Trans-frontier Environmental Damage in International Jurisprudence

The article is devoted to tendencies of development of modern international law and the international justice authorities. Globalization of the modern world and the interaction of States at all levels: political, economic, commercial, educational, and others - determines the relevance of the article. The interaction leads to conflicts and disputes between States, between States, legal and physical persons, between legal and physical persons from different countries, they require resolution at the international level. The increase of number of international contacts is followed by the increase of conflicts between the parties and, respectively, the number of international judicial processes. International law and the international judicial bodies play a special role in solving the problems of the peaceful settlement of international conflicts. Certain trends characterize the current stage of development of international law. These are diversification and fragmentation resulting in the proliferation of international judicial bodies. Strengthening the rule of law in international relations is the main positive point of the main trends in international law. The sphere of international relations, which are not covered by international law, are reduced. The main negative aspect of modern tendencies in the field of international justice is: the possibility of multiple interpretations of international law, especially the regional courts, as well as increasing the risk of issuing conflicting, sometimes inconsistent, decisions of different international judicial bodies. The possibility of finding a forum shopping is a negative consequence as well. This creates a legal conflict, delays, problems with recognition of international judicial bodies, their jurisdiction, for failure to execute court decisions. This leads to a reduction of efficiency of activity of international courts in General. The main task of modern international law is to overcome or mitigate conflicts of jurisdictions of the various international judicial bodies, as well as to set the stable matches between international courts and the enforceability of their decisions. Studies of the leading Russian and foreign lawyers play an important role for overcoming contradictions in the sphere of international law and the activities of international judicial bodies. Scientists note in their works that the modern trends of development (diversification, fragmentation, proliferation, imperativity) is an objective phenomena, they are caused by the development of pluralism of the modern world.

Does a truncated arbitral tribunal have the authority to act and to render a valid award? … A decade ago, I surveyed the problem as it had developed over the last two centuries; and as it had recently intensified in the proceedings of the Iran–United States Claims Tribunal. I concluded that: Withdrawal of an arbitrator from an international arbitral tribunal which is not authorized or approved by the tribunal is a wrong under customary international law and the general principles of law recognized and applied in the practice of international arbitration. It will generally constitute a violation of the treaty or contract constituting the tribunal, if not in terms then because the intention of the parties cannot be deemed to have authorized such withdrawal. Such a wrongful withdrawal may not, as a matter of international legal principle, debar an international arbitral tribunal from proceeding and rendering a valid award. While the precedents are not uniform, and the commentators are divided, the weight of international authority, to which the International Court of Justice has given its support, clearly favours the authority of an international arbitral tribunal from which an arbitrator has withdrawn to proceed and to render a valid award. In the last ten years, the question has received more than one answer. The Iran–United States Claims Tribunal has continued to hold that a truncated tribunal may render a valid award. However, in the case of Ivan Milutinovic PIM v. Deutsche Babcock AG , the holdings conflict.

This chapter explores the interplay between the International Criminal Court (ICC) and other international judicial bodies, notably the International Court of Justice (ICJ), through the lens of the foundational Nuremberg Principles. Originating from the Nuremberg trial after World War II, these principles presented revolutionary concepts under international law such as individual criminal responsibility, irrelevance of official capacity, and the precedence of international over national law. The analysis examines how these principles were adopted, adapted, or reinterpreted across the statutes and jurisprudence of subsequent international tribunals, including the ad hoc tribunals for Yugoslavia (ICTY) and Rwanda (ICTR), and also the Rome Statute, which established the ICC in 1998. The chapter marks out two key aspects of interplay: a developmental aspect, tracing the historical and legal evolution of the Nuremberg principles into contemporary instruments of international criminal justice; and an actual asspect, analysing the formal and practical application (or omission) of these principles in case law, particularly within ICC proceedings and ICJ advisory opinions. While the ICC does not formally treat the Nuremberg principles as binding legal sources under Article 21 of the Rome Statute, their normative influence remains evident. Special attention is paid to legal concepts such as immunities, complementarity, control over crimes, and fair trial rights, showing how these have been shaped by precedents across tribunals. The chapter also explores how the ICJ, despite focusing on state responsibility, has indirectly influenced ICC interpretations of international law through decisions like the Arrest Warrant and Genocide cases. At last, the chapter argues that the Nuremberg legacy continues to underpin the global criminal justice architecture, shaping the aim of upholding accountability, justice, and the rule of law. The dynamic relationship between courts underscores the interconnectedness of international efforts to prevent impunity and ensure human rights protections.

Many international judicial bodies have prescribed the procedures allowing NGOs to participate in the proceedings generally as non-parties as amicus curiae, expert or witness for the purpose of the good administration of justice.These possibilities are well developed in judicial bodies where the nature of proceedings concerns the issues that international law recognizes as the collective interests of the international community.In the International Court of Justice, on the contrary, NGOs do not have such possibility to make contributions as they have done in other international judicial bodies.The development of the elaboration of the texts on the Court proceedings and the restrictive interpretation of these texts reflect the restrictive approach of the Court towards NGOs' participation.The Court should offer the scope to access NGOs since they have legitimate right to represent the views of international civil society in an international democratic process and can contribute to assist the Court to protect the collective interest of the international community.

It has been posited that the international arbitration process carries with it not only fact-finding and lawmaking functions but also a governance function insofar as “arbitrators … can and do engage in autonomous normative action while still adhering to the rule of law.” This contribution explores the role and ambit of the exercise of discretion by international arbitration tribunals and its interplay with the tribunals’ governance function, as arbitrators must consider “the impact of their rulings on states, persons or entities not directly represented in the case before them.” It questions whether the use of discretion is suited to the governance role of arbitral tribunals and serves, rather than compromises, the effective exercise of that role. It asks what measures ought to be considered to make arbitrators better prepared for the exercise of their governance function.

The choice-of-law rules applied by arbitral tribunals differ in several respects from the approaches followed by domestic courts. Those differences arise in connection with three distinct choice-of-law problems: (i) the determination of the law applicable absent a choice of law by the parties, (ii) the interpretation and supplementation of the law chosen by the parties, and (iii) the application of mandatory norms. As far as item (i) is concerned, arbitration-specific choice-of-law rules typically grant arbitrators more freedom than ordinary conflict-of-laws norms. In relation to international sale of goods transactions, for example, Article 4(1)(b) of the Rome I Regulation on the law applicable to contractual obligations provides for the application of the law of the country where the seller has his habitual residence (unless the contract is more closely connected with another country), while Article 28(2) of the UNCITRAL Model Law on International Commercial Arbitration allows arbitrators to determine the applicable law on the basis of the conflict rule of their choosing. Under the arbitration laws of several countries, arbitrators are even entitled to apply non-national law such as general principles of law, the UNIDROIT Principles of International Commercial Contracts, or principles common to the parties’ legal systems. With regard to item (ii), arbitral tribunals may similarly resort to non-national legal sources when interpreting, or filling the gaps of, the applicable domestic law. This was expressly contemplated by the drafters of the aforementioned UNIDROIT Principles according to whom the Principles “may be used to interpret or supplement domestic law” (see Preamble). As to item (iii), the conflict rules of codifications such as the Rome I Regulation lay down specific rules regarding the application of the mandatory norms of both the forum and other relevant jurisdictions. The former cannot be transposed to international arbitration due to the absence of a “forum” of international arbitral tribunals. The latter, while not directly applicable, may be taken into account by arbitral tribunals. However, it is more likely that arbitral tribunals will view the question of the application of specific mandatory norms from the angle of possible enforcement problems that may result from the non-application of those norms.

International investment law is increasingly becoming an important reference field of international economic law. The chapter examines if, and the extent to which, investment arbitral tribunals sought to meet the need to respect host State’s capacity to regulate in the public interest. Preliminarily, the chapter deals with the notion of regulation in the public service sector, by exploring its categorization as a right and as a duty of States. Subsequently, it assesses whether the regulation of public services is a matter falling within international investment law’s scope of application and whether all regulatory measures used to govern public services’ provision may fall under international arbitral tribunals’ scrutiny. It then analyses the controversial distinction between lawful regulation and regulatory expropriation under international investment law. To this purpose, the chapter takes into consideration the different approaches adopted by arbitral tribunals, in order to evaluate their capacity to meaningfully contribute to find a balance between investors’ and States’ competing interests with regard to public services. Lastly, the analysis turns to the increasingly important role played by the fair and equitable treatment standard in arbitral practice, also with regard to public services’ cases. In particular, this part of the chapter looks at the difficulties in finding an equilibrium between stability and regulatory change in the public services’ sector, by examining the impact of the legitimate expectations doctrine upon host States’ regulatory autonomy.KeywordsArgentine RepublicPublic ServiceRegulatory MeasureInternational InvestmentArbitral TribunalThese keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

It is indicated that ensuring human rights and freedoms in conditions of armed conflicts is one of the most pressing issues of modern international law and national legal systems of many states. The article examines the system of participants in international criminal proceedings and their functional role in ensuring international justice in the context of modern challenges, in particular the Russian- Ukrainian war. The author analyzes the evolution of the subject composition of international criminal courts from the Nuremberg Tribunal to the modern International Criminal Court, emphasizing the relevance of the study in the context of full-scale armed aggression of the Russian Federation against Ukraine. The study reveals the specifics of international criminal proceedings as the activities of specialized subjects who participate in the process, regulated by the norms of international law, in accordance with the requirements of international criminal law. The author analyzes the founding documents of international criminal jurisdiction bodies, in particular the Rome Statute of the ICC, revealing the lack of unified terminology regarding the subjects of criminal proceedings. Special attention is paid to the classification of participants in international criminal proceedings according to their procedural status and functional purpose. The five-member classification of T. Syroid is considered, which includes bodies and officials with authority, parties to the proceedings, persons who facilitate the administration of justice, states as subjects of the proceedings, and subjects of legal aid. The author emphasizes the complex nature of this system, which combines traditional participants in the criminal proceedings and specific international legal subjects. The study reveals that the subjects of international criminal proceedings are characterized by various grounds for involvement in procedural relations - from the performance of official duties to the exercise of their own rights and interests. The author justifies the need to rethink the role of various categories of participants in the judicial process in the context of ensuring effective cooperation between states and international judicial bodies, especially during the investigation of mass crimes in modern armed conflicts.

The development of international economic relations has led to the emergence of independent dispute resolution mechanisms such as the Dispute Settlement Body of the World Trade Organization (DSB WTO) and international investment arbitration. However, in recent years there has been an increasing number of disputes with similar factual circumstances that were referred simultaneously to the DSB WTO and to international investment arbitration. As a result, procedural and substantive overlaps between the two fora have emerged. Whether this trend has a positive or negative effect is still an open question. On the one hand, the fact that the resolution of an international dispute may be considered by several international judicial bodies gives a disputing party the possibility of choosing a specialized forum, which makes the final outcome more efficient. On the other hand, the existence of several dispute resolution bodies that consider disputes arising from similar factual backgrounds further exacerbates the fragmentation of international economic law. This article is devoted to an analysis of jurisdictional aspects of the DSB WTO and international investment arbitration in the context of possible overlaps in both their procedural and substantive parts. The analysis reveals that the doctrines of res judicata and systematic interpretation do not provide effective remedies to prevent and overcome the overlaps between the DSB WTO and international investment arbitration. The authors believe that the problem of overlapping jurisdictions of the DSB WTO and international investment arbitration can be solved if a prior decision by one forum is evaluated by the other forum as factual evidence in the dispute and if an interpretation made by one forum is taken into account by the other forum in its decision-making.

Inter-State Disputes in International Trade: Normative and Jurisdictional Conflicts Between the World Trade Organization and Regional Trade Agreements

Counsel are regulated the world over in their dealings with a court of law through the enforcement of ethical duties that are owed by them. With the increased prevalence of arbitration in resolving disputes internationally, the question then arises: how are counsel kept in check when appearing before an arbitral tribunal? The issues involved are magnified when one considers the question in the context of international arbitral tribunals. This paper considers these issues by analysing them in three parts. First, is ethical regulation necessary in international arbitration? Second, does an arbitral tribunal have jurisdiction to consider and enforce ethical obligations owed to it by counsel? Third, what ethical obligations should be applied to counsel?

The validity of historic or ancient title to territory has been tested in numerous international judicial proceedings, both in the International Court of Justice and in international arbitration. Historic title usually originates in ancient normative systems, including tributary, feudal, sultanate, and Islamic systems that predate the Western international legal system. Nevertheless, the rules against which historic title has been tested in international judicial proceedings generally require that the original titleholder be a state or a central authority that exercised territorial sovereignty over a defined space to the exclusion of other sovereign powers. The rules that apply specifically to these ancient normative systems, where allegiance to authority was personal or religious rather than territorial, have been seen as irrelevant compared to the more contemporary determinations of historic title. The only exceptions have been the French medieval customary normfrankalmoign, which the international arbitral tribunal in theMinquiers and Ecrehoscase cited as evidence that the English king exercised territorial sovereignty over the disputed islands, and the personal allegiance of theOrang Lautto the Sultan of Johore, coupled with the recognition accorded to the latter by the great maritime powers, which the International Court of Justice inMalaysiav.Singaporefound sufficient to prove the historic title of Malaysia over Pedra Branca/Pulau Batu Puteh and Middle Rocks. The principles by which historic title were adjudicated in these cases appear to be the same principles by which the Western powers dealt with the claims of the People's Republic of China and Vietnam to the Paracel Islands and the Spratly Islands, not only during the colonial period but also after the Second World War. This analysis suggests how the International Court of Justice or an international arbitral tribunal might, if given the opportunity, resolve these South China Sea disputes. Readers might also find this analysis to be particularly relevant to other disputes involving historic title, including the East China Sea disputes, although the focus of this article is on the South China Sea disputes. States and other commentators are left to rely on their own preferences and allegiances in reaching their own normative conclusions using the novel analysis provided by this article.

Decisions ex aequo et bono by International Courts and Arbitral Tribunals

This chapter is the first ever comprehensive examination of how fact and law relate to each other in international law. After the critique of doctrinal approaches, the analysis examines how facts aspire producing legal regulation and to what extent they can do so. The analysis covers the relationship between title and effectivites in the law of territory, and the impact of treaties on factual situation. It also examines how rules can make facts relevant, at the example of certain rights under the European Convention on Human Rights and nationality of claims. Separate attention is paid to the notion of ‘effective control’ that has been frequently used in jurisprudence both of ICJ and European Court of Human Rights. Finally, the systemic relevance of facts in the law of treaties and law of State responsibility is examined. The chapter covers the jurisprudence of all major international tribunals, notably ICJ, arbitral tribunals, ECtHR, and WTO dispute settlement bodies.

The first question that may face an international arbitral tribunal after it has been constituted is whether it has jurisdiction ( competence ) to determine its own jurisdiction ( competence ), i.e., whether it has power to decide whether it may proceed with the judicial settlement of the particular case ( la competence de la competence ). Arbitral tribunals have exercised the competence de la competence, where this competence has not been questioned. The question whether a tribunal has la competence de la competence is not a question that generally must be decided if the tribunal is to proceed with the case. Indeed, in many cases tribunals have simply decided on their jurisdiction. The ICSID Convention provides in Article 51 for revision of an arbitral award in limited circumstances and in Article 52 for annulment of an award where the tribunal has manifestly exceeded its powers. Keywords:ICSID Convention; international arbitral tribunal; la competence de la competence