The proliferation of international courts and tribunals has given rise to several new issues affecting the administration of international justice. This book makes a significant contribution to understanding the impact of this proliferation by addressing one important question: namely, whether international courts and tribunals are increasingly adopting common approaches to issues of procedure and remedies. This book's central argument is that there is an increasing commonality in the practice of international courts to the application of rules concerning these issues, and that this represents the emergence of a common law of international adjudication. The book examines this question by considering several key issues relating to procedure and remedies, and analyzes relevant international jurisprudence to demonstrate that there is substantial commonality. It goes on to look at why international courts are increasingly adopting common approaches to such questions, and why a greater degree of commonality may be found with respect to some issues rather than others. In doing so, light is shed on the methods adopted by international courts to engage in the cross-fertilization of legal principles. The emergence of a common law of international adjudication has important practical and theoretical implications, as it suggests that international courts can also devise common approaches to the challenges that they face in the age of proliferation. It also suggests that international courts do not generally operate as self-contained regimes, but rather that they regard themselves as forming part of a community of international courts, therefore having positive implications for the development of the international legal system.

Table of Cases	p. xxi
Table of International Instruments	p. xli
List of Abbreviations	p. li
Introduction	p. 1
Introduction to the Research Theme	p. 1
Definitions and Scope	p. 4
On the Term 'Common Law of International Adjudication'	p. 4
On 'Procedure' and 'Remedies'	p. 6
'Procedure' in International Adjudication	p. 7
'Remedies' in International Adjudication	p. 9
Scope of the Book	p. 9
Aspects of International Adjudication	p. 9
Coverage of International Courts and Tribunals	p. 10
Outline of the Book	p. 12
The Emergence of a Common Law of International Adjudication against a Background of Proliferation and Fragmentation	p. 15
Introduction	p. 15
Proliferation of International Courts and Tribunals	p. 17
Reasons for Proliferation	p. 22
Proliferation and Fragmentation	p. 23
International Law as an '"Anarchical" Domain'?	p. 23
Proliferation as a Cause of Jurisdictional Competition and Fragmentation	p. 25
Overlapping Jurisdictions of International Courts	p. 28
Doctrinal Inconsistencies in the Jurisprudence of International Courts	p. 29
The International Law Commission's Consideration of Fragmentation	p. 32
Conclusion	p. 33
Methods Used by International Courts and Tribunals to Engage in Cross-Fertilization	p. 35
Introduction	p. 36
Sources of Law relating to Procedure and Remedies	p. 36
Constitutive Instruments of International Courts	p. 37
Rules of Procedure of International Courts	p. 38
Sources of Law when International Courts are faced with Lacunae	p. 40
Interpretation by International Courts of their Constitutive Instruments	p. 41
Custom, International Judicial Practice, and General Principles of Law	p. 53
Inherent Powers	p. 55
Inherent Powers in International Adjudication	p. 55
The Concept of 'Inherent Powers'	p. 55
Arguments against the Exercise of Inherent Powers by International Courts	p. 58
The Exercise of Inherent Powers depends on Unlimited Compulsory Jurisdiction	p. 58
International Courts can only exercise Expressly Conferred Powers	p. 59
Inherent Powers in the Practice of International Courts	p. 60
Source of Inherent Powers	p. 66
Inherent Powers are derived from General Principles of Law	p. 67
Inherent Powers are Implied Powers	p. 69
Inherent Powers are Derived from the Identity of Courts as Judicial Bodies	p. 70
Inherent Powers are Necessary to Ensure the Performance of the Functions of International Courts	p. 71
Extent of the Inherent Powers of International Courts	p. 72
Functions of International Adjudication	p. 72
Limitations on the Exercise of Inherent Powers	p. 78
Conclusion	p. 81
Aspects of Evidence in International Adjudication	p. 83
Introduction	p. 83
Sources of Rules of Evidence in International Law	p. 85
Constitutive Instruments	p. 86
Other Sources of Evidentiary Rules in International Adjudication	p. 88
Rules of Procedure	p. 88
General Principles of Law	p. 89
Inherent Powers	p. 90
Evidential Issues in International Adjudication	p. 90
Admission of Evidence	p. 90
Burden of Proof	p. 92
Standard of Proof	p. 97
Conclusion	p. 101
Powers of International Courts Regarding Evidence	p. 102
Judicial Notice of Facts	p. 102
Power to Order the Production of Evidence	p. 104
Power to Make Site Visits	p. 111
Power to Order Expert Reports	p. 112
Conclusion	p. 118
Power of International Courts to Grant Provisional Measures	p. 119
Introduction	p. 119
Purpose of Provisional Measures in International Adjudication	p. 121
Source of the Power to Grant Provisional Measures	p. 123
Constitutive Instruments of International Courts	p. 123
Rules of Procedure of International Courts	p. 125
Power to Grant Provisional Measures as a General Principle of Law	p. 126
Power to Grant Provisional Measures as an Inherent Power	p. 127
The Power is necessary to carry out the Functions of International Courts	p. 128
Practice of International Courts supporting the Existence of the Power	p. 130
Limitations on the Power to Grant Provisional Measures	p. 133
Common Features in the Exercise of the Power	p. 135
Question of Jurisdiction over the Merits	p. 136
Circumstances Relevant to the Granting of Provisional Measures	p. 139
Prevention of Irreparable Prejudice to the Rights of the Parties	p. 139
Urgency	p. 142
Other Factors	p. 145
Binding Quality of Provisional Measures	p. 146
Power to Grant Provisional Measures Ultra Petita or Proprio Motu	p. 150
Conclusion	p. 151
Power of International Courts to Interpret and Revise Judgments and Awards	p. 152
Introduction	p. 153
Post-Adjudication Role of International Courts and Tribunals	p. 153
Finality of Adjudication	p. 153
Limits to the Principle of Finality	p. 156
Source of the Powers of Interpretation and Revision	p. 158
Constitutive Instruments of International Courts	p. 158
Power of Interpretation	p. 158
Power of Revision	p. 159
Rules of Procedure of International Courts	p. 160
Power of Interpretation	p. 160
Power of Revision	p. 161
Powers of Interpretation and Revision as Inherent Powers	p. 161
Possible Objections to the Powers as Inherent Powers	p. 161
Practice of International Courts supporting the Existence of the Powers	p. 165
Power of Interpretation	p. 165
Power of Revision	p. 166
Exercise of Post-Adjudication Powers in WTO Dispute Settlement	p. 171
Conclusion	p. 173
Issues relevant to the Exercise of the Powers of Interpretation and Revision	p. 173
Jurisdiction of the International Court hearing the Request	p. 175
Composition of the International Court hearing the Request	p. 176
Scope of the Powers	p. 177
Conditions for the Exercise of the Powers	p. 178
Power of Interpretation	p. 178
Power of Revision	p. 179
Conclusion	p. 183
Remedies in International Adjudication	p. 185
Introduction	p. 185
Source of the Power to Award Remedies	p. 187
'Reparation' as the Remedy in International Law	p. 190
Generally	p. 190
The Three Forms of Reparation	p. 190
Agreement and Disagreement in the Law of Remedies	p. 192
Forms of Reparation in Particular Disputes	p. 195
Restitution	p. 195
Compensation	p. 198
Compensation for Damage to the State	p. 199
Compensation for Injury to Private Property	p. 200
Compensation for Personal Injury	p. 206
Declaratory Judgments	p. 208
Mandatory or Consequential Orders	p. 209
An available remedy in International Adjudication?	p. 209
Practice of International Courts making such Orders	p. 212
Remedies in WTO Dispute Settlement	p. 216
WTO Remedies as Lex Specialis	p. 217
Influence of Reparation in WTO Dispute Settlement	p. 220
Conclusion	p. 223
A Common Law of International Adjudication: Reasons and Limitations	p. 225
Introduction	p. 225
Reasons for the Emerging Common Law of International Adjudication	p. 226
Limitations to the Development of a Common Law of International Adjudication	p. 234
Conclusion	p. 237
Implications of a Common Law of International Adjudication	p. 238
Introduction	p. 238
Practical Implications	p. 239
Generally	p. 239
Practical Implications with respect to Problems posed by Proliferation	p. 240
Power of Summary Dismissal	p. 242
Power to Suspend Proceedings	p. 250
Power to Enjoin Parties from pursuing Parallel Proceedings	p. 252
Conclusion	p. 255
Theoretical Implications	p. 255
Conclusion	p. 258
Conclusion	p. 260
Bibliography	p. 263
Index	p. 295
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A Common Law of International Adjudication

9780199206506

0199206503

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