ADR MT Reviewer

7/29/2019 ADR MT Reviewer

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I. CONFLICT is the process by which parties with differing wishes each believe that the other will act

or is acting against them, and engage in behavior seeking to damage the other party. While conflict is

often seen as negative, some types of conflict, in certain settings, can have a positive outcome.

CONFLICT VS. DISPUTE

Conflict as the fundamental disagreement between two parties, of which a dispute is one

possible outcome. (Conciliation, conflict avoidance, or capitulation are other outcomes.) Conflict is a state, rather than a process.

People who have opposing interests, values, or needs are in a state of conflict, which may belatent (meaning not acted upon) or manifest, in which case it is brought forward in the form of a

dispute or disputing process.

In this sense, "a conflict can exist without a dispute, but a dispute cannot exist without a

conflict."

CONFLICT RESOLUTION TECHNIQUES

1. AVOIDANCE

- Characterized by inaction and passivity, avoidance conflict style is typically used when an individualhas reduced concern for their own outcomes as well as the outcomes of others.

- During conflict, these avoiders adopt a wait and see attitude, often allowing conflict to phase out onits own without any personal involvement.

- Unfortunately, by neglecting to address high-conflict situations, avoiders risk allowing problems to

fester out of control.2. COMPETITION

- Thefighting conflict style maximizes individual assertiveness (i.e., concern for self) and minimizes

empathy (i.e., concern for others).- Groups consisting of competitive members generally enjoy seeking domination over others, and

typically see conflict as a win or lose predicament.

- Fighters tend to force others to accept their personal views by employing competitive, power tactics(e.g., argue; insult; accuse; violence) that foster feelings of intimidation

3. COMPROMISE

- Conciliation or compromising conflict style is typical of individuals who possess an intermediate-

level of concern for both personal and others outcomes.- Compromisers value fairness and, in doing so, anticipate mutual give-and-take interactions.

- By accepting some demands put forth by others, compromisers believe this agreeableness will

encourage others to meet half-way, thus promoting conflict resolution.- This conflict style can be considered an extension of both yielding and cooperative strategies.

4. ACCOMODATION

- In contrast, yielding or accommodating conflict styles are characterized by a high concern for

others while having a low concern for ones own self.- This passive pro-social approach emerges when individuals derive personal satisfaction from meeting

the needs of others and have a general concern for maintaining stable, positive social relationships.

- When faced with conflict, individuals with a yielding conflict style tend to give into others demandsout of respect for the social relationship (e.g., to maintain group unity) because they believe being

agreeable may be more important than winning.

5. COLLABORATION- Characterized by an active concern for both pro-social and pro-self behavior, cooperation conflict

style is typically used when an individual has elevated interests in their own outcomes as well as in the


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outcomes of others.

- During conflict, cooperators collaborate with others in an effort to find an amicable solution that

satisfies all parties involved in the conflict.

- Individuals with this type of conflict style tend to be highly assertive and highly empathetic at thesame time.

- By seeing conflict as a creative opportunity, collaborators willingly invest time and resources into

finding a win-win solution.- Is recommended above all others

6. NEGOTIATION

- Is a dialogue between two or more people or parties, intended to reach an understanding, resolve pointof difference, or gain advantage in outcome of dialogue, to produce an agreement upon courses of

action, to bargain for individual or collective advantage, to craft outcomes to satisfy various interests of

two people/parties involved in negotiation process.- Is a process where each party involved in negotiating tries to gain an advantage for themselves by the

end of the process.

- Is intended to aim at compromise.

Negotiation styles

Accommodating : Individuals who enjoy solving the other partys problems and preservingpersonal relationships. Accommodators are sensitive to the emotional states, body language, and

verbal signals of the other parties. They can, however, feel taken advantage of in situations

when the other party places little emphasis on the relationship.

Avoiding : Individuals who do not like to negotiate and dont do it unless warranted. Whennegotiating, avoiders tend to defer and dodge the confrontational aspects of negotiating;

however, they may be perceived as tactful and diplomatic.

Collaborating : Individuals who enjoy negotiations that involve solving tough problems increative ways. Collaborators are good at using negotiations to understand the concerns and

interests of the other parties. They can, however, create problems by transforming simple

situations into more complex ones. Competing : Individuals who enjoy negotiations because they present an opportunity to win

something. Competitive negotiators have strong instincts for all aspects of negotiating and are

often strategic. Because their style can dominate the bargaining process, competitive negotiators

often neglect the importance of relationships.

Compromising : Individuals who are eager to close the deal by doing what is fair and equal for

all parties involved in the negotiation. Compromisers can be useful when there is limited time to

complete the deal; however, compromisers often unnecessarily rush the negotiation process andmake concessions too quickly.

ALTERNATIVE DISPUTE RESOLUTION

Includes dispute resolution processes and techniques that act as a means for disagreeing partiesto come to an agreement short of litigation.

It is a collective term for the ways that parties can settle disputes, with (or without) the help of athird party.

II. TYPES OF COMMON DISPUTE SETTLEMENT


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1. Negotiation

- generally the first step taken in the settlement of an international dispute;

- is the discussion undertaken by the parties themselves of their respective claims and counterclaims

with a view to their just and orderly adjustment;- where the talks prosper and an agreement is reached, it is usually formalized in a treaty or more

directly effected through the rectification of the injury caused to the claimant state

2. Inquiry and Fact Finding- is an investigation of the pointts in question, o the theory that their elucidation will contribute to the

solution of the differences between the parties

- clarification by an impartial and conscientious body can limit if not entirely remove the areas ofdisagreement

- the findings of the party making the inquiry are not conclusive upon the disputing stes but they

nevertheless may exert a strong moral influence in the settlement of the conflict3. Mediation

- a more active involvement than good office is mediation by means of which the third party does not

merely provide the opportunity for the antagonists to negotiate but also actively participates in their

discussions in order to reconcile their conflicting claims and appease their feelings of resentment;- the suggestions of the mediator are merely persuasive, however and may be rejected without offense

by the parties to the dispute.

4. Good Offices- is a method by which a third party attempts to bring the disputing states together in order to enable

them to discuss the issues and contention and arrive at an agreement

- usually employed when the parties are no longer on speaking terms, that is, when they have severeddiplomatic relations or have actually commenced hostilities.

5. Conciliation

- also calls for the active participation of a third party in the attempt of the disputants to settle their

conflict and the recommendations made by it are likewise not binding.- unlike mediation the services of the conciliator are not offered by the third party but solicited by the

parties in dispute

6. Arbitration- is the solution of the dispute by an impartial third party, usually a tribunal created by the parties

themselves under a charter known as the compromi, which will provide for, among others, the

composition of the body and the manner of the selection of its members, its rules and proceedings andsometimes even the law to be applied by it and the issues and fact or law to be resolved;

- unlike in conciliation, the proceedings are essentially judicial and the award is , by previous

agreement binding on the parties to the dispute- similar to judicial settlement not only in the nature of the proceedings and the binding character of the

decisions but also in the fact that the disputes submitted for adjudication are legal rather than political.

TYPES OF ARBITRATION

Binding Arbitration: The parties agree to waive their right to go to court for a judicial decision which is

binding by the arbitrators ruling.

Non-Binding Arbitration: The parties have the discretion to abide by the arbitrator's decision or seek

other venues. In my 20 plus years of arbitration experience this is the least appealing and successfulform of arbitration; only the attorneys and arbitrator make money, and the parties rack up the venue

bills.


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Court Appointed Arbitration: Is just that ordered by the court. The judge elects an arbitrator of their

choice to hear and render a ruling which by the way is binding.

Independent Arbitration: Some have connected this form of arbitration with names like disputeresolution, ADR, debt settlement, debt arbitration and debt negotiating to name a few.

However, with this type of arbitration you will notice vast differences. With this type of arbitration we

represent only one party (usually the defendant if it happens to be a litigation case). We do not stayneutral in the dispute, but rather work as a fiduciary, representing our client to achieve out of court

settlement, IRS tax issues and delinquent accounts payable.

INTERNATIONAL ARBITRATION is a leading method for resolving disputes arising from

international commercial agreements and other international relationships. As with arbitration

generally, international arbitration is a creation of contract, i.e., the parties' decision to submit disputesto binding resolution by one or more arbitrators selected by or on behalf of the parties and applying

adjudicatory procedures, usually by including a provision for the arbitration of future disputes in their

contract.The practice of international arbitration has developed so as to allow parties from different

legal and cultural backgrounds to resolve their disputes, generally without the formalities of theirrespective legal systems.

COMMERCIAL ARBITRATION is a means of resolving business disputes between two or moreparties outside of a formal court system. Generally, the arbitration works similarly to a court trial,

although the setting is more informal. An arbitrator or a panel of arbitrators usually serves as both judge

and jury. Typically, each company is represented by an arbitration lawyer, who presents the company'sside of the case to the arbitrator. After reviewing all of the evidence, the arbitrator renders a decision in

the case.

An ARBITRAL TRIBUNAL (or arbitration tribunal) is a panel of one or more adjudicators which isconvened and sits to resolve a dispute by way of arbitration. The tribunal may consist of a sole

arbitrator, or there may be two or more arbitrators, which might include either a chairman or an umpire.

The parties to a dispute are usually free to agree the number and composition of the arbitral tribunal. Insome legal systems, an arbitration clause which provides for two (or any other even number) of

arbitrators is understood to imply that the appointed arbitrators will select an additional arbitrator as a

chairman of the tribunal, to avoid deadlock arising. Different legal systems differ as to how manyarbitrators should constitute the tribunal if there is no agreement.

Arbitral tribunals are usually constituted (appointed) in two types of proceedings:

Ad hoc arbitration proceedings are those in which the arbitrators are appointed by the parties without a

supervising institution, relying instead on the procedural law and courts of the place of arbitration to

resolve any differences over the appointment, replacement, or authority of any or all of the arbitrators;and

Institutional arbitration proceedings are those in which the arbitrators are appointed under thesupervision of professional bodies providing arbitration services, such as the American Arbitration

Association (which conducts international proceedings through its New York-based division, the

ICDR), the LCIA in London or the ICC in Paris. Although these institutions (and many others) areheadquartered in their respective cities, they are capable of supervising the appointment of arbitral

tribunals in nearly any country, avoiding the need for the parties to involve local courts and procedures

in the event of disagreement over the appointment, replacement, or authority of any or all of the


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arbitrators.

Permanent tribunals tend to have their own rules and procedures, and tend to be much more formal.

They also tend to be more expensive, and, for procedural reasons, slower.

ARBITRATION PROCEEDINGS

Procedure

Matters of procedure are normally determined either by the law of the seat of the arbitration, or by thetribunal itself under its own inherent jurisdiction (depending on national law). Procedural matters

normally include:

1. mode of submitting (and challenging) evidence2. time and place of the hearing

3. language and translations

4. disclosure of documents and other evidence

5. use of pleadings and/or interrogatories6. use of legal advisors

7. the appointment of experts and assessors

Appeals

Provisions relating to appeals vary widely between different jurisdictions, but most legal systemsrecognise that the right to appeal (or, technically, the right to seek to set aside) an award in an

arbitration should be limited.

Usually such challenges are made on one of two bases:1. that the tribunal did not have substantive jurisdiction to determine the matter; or

2. there was a serious irregularity on the part of the tribunal. Examples of serious irregularities

may include:a) failure of the tribunal to act in accordance with the rules of natural justice, or allowing a

fair hearing;

b) the tribunal exceeding its powers (other than by exceeding its jurisdiction);c) failure of the tribunal to conduct proceedings in accordance with the procedure agreed

by the parties;

d) failure of the tribunal to deal with all the issues put to it for resolution;e) uncertainty or ambiguity as to the effect of the award;

f) the award being procured by fraud, or otherwise being procured in a way contrary to

public policy;

g) failure to comply with the requirements for the form of the award (e.g. in writing or in aspecific language);

h) irregularities in the conduct of the proceedings.

In some jurisdictions it is also possible to appeal against an award on a point of law, however, such

appeals normally require either the permission of the other parties, or the leave of the court.

The LEX LOCI ARBITRI is the Latin term for "law of the place where arbitration is to take place" in

the conflict of Laws. Conflict is the branch of public law regulating all lawsuits involving a "foreign"

law element where a difference in result will occur depending on which laws are applied.


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When a case comes before a court and all the main features of the case are local, the court will apply

the lex fori, the prevailing municipal law, to decide the case. But if there are "foreign" elements to the

case, the forum court may be obliged under the conflict of laws system to consider:

1. whether the forum court has jurisdiction to hear the case (see the problem of forum shopping);

2. it must then characterise the issues, i.e. allocate the factual basis of the case to its relevant legalclasses; and

3. then apply the choice of law rules to decide which law is to be applied to each class.

The lex loci arbitri is an element in the choice of law rules applied to cases testing the validity of a

contract. As an aspect of the public policy of freedom of contract, the parties to an agreement are free

to include a forum selection clause and/or a choice of law clause and, unless there is a lack of bonafides, these clauses will be considered valid. If there is no express selection of a proper law, the courts

will usually take the nomination of a forum as a "connecting factor", i.e. a fact that links a case to a

specific georgraphical location. For these purposes, one of the "forums" that may be selected is

arbitration. Hence, the fact that the parties have chosen a state as the place of arbitration is an indicationthat parties may have intended the local law to apply. This indication will be weighed alongside other

connecting factors. The state that has the largest number of connecting factors will be the lex causae

applied to resolve the dispute between the parties. If there is a tie, the connecting factors which relate toperformance will be given a greater weighting.

LEX SITUS refers to the law of the place in which property is situated for the purposes of the conflictof laws. For example, property may subject to tax pursuant to the law of the place of the property or by

virtue of the domicile of its owner. Conflict is the branch of public law regulating all lawsuits involving

a "foreign" law element where a difference in result will occur depending on which laws are applied.



case, the forum court may be obliged under the conflict of laws system to consider:

whether the forum court has jurisdiction to hear the case (see the problem of forum shopping);

it must then characterise the issues, i.e. allocate the factual basis of the case to its relevant legalclasses; and

then apply the choice of law rules to decide which law is to be applied to each class.

The lex situs is a choice of law rule applied to identify the lex causae for cases involving title to, or the

possession and use of property. In law, there are two types of property:

Real property is land or any permanent feature or structure above or below the surface. Ownership of

land is an aspect of the system of real property or realty in common law systems (immovables in civillaw systems and the conflict of laws).

All other property is considered personal property or personalty in common law systems (movables in

civil law systems and the conflict of laws), and this property is either tangible or intangible, i.e. it is

either physical property that can be touched like a computer, or it is an enforceable right like a patent or

other form of intellectual property.Properly speaking, the term lex situs is applied only to immovable property and lex loci rei sitae ought

to be used when referring to the law of the situs of movable property but this distinction is less


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common today and is ignored for the purposes of the conflict pages on the Wikipedia. Land has

traditionally represented one of the most important cultural and economic forms of wealth in society.

Because of this historical significance, it is vital that any judgment affecting title to or the use of the

land should be enforceable with the minimum of difficulty. Hence, compliance with the lex situs shouldproduce a judgment in rem. The choice of law rules are as follows:

immovables, by definition, do not move and so the identification of the lex situs will not presenta problem in the majority of cases;

because movables may be portable, the lex situs is the law of the state in which the personalty is

resident at the time the case is heard.

LEX LOCI CELEBRATIONIS is the Latin term for "law of the place where [the marriage] is

celebrated" in the conflict of laws. Conflict is the branch of public law regulating all lawsuits involvinga "foreign" law element where a difference in result will occur depending on which laws are applied.



case, the forum court may be obliged under the conflict of laws system to:consider whether the forum court has jurisdiction to hear the case (see the problem of forum shopping);

characterise the issues, i.e. allocate the factual basis of the case to its relevant legal classes; andapply the choice of law rules to decide which law is to be applied to each class.

The lex loci celebrationis is a choice of law rule applied to cases testing the validity of a marriage. Forexample, suppose that a person domiciled in Scotland and a person habitually resident in France, both

being of the Islamic faith, go through an Islamic marriage ceremony in Pakistan where their respective

families originated. This ceremony is not registered with the Pakistani authorities but they initiallyestablish a matrimonial home in Karachi. After a year, they return to Europe. For immigration and other

purposes, whether they are now husband and wife would be referred to the law of Pakistan because that

is the most immediately relevant law by which to decide precisely the nature of the ceremony theywent through and the effect of failing to register it. If the ceremony was in fact sufficient to create avalid marriage under Pakistani law and there are no public policy issues raised under their personal

laws of lex domicilii or habitual residence, and under the lex fori, they will be treated a validly married

for all purposes, i.e. it will be an in rem outcome.

An ARBITRATION AWARD (or arbitral award) is a determination on the merits by an arbitration

tribunal in an arbitration, and is analogous to a judgment in a court of law. It is referred to as an 'award'even where all of the claimant's claims fail (and thus no money needs to be paid by either party), or the

award is of a non-monetary nature.

Damages and other remedies

Although arbitration awards are characteristically an award of damages against a party, tribunals

usually have a range of remedies that can form a part of the award.

1. the tribunal may order the payment of a sum of money (conventional damages)

2. the tribunal may make a "declaration" as to any matter to be determined in the proceedings3. in most jurisdictions, the tribunal has the same power as a court to:

order a party to do or refrain from doing something ("injunctive relief")


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to order specific performance of a contract

to order the rectification, setting aside or cancellation of a deed or other document.

Enforcement of Arbitration Awards

Arbitration is particularly popular as a means of dispute resolution in the commercial sphere (for a

summary of the various arenas in which arbitration is usually chosen, see the specific article on"arbitration"). One of the reasons for doing so is that, in international trade, it is often easier to enforce

an arbitration award in a foreign country than it is to enforce a judgment of the court.

Under the New York Convention 1958, an award issued in a contracting state can generally be freely

enforced in any other contracting state, only subject to certain, limited defences. Those defences are:

1. a party to the arbitration agreement was, under the law applicable to him, under some

incapacity;

2. the arbitration agreement was not valid under its governing law;

3. a party was not given proper notice of the appointment of the arbitrator or of the arbitration

proceedings, or was otherwise unable to present its case;4. the award deals with an issue not contemplated by or not falling within the terms of the

submission to arbitration, or contains matters beyond the scope of the arbitration (subject to theproviso that an award which contains decisions on such matters may be enforced to the extent

that it contains decisions on matters submitted to arbitration which can be separated from those

matters not so submitted);5. the composition of the arbitral authority was not in accordance with the agreement of the parties

or, failing such agreement, with the law of the place where the hearing took place (the "lex loci

arbitri");6. the award has not yet become binding upon the parties, or has been set aside or suspended by a

competent authority, either in the country where the arbitration took place, or pursuant to the

law of the arbitration agreement;7. the subject matter of the award was not capable of resolution by arbitration; or8. enforcement would be contrary to "public policy".

Virtually every significant commercial country in the world is a party to the Convention, but relativelyfew countries have a comprehensive network for cross-border enforcement of judgments of the court.

Hence in many countries, particularly in emerging markets, a foreign arbitration award is much easier

to enforce than an award of the court. For example, it is very difficult to enforce foreign judgments inthe former CIS countries, but it is considerably easier to enforce awards of an arbitration tribunal.

The other characteristic of cross-border enforcement of arbitration awards that makes them appealing

to commercial parties is that they are not limited to awards of damages. Whereas in most countries onlymonetary judgments are enforceable in the cross-border context, no such restrictions are imposed on

arbitration awards and so it is theoretically possible (although unusual in practice) to obtain an

injunction or an order for specific performance in an arbitration proceeding which could then beenforced in another New York Convention contracting state.

The New York Convention is not actually the only treaty dealing with cross-border enforcement ofarbitration awards. The earlier Geneva Convention on the Execution of Foreign Arbitral Awards 1927

remains in force, but the success of the New York Convention means that the Geneva Convention is

rarely utilised in practise.


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III.INTERNATIONAL ALTERNATIVE DISPUTE RESOLUTION

INTERNATIONAL LAW is the set of rules generally regarded and accepted as binding in relationsbetween states and nations. It serves as a framework for the practice of stable and organized

international relations. International law differs from national legal systems in that it primarily concerns

nations rather than private citizens. National law may become international law when treaties delegatenational jurisdiction to supranational tribunals such as the European Court of Human Rights or the

International Criminal Court. Treaties such as the Geneva Conventions may require national law to

conform.

International law is consent-based governance. This means that a state member of the international

community is not obliged to abide by international law unless it has expressly consented to a particularcourse of conduct. This is an issue of state sovereignty.

The term "international law" can refer to three distinct legal disciplines:

1. Public international law, which governs the relationship between provinces and international

entities. It includes these legal fields: treaty law, law of sea, international criminal law, the laws

of war or international humanitarian law and international human rights law.2. Private international law, or conflict of laws, which addresses the questions of (1) which

jurisdiction may hear a case, and (2) the law concerning which jurisdiction applies to the issues

in the case.3. Supranational law or the law of supranational organizations, which concerns regional

agreements where the laws of nation states may be held inapplicable when conflicting with a

supranational legal system when that nation has a treaty obligation to a supranational collective.

The two traditional branches of the field are:

jus gentium law of nations

jus inter gentes agreements between nations

SOURCES OF INTERNATIONAL LAW

Sources of international law are the materials and processes out of which the rules and principles

regulating the international community are developed. They have been influenced by a range ofpolitical and legal theories. During the 19th century, it was recognised by legal positivists that a

sovereign could limit its authority to act by consenting to an agreement according to the principle pacta

sunt servanda. This consensual view of international law was reflected in the 1920 Statute of the

Permanent Court of International Justice, and preserved in Article 38(1) of the 1946 Statute of theInternational Court of Justice.

Article 38(1) is generally recognised as a definitive statement of the sources of international law. Itrequires the Court to apply, among other things, (a) international conventions "expressly recognized by

the contesting states", and (b) "international custom, as evidence of a general practice accepted as law".

To avoid the possibility of non liquet, sub-paragraph (c) added the requirement that the generalprinciples applied by the Court were those that had been "the general principles of the law recognized

by civilized nations". As it is states that by consent determine the content of international law, sub-

paragraph (d) acknowledges that the Court is entitled to refer to "judicial decisions" and the most


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highly qualified juristic writings "as subsidiary means for the determination of rules of law".

On the question of preference between sources of international law, rules established by treaty will take

preference if such an instrument exists. It is also argued however that international treaties and

international custom are sources of international law of equal validity; this is that new custom maysupersede older treaties and new treaties may override older custom. Certainly, judicial decisions and

juristic writings are regarded as auxiliary sources of international law, whereas it is unclear whether the

general principles of law recognized by 'civilized nations' should be recognized as a principal orauxiliary source of international law.

It may be argued that the practice of international organizations, most notably that of the UnitedNations, as it appears in the resolutions of the Security Council and the General Assembly, are an

additional source of international law, even though it is not mentioned as such in Article 38(1) of the

1946 Statute of the International Court of Justice. Article 38(1) is closely based on the correspondingprovision of the 1920 Statute of the Permanent Court of International Justice, thus predating the role

that international organizations have come to play in the international plane. That is, the provision of

Article 38(1) may be regarded as dated, and this can most vividly be seen in the mention made to

'civilized nations', a mentioning that appears all the more quaint after the decolonization process thattook place in the early 1960s and the participation of nearly all nations of the world in the United

Nations.

It is also possible, though less common, for a treaty to be modified by practices arising between the

parties to that treaty. The other situation in which a rule would take precedence over a treaty provision

would be where the rule has the special status of being part of the jus cogens.

Treaties as law

Treaties and conventions are the persuasive source of international law and are considered "hard law."

Treaties can play the role of contracts between two or more parties, such as an extradition treaty or a

defence pact. Treaties can also be legislation to regulate a particular aspect of international relations, orform the constitutions of international organisations. Whether or not all treaties can be regarded as

sources of law, they are sources of obligation for the parties to them. Article 38(1)(a), which uses the

term "international conventions", concentrates upon treaties as a source of contractual obligation butalso acknowledges the possibility of a state expressly accepting the obligations of a treaty to which it is

not formally a party.

For a treaty-based rule to be a source of law, rather than simply a source of obligation, it must either be

capable of affecting non-parties or have consequences for parties more extensive than those specifically

imposed by the treaty itself.

Treaties as custom

Some treaties are the result of codifying existing customary law, such as laws governing the globalcommons, and jus ad bellum. While the purpose is to establish a code of general application, its

effectiveness depends upon the number of states that ratify or accede to the particular convention.

Relatively few such instruments have a sufficient number of parties to be regarded as international lawin their own right. The most obvious examples are the 1949 Geneva Conventions for the Protection of

War Victims.


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Most multi-lateral treaties fall short of achieving such a near universal degree of formal acceptance,

and are dependent upon their provisions being regarded as representing customary international law

and, by this indirect route, as binding upon non-parties. This outcome is possible in a number of ways:

When the treaty rule reproduces an existing rule of customary law, the rule will be clarified in terms ofthe treaty provision. A notable example is the Vienna Convention on the Law of Treaties 1969, which

was considered by the ICJ to be law even before it had been brought into force.

When a customary rule is in the process of development, its incorporation in a multilateral treaty may

have the effect of consolidating or crystallising the law in the form of that rule. It is not always easy to

identify when this occurs. Where the practice is less developed, the treaty provision may not be enoughto crystallise the rule as part of customary international law.

Even if the rule is new, the drafting of the treaty provision may be the impetus for its adoption in thepractice of states, and it is the subsequent acceptance of the rule by states that renders it effective as

part of customary law.If a broad definition is adopted of state practice, the making of a treaty would fall

within the definition. Alternatively, it is possible to regard the treaty as the final act of state practice

required to establish the rule in question, or as the necessary articulation of the rule to give it the opiniojuris of customary international law.

Convention-based "instant custom" has been identified by the ICJ on several occasions as representingcustomary law without explanation of whether the provision in question was supported by state

practice. This has happened with respect to a number of provisions of the Vienna Convention on the

Law of Treaties 1969. If "instant custom" is valid as law, it could deny to third parties the normalconsequences of non-accession to the treaty.

International custom

Article 38.1(b) of the ICJ Statute refers to "international custom" as a source of international law,

specifically emphasizing the two requirements of state practice plus acceptance of the practice as

obligatory or opinio juris sive necessitatis (usually abbreviated as opinio juris).

Derived from the consistent practice of (originally) Western states accompanied by opinio juris (the

conviction of States that the consistent practice is required by a legal obligation), customaryinternational law is differentiated from acts of comity by the presence of opinio juris (although in some

instances, acts of comity have developed into customary international law, i.e. diplomatic immunity).

Treaties have gradually displaced much customary international law. This development is similar to the

replacement of customary or common law by codified law in municipal legal settings, but customary

international law continues to play a significant role in international law.

State practice

When examining state practice to determine relevant rules of international law, it is necessary to takeinto account every activity of the organs and officials of states that relate to that purpose. There has

been continuing debate over where a distinction should be drawn as to the weight that should be

attributed to what states do, rather than what they say represents the law. In its most extreme form, thiswould involve rejecting what states say as practice and relegating it to the status of evidence of opinio

juris. A more moderate version would evaluate what a state says by reference to the occasion on which

the statement was made. It is only relatively powerful countries with extensive international contacts


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and interests that have regular opportunities of contributing by deed to the practice of international law.

The principal means of contribution to state practice for the majority of states will be at meetings of

international organisations, particularly the UN General Assembly, by voting and otherwise expressingtheir view on matters under consideration. Moreover, there are circumstances in which what states say

may be the only evidence of their view as to what conduct is required in a particular situation.

The notion of practice establishing a customary rule implies that the practice is followed regularly, or

that such state practice must be "common, consistent and concordant".Given the size of the

international community, the practice does not have to encompass all states or be completely uniform.There has to be a sufficient degree of participation, especially on the part of states whose interests are

likely be most affected, and an absence of substantial dissent. There have been a number of occasions

on which the ICJ has rejected claims that a customary rule existed because of a lack of consistency inthe practice brought to its attention.

Within the context of a specific dispute, however, it is not necessary to establish the generality of

practice. A rule may apply if a state has accepted the rule as applicable to it individually, or because thetwo states belong to a group of states between which the rule applies.

A dissenting state is entitled to deny the opposability of a rule in question if it can demonstrate itspersistent objection to that rule, either as a member of a regional group or by virtue of its membership

of the international community. It is not easy for a single state to maintain its dissent. Also, rules of the

jus cogens have a universal character and apply to all states, irrespective of their wishes.

Demand for rules that are responsive to increasingly rapid changes has led to the suggestion that there

can be, in appropriate circumstances, such a concept as "instant custom". Even within traditional

doctrine, the ICJ has recognised that passage of a short period of time is not necessarily a bar to theformation of a new rule. Because of this, the question is sometimes raised as to whether the word

"custom" is suitable to a process that could occur with great rapidity.

Opinio juris

A wealth of state practice does not usually carry with it a presumption that opinio juris exists. Notonly must the acts concerned amount to a settled practice, but they must also be such, or be carried out

in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a

rule of law requiring it.

In cases where practice (of which evidence is given) comprises abstentions from acting, consistency of

conduct might not establish the existence of a rule of customary international law. The fact that no

nuclear weapons have been used since 1945, for example, does not render their use illegal on the basisof a customary obligation because the necessary opinio juris was lacking.

Although the ICJ has frequently referred to opinio juris as being an equal footing with state practice,the role of the psychological element in the creation of customary law is uncertain.

Jus cogens

A peremptory norm or jus cogens (Latin for "compelling law" or "strong law") is a principle of

international law considered so fundamental that it overrides all other sources of international law,

including even the Charter of the United Nations. The principle of jus cogens is enshrined in Article 53


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of the Vienna Convention on the Law of Treaties:

For the purposes of the present Convention, a peremptory norm of general international law is a norm

accepted and recognised by the international community of States as a whole as a norm from which noderogation is permitted and which can be modified only by a subsequent norm of general international

law having the same character.

Rules of jus cogens generally require or forbid the state to do particular acts or respect certain rights.

However, some define criminal offences which the state must enforce against individuals. Generally

included on lists of such norms are prohibitions of such crimes and internationally wrongful acts aswaging aggressive war, war crimes, crimes against humanity, piracy, genocide, apartheid, slavery and

torture.

The evidence supporting the emergence of a rule of jus cogens will be essentially similar to that

required to establish the creation of a new rule of customary international law. Indeed, jus cogens could

be thought of as a special principle of custom with a superadded opinio juris. The European Court of

Human Rights has stressed the international public policy aspect of the jus cogens.

General principles of law

The scope of general principles of law, to which Article 38(1) of the Statute of the ICJ refers, is unclear

and controversial but may include such legal principles that are common to a large number of systems

of municipal law. Given the limits of treaties or custom as sources of international law, Article 38(1)may be looked upon as a directive to the Court to fill any gap in the law and prevent a non liquet by

reference to the general principles.

In earlier stages of the development of international law, rules were frequently drawn from municipallaw. In the 19th century, legal positivists rejected the idea that international law could come from any

source that did not involve state will or consent, but were prepared to allow for the application of

general principles of law, provided that they had in some way been accepted by states as part of thelegal order. Thus Article 38(1)(c), for example, speaks of general principles "recognised" by states. An

area that demonstrates the adoption of municipal approaches is the law applied to the relationship

between international officials and their employing organisations, although today the principles areregarded as established international law.

The significance of general principles has undoubtedly been lessened by the increased intensity oftreaty and institutional relations between states. Nevertheless, the concepts of estoppel and equity have

been employed in the adjudication of international disputes. For example, a state that has, by its

conduct, encouraged another state to believe in the existence of a certain legal or factual situation, and

to rely upon that belief, may be estopped from asserting a contrary situation in its dealings.Theprinciple of good faith was said by the ICJ to be "[o]ne of the basic principles governing the creation

and performance of legal obligations". Similarly, there have been frequent references to equity.

It is generally agreed that equity cannot be employed to subvert legal rules (that is, operate contralegem). This "equity as law" perception is reinforced by references to equitable principles in the text of

the United Nations Convention on the Law of the Sea 1982, though this may be little more than an

admission as to the existence, and legitimation, of the discretion of the adjudicator.

However, the principles of estoppel and equity in the international context do not retain all the

connotations they do under common law. The reference to the principles as "general" signify that, if


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rules were to be adapted from municipal law, they should be at a sufficient level of generality to

encompass similar rules existing in many municipal systems. Principles of municipal law should be

regarded as sources of inspiration rather than as sources of rules of direct application.

Judicial decisions and juristic writings

According to Article 38(1)(d) of its Statute, the ICJ is also to apply "judicial decisions and theteachings of the most highly qualified publicists of the various nations, as subsidiary means for the

determination of rules of law". It is difficult to tell what influence these materials have on the

development of the law. Pleadings in cases before the ICJ are often replete with references to case lawand to legal literature.

Judicial decisions

The decisions of international and municipal courts and the publications of academics can be referred

to, not as a source of law as such, but as a means of recognizing the law established in other sources. In

practice the International Court of Justice does not refer to domestic decisions although it does invokeits previous case-law.

There is no rule of stare decisis in international law. The decision of the Court has no binding forceexcept between the parties and in respect of that particular case.[27] Nevertheless, often the Court

would refer to its past decisions and advisory opinions to support its explanation of a present case.

Often the International Court of Justice will consider General Assembly resolutions as indicative ofcustomary international law.

Juristic writings

Article 38(1)(d) of the International Court of Justice Statute states that the 'teachings of the most highly

qualified publicists of the various nations' are also among the 'subsidiary means for the determination

of the rules of law'. The scholarly works of prominent jurists are not sources of international law butare essential in developing the rules that are sourced in treaties, custom and the general principles of

law. This is accepted practice in the interpretation of international law and was utilised by the United

States Supreme Court in The Paquete Habana case (175 US (1900) 677 at 700-1).

DOCTRINE OF INCORPORATION

Legal principle that, in general, the provisions of international law are enforceable in a jurisdiction sofar as they are consistent with the provisions of its domestic law.

DOCTRINE OF TRANSFORMATION

Legal principle that the provisions of international law are enforceable in a jurisdictions if they areadopted through customary use, court decisions (precedence), or legislation.

BASIC PRINCIPLES OF INTERNATIONAL LAW

1. States shall refrain in their international relations from the threat or use of force against the

territorial integrity or political independence of any State, or any other manner inconsistent withthe purposes of the UN.

2. States shall settle their international disputes by peaceful means in such a manner that

international peace and security and justice are not endangered.


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3. The duty of States not to intervene in matters within the domestic jurisdiction of any State.

4. The duty of States to cooperate with one another.

5. The principle of equal rights and self-determination of peoples.

6. The principle of sovereign equality of States.7. States shall fulfill in good faith the obligations assumed by them.

Generally Accepted Principles of International Law

1. Rules and principles of land warfare and of humanitarian law under Hague and Geneva

Conventions2. Pacta sunt servanda

3. Human rights

4. A foreign army allowed to march through a friendly country or to be stationed in it, bypermission of its government or sovereign, is exempt from the civil and criminal jurisdiction of

the place

5. Judicial acts not of a political complexion of a de facto government established by the military

occupant in an enemy territory is valid under international law6. Private property seized and used by the enemy in times of war under circumstances not

constituting valid requisition does not become enemy property and its private ownership is

retained, the enemy having acquired only its temporary use7. The State has the right to protect itself and its revenues, a right not limited to its own territory

but extending to the high seas

8. Principle of restrictive sovereign immunity9. Principle in diplomatic law that the receiving state has the special duty to protect the premises

of the diplomatic mission of the sending State

10. The right of a citizen to return to his country

JURSIDICTION (from the Latin ius, iuris meaning "law" and dicere meaning "to speak") is the

practical authority granted to a formally constituted legal body or to a political leader to deal with and

make pronouncements on legal matters and, by implication, to administer justice within a defined areaof responsibility. The term is also used to denote the geographical area or subject-matter to which such

authority applies.

Jurisdiction draws its substance from public international law, conflict of laws, constitutional law and

the powers of the executive and legislative branches of government to allocate resources to best serve

the needs of its native society.

International and municipal law

The standard treaties and conventions leave the issue of implementation to each state, i.e. there is nogeneral rule in international law that treaties have direct effect in municipal law, but some states, by

virtue of their membership of supranational bodies, allow the direct incorporation of rights or enact

legislation to honor their international commitments. Hence, citizens in those states can invoke thejurisdiction of local courts to enforce rights granted under international law wherever there is

incorporation. If there is no direct effect or legislation, there are two theories to justify the courts

incorporating international into municipal law:

Monism

This theory characterizes international and municipal law as a single legal system with municipal law


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subordinate to international law. Hence, in the Netherlands, all treaties and the orders of international

organizations are effective without any action being required to convert international into municipal

law. This has an interesting consequence because treaties that limit or extend the powers of the Dutch

government are automatically considered a part of their constitutional law, for example, the EuropeanConvention for the Protection of Human Rights and Fundamental Freedoms and the International

Covenant on Civil and Political Rights. In states adopting this theory, the local courts automatically

accept jurisdiction to adjudicate on lawsuits relying on international law principles.

Dualism

This theory regards international and municipal law as separate systems so that the municipal courtscan only apply international law either when it has been incorporated into municipal law or when the

courts incorporate international law on their own motion. In the United Kingdom, for example, a treaty

is not effective until it has been incorporated at which time it becomes enforceable in the courts by anyprivate citizen, where appropriate, even against the UK Government. Otherwise the courts have a

discretion to apply international law where it does not conflict with statute or the common law. The

constitutional principle of parliamentary supremacy permits the legislature to enact any law

inconsistent with any international treaty obligations even though the government is a signatory tothose treaties.

SOVEREIGNTY is the quality of having independent authority over a geographic area, such as aterritory. It can be found in a power to rule and make laws that rests on a political fact for which no

pure legal definition can be provided.

For centuries past, the idea that a state could be sovereign was always connected to its ability to

guarantee the best interests of its own citizens. Thus, if a state could not act in the best interests of its

own citizens, it could not be thought of as a sovereign state.

The current notion of state sovereignty contains four aspects, or different ways of understanding the

term:

1. domestic sovereignty actual control over a state exercised by an authority organized within

this state,

2. interdependence sovereignty actual control of movement across state's borders, assuming theborders exist,

3. international legal sovereignty formal recognition by other sovereign states,

4. Westphalian sovereignty lack of other authority over state than the domestic authority(examples of such other authorities could be a non-domestic church, a non-domestic political

organization, or any other external agent).

Often, these four aspects all appear together, but this is not necessarily the case they are not affectedby one another, and there are historical examples of states that were non-sovereign in one aspect while

at the same time being sovereign in another of these aspects.

INDEPENDENCE is a condition of a nation, country, or state in which its residents and population, or

some portion thereof, exercise self-government, and usually sovereignty, over the territory. The

opposite of independence is a dependent territory.

ELEMENTS OF STATE


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1. People - the inhabitants of the State; the number of which is capable for self-sufficiency and self

defense of both sexes for perpetuity.

Inhabitants;

Citizens;

Electors.

2. Territory - a fixed portion of the surface of the earth inhabited by the people of the State.

3. Government - the agency or instrumentality through which the will of the State is formulated,expressed and realized.

4. Sovereignty - the supreme and uncontrollable power inherent in a State by which that State isgoverned.

5. Recognition may implied (costumary) or express (treaty)

6. Degree of Civilization

ALTERNATIVE DISPUTE SETTLEMENT INSTITUTION

Permanent Court of Arbitration is an international organization based in The Hague in the Netherlands.

The court was established in 1899 as one of the acts of the first Hague Peace Conference, which makesit the oldest institution for international dispute resolution.

Unlike the ICJ, the PCA is not just open to states but also to other parties. The PCA provides services

for the resolution of disputes involving various combinations of states, state entities, intergovernmental

organizations, and private parties.

The PCA is not a court in the conventional understanding of that term, but an administrative

organization with the object of having permanent and readily available means to serve as the registryfor purposes of international arbitration and other related procedures, including commissions of enquiry

and conciliation. It is a permanent framework available to assist temporary arbitral tribunals or

commissions. The judges or abitrators that hear cases are officially called "Members" of the Court.

The PCA is housed in the Peace Palace in The Hague, which was built specially for the Court in 1913

with an endowment from Andrew Carnegie. From 1922 on, the building also housed the distinctlyseparate Permanent Court of International Justice, which was replaced by the International Court of

Justice in 1946.

In the early 1980s, the PCA helped in setting up the administrative services of the Iran-United StatesClaims Tribunal.

The public at large is usually more familiar with the International Court of Justice than with the

Permanent Court of Arbitration, partly because of the closed nature of cases handled by the PCA and tothe low number of cases dealt with between 1946 and 1990. The PCA's caseload has, however,

increased since then.

The PCA administers cases arising out of international treaties (including bilateral and multilateral

investment treaties), and other agreements to arbitrate. The cases conducted by the PCA span a wide

range of legal issues, including disputes over territorial and maritime boundaries, sovereignty, humanrights, international investment (investor-state arbitrations), and matters concerning international and

regional trade.


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Hearings are rarely open to the public and sometimes even the decision itself is kept confidential at the

request of the parties. Many decisions and related documents are available on the PCA website.

International Court of Arbitration is an institution for the resolution of international commercial

disputes. The International Court of Arbitration is part of the International Chamber of Commerce.

There are an increasing number of cases being brought before the International Court of Arbitration.

There have been more than 500 cases a year handled by the International Court of Arbitration since

1999.

International Center for Settlement of Investment Disputes is an international arbitration institution

which facilitates arbitration and conciliation of legal disputes between international investors. TheICSID is a member of the World Bank Group and is headquartered in Washington, D.C., United States.

It was established in 1966 as a multilateral specialized dispute resolution institution to encourage

international flow of investment and mitigate non-commercial risks. Although the ICSID is a member

of the World Bank Group and receives its funding from the World Bank, it was established as anautonomous institution by a separate treaty drafted by the International Bank for Reconstruction and

Development's executive directors and signed by member countries.[1][2] The ICSID is contracted

with and governed by its member countries, but has its own Secretariat which carry out its normaloperations. The center facilitates arbitration and conciliation proceedings, allowing independent

tribunals and arbitration mechanisms to hold proceedings under its rules, and all contracting member

states agree to enforce and uphold arbitral awards in accordance with the ISCID Convention. TheICSID also helps administer dispute resolution proceedings under other treaties and for alternative

arbitration mechanisms. The center also performs advisory activities and maintains several

publications.

Governance

The ICSID is governed by its Administrative Council which meets annually and elects the center'sSecretary-General and Deputy Secretary-General, approves rules and regulations, conducts the center's

case proceedings, and approves the center's budget and annual report. The council consists of one

representative from each of the center's contracting member states and is chaired by the President of theWorld Bank Group, although the president may not vote. The ICSID's normal operations are carried out

by its Secretariat which comprises 40 employees and is led by the Secretary-General of the ICSID. The

Secretariat provides support to the Administrative Council in conducting the center's proceedings. Italso manages the center's Panel of Conciliators and Panel of Arbitrators. Each contracting member state

may appoint four persons to each panel. In addition to serving as the center's principal, the Secretary-

General is responsible for legally representing the ICSID and serving as the registrar of its proceedings.

As of 2012, Meg Kinnear serves as the center's Secretary-General.

Membership

The ICSID has 159 member states which have signed the center's convention. Of these member states,

148 are contracting member states which have deposited instruments of ratification.[8] The ICSID's

former members are Bolivia, Ecuador, and Venezuela.[9] All ICSID contracting member states,whether or not they are parties to a given dispute, are required by the ICSID Convention to recognize

and enforce ICSID arbitral awards.


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The UNCITRAL Model Law on International Commercial Arbitration was prepared by UNCITRAL,

and adopted by the United Nations Commission on International Trade Law on 21 June 1985. In 2006

the model law was amended, it now includes more detailed provisions on interim measures.

The model law is not binding, but individual states may adopt the model law by incorporating it into

their domestic law (as, for example, Australia did, in the International Arbitration Act 1974, as

amended).

The model law was published in English and in French. Translations in all six United Nations

languages now exist.

Note that there is a distinct difference between the UNCITRAL Model Law on International

Commercial Arbitration (1985) and the UNCITRAL Arbitration Rules. On its website, UNCITRALexplains the difference as follows: "The UNCITRAL Model Law provides a pattern that law-makers in

national governments can adopt as part of their domestic legislation on arbitration. The UNCITRAL

Arbitration Rules, on the other hand, are selected by parties either as part of their contract, or after a

dispute arises, to govern the conduct of an arbitration intended to resolve a dispute or disputes betweenthemselves. Put simply, the Model Law is directed at States, while the Arbitration Rules are directed at

potential (or actual) parties to a dispute."

Dispute settlement in the World Trade Organization

Dispute settlement is regarded by the World Trade Organization (WTO) as the central pillar of themultilateral trading system, and as the organization's "unique contribution to the stability of the global

economy". A dispute arises when one member country adopts a trade policy measure or takes some

action that one or more fellow members considers to a breach of WTO agreements or to be a failure to

live up to obligations. By joining the WTO, member countries have agreed that if they believe fellowmembers are in violation of trade rules, they will use the multilateral system of settling disputes instead

of taking action unilaterally this entails abiding by agreed procedures (Dispute Settlement

Understanding) and respecting judgments, primarily of the Dispute Settlement Body (DSB), the WTOorgan responsible for adjudication of disputes. A former WTO Director-General characterized the WTO

dispute settlement system as "the most active international adjudicative mechanism in the world today."

Dispute Settlement Understanding

Prompt compliance with recommendations or rulings of the DSB is essential in order to ensureeffective resolution of disputes to the benefit of all Members. - World Trade Organization, Article

21.1 of the DSU

In 1994, the WTO members agreed on the Understanding on Rules and Procedures Governing theSettlement of Disputes or Dispute Settlement Understanding (DSU) (annexed to the "Final Act" signed

in Marrakesh in 1994). Pursuant to the rules detailed in the DSU, member states can engage in

consultations to resolve trade disputes pertaining to a "covered agreement" or, if unsuccessful, have aWTO panel hear the case. The priority, however, is to settle disputes, through consultations if possible.

By January 2008, only about 136 of the nearly 369 cases had reached the full panel process.

Duration of a Dispute Settlement procedure

These approximate periods for each stage of a dispute settlement procedure are target figures. The


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agreement is flexible. In addition, the countries can settle their dispute themselves at any stage.

Totals are also approximate.

60 days Consultations, mediation, etc.45 days Panel set up and panellists appointed

6 months Final panel report to parties

3 weeks Final panel report to WTO members60 days Dispute Settlement Body adopts report (if no appeal)

Total = 1 year (without appeal)

6090 days Appeals report30 days Dispute Settlement Body adopts appeals report

Total = 1 year 3 months (with appeal)

Understanding the WTO: Settling Disputes - A unique contribution

The operation of the WTO dispute settlement process involves the parties and third parties to a case and

may also involve the DSB panels, the Appellate Body, the WTO Secretariat, arbitrators, independentexperts, and several specialized institutions.[6] The General Council discharges its responsibilities

under the DSU through the Dispute Settlement Body (DSB). Like the General Council, the DSB is

composed of representatives of all WTO Members. The DSB is responsible for administering the DSU,i.e. for overseeing the entire dispute settlement process. It also has the authority to establish panels,

adopt panel and Appellate Body reports, maintain surveillance of implementation of rulings and

recommendations, and authorize the suspension of obligations under the covered agreements. The DSBmeets as often as necessary to adhere to the timeframes provided for in the DSU.

From complaint to final report

If a member state considers that a measure adopted by another member state has deprived it of a benefit

accruing to it under one of the covered agreements, it may call for consultations with the other member

state. If consultations fail to resolve the dispute within 60 days after receipt of the request forconsultations, the complainant state may request the establishment of a Panel. It is not possible for the

respondent state to prevent or delay the establishment of a Panel, unless the DSB by consensus decides

otherwise. The panel, normally consisting of three members appointed ad hoc by the Secretariat, sits toreceive written and oral submissions of the parties, on the basis of which it is expected to make

findings and conclusions for presentation to the DSB. The proceedings are confidential, and even when

private parties are directly concerned, they are not permitted to attend or make submissions separatefrom those of the state in question. Disputes can also arise under Non-violation nullification of benefits

claims.

The final version of the panel's report is distributed first to the parties; two weeks later it is circulated toall the members of the WTO. In sharp contrast with other systems, the report is required to be adopted

at a meeting of the DSB within 60 days of its circulation, unless the DSB by consensus decides not to

adopt the report or a party to the dispute gives notice of its intention to appeal. A party may appeal apanel report to the standing Appellate Body, but only on issues of law and legal interpretations

developed by the panel. Each appeal is heard by three members of the permanent seven-member

Appellate Body set up by the Dispute Settlement Body and broadly representing the range of WTOmembership. Members of the Appellate Body have four-year terms. They must be individuals with

recognized standing in the field of law and international trade, not affiliated with any government. The

Appellate Body may uphold, modify or reverse the panel's legal findings and conclusions. Normally


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appeals should not last more than 60 days, with an absolute maximum of 90 days. The possibility for

appeal makes the WTO dispute resolution system unique among the judicial processes of dispute

settlement in general public international law.

Members may express their views on the report of the Appellate Body, but they cannot derail it. The

DSU states unequivocally that an Appellate Body report shall be adopted by the DSB and

unconditionally accepted by the parties, unless the DSB decides by consensus within thirty days of itscirculation not to adopt the report.[17] Unless otherwise agreed by the parties to the dispute, the period

from establishment of the panel to consideration of the report by the DSB shall as a general rule not

exceed nine months if there is no appeal, and twelve months if there is an appeal.

Compliance

The DSU addresses the question of compliance and retaliation. Within thirty days of the adoption of the

report, the member concerned is to inform the DSB of its intentions in respect of implementation of the

recommendations and rulings. If the member explains that it is impracticable to comply immediately

with the recommendations and rulings, it is to have a "reasonable period of time" in which to comply. Ifno agreement is reached about the reasonable period for compliance, that issue is to be the subject of

binding arbitration; the arbitrator is to be appointed by agreement of the parties. If there is a

disagreement as to the satisfactory nature of the measures adopted by the respondent state to complywith the report, that disagreement is to be decided by a panel, if possible the same panel that heard the

original dispute, but apparently without the possibility of appeal from its decision. The DSU provides

that even if the respondent asserts that it has complied with the recommendation in a report, and even ifthe complainant party or the panel accepts that assertion, the DSB is supposed to keep the

implementation of the recommendations under surveillance.

Compensation and retaliation

If all else fails, two more possibilities are set out in the DSU:

If a member fails within the "reasonable period" to carry out the recommendations and rulings,

it may negotiate with the complaining state for a mutually acceptable compensation.

Compensation is not defined, but may be expected to consist of the grant of a concession by the

respondent state on a product or service of interest to the complainant state.

If no agreement on compensation is reached within twenty days of the expiry of the "reasonable

period", the prevailing state may request authorization from the DSB to suspend application to

the member concerned of concessions or other obligations under the covered agreements. TheDSU makes clear that retaliation is not favored, and sets the criteria for retaliation. In contrast to

prior GATT practice, authorization to suspend concessions in this context is semi-automatic, in

that the DSB "shall grant the authorization [...] within thirty days of the expiry of the reasonable

period", unless it decides by consensus to reject the request. Any suspension or concession orother obligation is to be temporary. If the respondent state objects to the level of suspension

proposed or to the consistency of the proposed suspension with the DSU principles, still another

arbitration is provided for, if possible by the original panel members or by an arbitrator orarbitrators appointed by the Director-General, to be completed within sixty days from

expiration of the reasonable period.

While such "retaliatory measures" are a strong mechanism when applied by economically powerful

countries like the United States or the European Union, when applied by economically weak countries

against stronger ones, they can often be ignored. Whether or not the complainant has taken a measure


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of retaliation, surveillance by the DSB is to continue, to see whether the recommendations of the panel

or the Appellate Body have been implemented.

Developing countries

Like most of the agreements adopted in the Uruguay Round, the DSU contains several provisions

directed to developing countries. The Understanding states that members should give "specialattention" to the problems and interests of developing country members. Further, if one party to a

dispute is a developing country, that party is entitled to have at least one panelist who comes from a

developing country. If a complaint is brought against a developing country, the time for consultations(before a panel is convened) may be extended, and if the dispute goes to a panel, the deadlines for the

developing country to make its submissions may be relaxed. Also, the Secretariat is authorized to make

a qualified legal expert available to any developing country on request. Formal complaints against leastdeveloped countries are discouraged, and if consultations fail, the Director-General and the Chairman

of the DSB stand ready to offer their good offices before a formal request for a panel is made. As to

substance, the DSU provides that the report of panels shall "explicitly indicate" how account has been

taken of the "differential and more favorable treatment" provisions of the agreement under which thecomplaint is brought. Whether or not a developing country is a party to a particular proceeding,

"particular attention" is to be paid to the interests of the developing countries in the course of

implementing recommendations and rulings of panels. In order to assist developing countries inovercoming their limited expertise in WTO law and assist them in managing complex trade disputes, an

Advisory Centre on WTO Law was established in 2001. The aim is to level the playing field for these

countries and customs territories in the WTO system by enabling them to have a full understanding oftheir rights and obligations under the WTO Agreement.

CALVO DOCTRINE

The Calvo Doctrine is a foreign policy doctrine which holds that jurisdiction in international

investment disputes lies with the country in which the investment is located. The Calvo Doctrine thus

proposed to prohibit diplomatic protection or (armed) intervention before local resources wereexhausted. An investor, under this doctrine, has no recourse but to use the local courts, rather than those

of their home country. As a policy prescription, the Calvo Doctrine is an expression of legal

nationalism. The principle, named after Carlos Calvo, an Argentine jurist, has been applied throughoutLatin America and other areas of the world.

The doctrine arose from Calvos's ideas, expressed in his Derecho internacional terico y prctico deEuropa y Amrica (Paris, 1868; greatly expanded in subsequent editions, which were published in

French). Calvo justified his doctrine as necessary to prevent the abuse of the jurisdiction of weak

nations by more powerful nations. It has since been incorporated as a part of several Latin American

constitutions, as well as many other treaties, statutes, and contracts. The doctrine is used chiefly inconcession contracts, the clause attempting to give local courts final jurisdiction and to obviate any

appeal to diplomatic intervention.

The Drago Doctrine is a narrower application of Calvo's wider principle.

DRAGO DOCTRINE

The Drago Doctrine was announced in 1902 by the Argentine Minister of Foreign Affairs Luis Mara

Drago. Extending the Monroe Doctrine, it set forth the policy that no foreign power, including the

United States, could use force against an American nation to collect debt. It was supplanted in 1904 by


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the Roosevelt Corollary.

It grew from the ideas expressed by Carlos Calvo in Derecho internacional terico y prctico de Europa

y Amrica, commonly known as the Calvo Doctrine. The Calvo Doctrine proposed to prohibitdiplomatic intervention before local resources were exhausted.

The Drago Doctrine itself was a response to the actions of Britain, Germany, and Italy, who hadblockaded and shelled ports in response to Venezuela's massive debt, acquired under president Cipriano

Castro. A modified version by Horace Porter was adopted at the Hague in 1907, adding that arbitration

and litigation should always be used first.

Documents

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