Abstract In the 2022 International Centre for Settlement of Investment Disputes (ICSID) Arbitration Rules, Rule 27 states not just that ‘[t]he Tribunal shall make the orders and decisions required for the conduct of the proceedings’, as in its previous version, but also—and for the first time—that ‘[o]rders and decisions … shall indicate the reasons upon which they are made …’ (emphasis added). The present article aims to investigate possible consequences stemming from the introduction of Rule 27 in ICSID arbitration and identify which possible changes would be brought about in the proceedings before the International Court of Justice (ICJ) by introducing an analogous provision in the Rules of the Court. Quite paradoxically, the analysis demonstrates that procedural orders rendered by tribunals established under the auspices of ICSID, which pronounce upon essentially ‘private’ disputes, already meet a relatively high standard of transparency. In contrast, some procedural orders rendered by the ICJ, seen as the public forum of the international community, would greatly benefit from increased transparency, albeit with some exceptions.

Abstract The suspension of pending proceedings is a common feature of international dispute settlement. Although its precise operation varies across different institutions, it is possible to infer some common features that distinguish suspension from similar practices. For its part, the International Court of Justice (ICJ) had never suspended proceedings in any case in its 80-year-old history until late 2024. This article analyses the possible reasons for the lack of ICJ practice in the area, and it examines the alternative avenues employed by the ICJ to achieve the same results as suspension. Against this background, the article argues that a number of questions remain as to the scope and legal effect of suspension on the powers and duties of the litigant parties, third parties, and the ICJ itself.

Abstract The original formulation of the indispensable third-party rule is from the Monetary Gold case, which stipulates that the International Court of Justice (ICJ) would decline to exercise its jurisdiction over a dispute if the legal interests of an absent State form the ‘very subject-matter’ of the dispute. The rule has often been criticized for the uncertainties as to its doctrinal basis and difficulty in determining what the ‘very subject-matter’ of the dispute is. This article discusses an underexplored part of academic debates—that is, what amounts to the ‘very subject-matter’ of a dispute and in so doing seeks to show why the justification for the rule is consent, and the applicable test going forward should be that where the legal interest of an absent State is a prerequisite to be determined before the ICJ can hear the merits, the Court should decline to exercise its jurisdiction.

Abstract Investor–State dispute settlement (ISDS) is the topic of a concerted reform effort by actors in International Investment Law (IIL). The proposals proffered by United Nations Commission on International Trade Law’s Working Group III have centred around rectifying procedural complaints like the inconsistency in arbitral case law. Little attention has been given to more paradigmatic ideas such as abandoning international arbitration altogether. This article argues that the absence of any meaningful consideration for a radical departure from the current status quo is largely the effect of epistemological privilege. I adopt the philosophical framework of Critical Realism to argue that much of the work towards reforming the regime is grounded in empirical epistemologies that do not consider the deeper, more complex issues that affect IIL’s operation. I make this argument through an examination of behavioural economics’ integration into scholarship and the positivist basis of the reform proposal for an advisory centre for international investment law.

Abstract This article examines the ways in which international investment law evolves. It argues that its initial focus on prosperity and security, at the expense of justice and freedom, coupled with the system’s social and political dis-embeddedness, led to its current state of disenchantment. That current state of affairs is not as easily remedied as it seems. Treaty renegotiations and procedural reforms have largely been ineffective in altering the system's actual operation, reflecting a disconnect between our law-in-books perception of it and its law-in-action reality. Society has to some extent lost control over the system, and never really has had. To understand these dynamics, to facilitate meaningful reform, and ultimately to ensure that the regime better aligns with broader societal values, the article emphasizes the need for an approach drawing on complexity theory: a holistic understanding of the complex interdependencies within the system.

Abstract Subsequent practice of international organizations plays an important role in the interpretation of their constituent instruments. Based on Articles 5 and 31(3) of the Vienna Convention on the Law of Treaties (VCLT), when such practices have become established or have been consented to by all States parties, they can be considered authoritative interpretations. The legal basis for considering practices of international organizations in other circumstances, however, is not entirely clear. The International Law Commission proposed that these practices may still be considered in the application of Articles 31 and 32 of the VCLT but left many issues undiscussed. This article argues that it is possible to consider international organizations’ practice in the application of Article 31 if a strong inference about the original intention of States parties can be drawn therefrom. To address difficulties involved in evaluating the probative value of international organizations’ practice, this article borrows a tool from probability theory—likelihood ratio—and shows that, absent a major change of circumstances, international organizations’ earlier practice can be seen as credible evidence of States parties’ original intention and considered in the application of Article 31.

Abstract As the number of corruption allegations in investor–State disputes (ISDS) grows, tribunals must balance their duty to resolve disputes and to render enforceable awards. Given the difficulty of proving corruption, arbitrators increasingly consider red flags to detect it, but still struggle with drawing consequences for corrupt conduct that would serve as an effective deterrent. Our empirical analysis of 92 ISDS cases that involved allegations of corruption reveals that over a quarter of arbitral decisions already utilize a red flags approach, which helps tribunals assess corruption risks and provide circumstantial evidence. This article proposes a novel list of red flags based on the empirical analysis, domestic and international law sources as well as soft law instruments. It then frames a corresponding anti-corruption due diligence mechanism, which can minimize the risks of corruption occurring, bring more predictability to ISDS and disincentivize frivolous allegations of corruption.

Abstract The jurisprudence concerning the continental shelf delimitation beyond 200 nautical miles (nm) over the past decade converged on distinguishing delineation from delimitation, which justifies the appropriateness of the judiciary to delimit the continental shelf beyond 200 nm in the absence of the recommendations issued by the Commission on the Limits of the Continental Shelf (CLCS). Mauritius/Maldives decided by a special chamber of the International Tribunal for the Law of the Sea departs from the established jurisprudence. By applying a ‘significant uncertainty’ standard that puts the relationship between entitlement and delimitation in the centre, Mauritius/Maldives reasons against exercising jurisdiction over the delimitation beyond 200 nm without affirmative recommendations of the CLCS. Mauritius/Maldives reflects judicial restraint in contrast with a more proactive approach prevailing in previous jurisprudence.

Journal Article Banning oil and gas activities under international investment law: a problem of indeterminacy Get access Jean-Michel Marcoux Jean-Michel Marcoux Jean-Michel Marcoux, Assistant Professor, Department of Law and Legal Studies, Carleton University, Canada, email: jeanmichel.marcoux@carleton.ca https://orcid.org/0000-0003-0494-1441 Search for other works by this author on: Oxford Academic Google Scholar Journal of International Dispute Settlement, idae005, https://doi.org/10.1093/jnlids/idae005 Published: 28 February 2024