philosophy’,105 and some of them may be found in the old law books.

In stressing some of the continuities of some of our international dispute

arrangements, I do not want to deny the importance of the changes taking

place, both in themselves and in what they may portend for what is still one

system of international law.

Talk of proliferation tends to miss the point, that international law has

always been diverse and has always had the capacity to fragment. The Treaty

of Westphalia was a proliferation of treaties, it was a proliferation of

bilateral treaties; it gave rise to no single institution; and that has been true

101 Southern Bluefin Tuna Cases (Provisional Measures) (New Zealand v Japan; Australia v Japan), ITLOS, Orderof 27 August 1999, 38 ILM 1624; Southern Bluefin Tuna Cases (Jurisdiction and Admissibility) (New Zealand vJapan; Australia v Japan), Annex VII Arbitral Tribunal, Award, 4 August 2000, 39 ILM 1359.

102 Case Concerning the Factory at Chorzow (Claim for Indemnity) (Germany v Poland), Series A No 9 (adopted26 July 1927) 3.

103 Electricity Company of Sofia and Bulgaria, Judgment, PCIJ Rep Series A/B No 77, 4 April 1939, 64.104 Woodruff Case (US v Venezuela) (1903) 9 RIAA 213, 222, cited in SGS v Philippines (n 90) para 150.105 W Shakespeare, Hamlet. Act I, sc 5, l 166.


ever since.106 International law proceeds by accretion and by the casting of a

historical memory in new forms, sometimes forgetting its origins. Moreover,

in international law it is custom, and not the treaty-based institution, which

provides the matrix of the set of understandings that underpins what we do.

Nor, in stressing the continuing dominance of underlying inter-state

arrangements and interactions do I want to suggest—returning to the cast of

The Tempest—that the Caliban of the inter-state system has entirely cast out the

Ariel of the rule of law.107 After all it is the rule of law which must be the

ultimate aim of a regular system of dispute settlement to institute, at least

under the agreements covered by that system. And progress is possible.

What I do say are two things: first, we must avoid thinking that all our

bright ideas are new ideas, for sometimes their roots are to be found deep in

the historical experience of international law; second, we must try to achieve

a historical understanding of our own activities, for only in such a way we will

be able to fully comprehend them—and, it may be, advance beyond them.

That the new Geneva Course, with its comprehensive approach, aims for

a historical understanding I take for granted. It is one guarantee against over-

reaching in our dispute settlement arrangements—arrangements still, in some

respects, importantly insecure. So, congratulations on the launch of this

programme and best wishes to all who study in it.

106 J Crawford, ‘Multilateral Rights and Obligations in International Law’ (2006) 319 Recueil de Cours 325,349–50.

107 E Pound, ‘‘EP Ode pour selection de son sepulchre, III’’ in ‘Hugh Selwyn Mauberley. Part I’ (reprinted,Whitefish, Montana: Kessinger Publishing, 2007).


crawford - continuity and discontinuity in int'l dispute settlement

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