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International Dispute Settlement > 5 : Incidental and post-adjudicatory proceedings > Flashcards

5 : Incidental and post-adjudicatory proceedings Flashcards

1
Q

What are some incidental proceedings ? (4)

A

1/ request for provisional measures

2/ request of third party intervention

3/ counter-claim brought by respondent

4/ preliminary objections

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2
Q

What are some post-adjudicatory proceedings ? (3)

A

1/ request for interpretation

2/ request for revision

3/ annulment proceedings

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3
Q

2 main conditions for incidental proceedings ? (2)

A

1/ related to the subject matter of the claim

2/ prima facie jurisdiction of the court/tribunal

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4
Q

Definition provisional measures ? (4)

A

1/ order

2/ given by a court tribunal

3/ that protects the object of the litigation

4/ and accordingly the decision on the merits

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5
Q

Purposes of provisional measures ? (3)

A

1/ protect the rights of the parties pending a decision on the merits

2/ avoid irreparable damage and harm to be caused to the rights which are the subject matter of the dispute

3/ can also be directed towards avoiding the aggravation of the dispute, but cannot be sole object of the request for PMs

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6
Q

3 examples of cases in which the ICJ ordered PMs ?

A

1/ Qatar v UAE (CERD)

  • reunite separated families
  • readmit QAT students or give access to records
  • access to courts by Qatarians

2/ Iran v US (1955 Treaty of Amity, Economic Relations and Consular Rights)
- remove embargo from non-nuclear related sectors

3/ Ukraine v Russia (CERD and treaty on financing of terrorism)

  • stop interfering with Rep. institution in KRIM for UKR
  • maintenance of language edu
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7
Q

What characterises the rules on PMs ? (2)

A

1/ rules on PMs orders are not very specific

2/ extensive body of jurisprudence

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8
Q

Specific criteria on PMs in Article 26 of PCA Arbitration Rules ? (4)

A

1/ irreparable harm likely to result

2/ balancing operation : harm caused to requesting party must substantially outweigh harm likely to result to the opposing party if measure is granted

3/ reasonable probability of success on the merits

4/ non-exhaustive list of possible orders

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9
Q

What is particular about PMs in the WTO system ?

A

no PMs in WTO DS system, as there are already fast procedures + procedure in cases of urgency

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10
Q

Criteria for PMs ? (5)

A

1/ prima facie jurisdiction

2/ link btwn plausible rights and measures sought

3/ prevention of irreparable prejudice to rights

4/ urgency

5/ Ukraine-Russia (ICJ); Art 290 UNCLOS (+ Arctic Sunrise)

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11
Q

What is prima facie jurisdiction ?

A

jurisdiction upon initial examination

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12
Q

What is the justification for prima facie jurisdiction with respect to PMs ?

A

decisions on jurisdiction at PMs stage are without effect on decision on jurisdiction made at the preliminary objections stage

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13
Q

2 examples of rulings on prima facie jurisdiction ? (2)

A

1/ Georgia / Russia (prima facie jurisdiction but no jurisdiction at preliminary objections stage)

2/ Ukraine / Russia (ICJ accepted prima facie jurisdiction)

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14
Q

What are the sub-conditions of the link btwn plausible rights/measures sought requirement ? (2)

A

1/ request must be linked to plausible rights that form the object of the proceedings

2/ rights held by the State requesting PM order must be plausible, probable, reasonable

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15
Q

What did ICJ hold regarding the link btwn plausible rights/measures sought requirement in Ukraine v Russia case ? (2)

A

1/ rights of UKR were plausible under CERD

2/ rights of UKR had not been proven enough under convention on terrorist financing

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16
Q

Characteristics of the prevention of irreparable prejudice to rights criterion ? (3)

A

1/ irreparable prejudice is usually at issue when the life or physical integrity of individuals is at stake

2/ what qualifies as irreparable harm is varied

3/ but some things cannot be qualified as such : purely financial damage, damages for which compensation is possible

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17
Q

Characteristics of the urgency criterion for PMs ? (3)

A

1/ PMs can only be requested in cases of urgency, i.e. when rights could be irreparably damaged before issuance of final decision

2/ time factor : rights must be likely to be damaged BEFORE issuance of final judgment

3/ procedural aspect : courts/tribunals give priority to requests for PMs orders

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18
Q

What is the legal force of PMs ? (3)

A

1/ until recently, debate about whether PMs are binding

2/ issue resolved by ICJ in “LaGrand” (GER v USA) case of 2001

3/ now, PMs are considered binding

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19
Q

How did the ICJ justify its judgment on the binding nature of PMs in the LaGrand case ? (3)

A

1/ interpreted Article 41 ICJ Statute to be in keeping with principle of effectiveness

2/ object and purpose of Article 41 is to preserve the ability of the ICJ to fulfil its judicial function regarding settlement of int disputes

3/ as such, if PMs were not binding, this would be contrary to the object and purpose of Article 41

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20
Q

Where did the uncertainty surrounding the legal force of PMs stem from ? (2)

A

1/ wording of statutory provisions

2/ prima facie jurisdiction is only a glance at whether a court/tribunal effectively has jurisdiction, which questions the possibility for the parties to be bound by PMs when a court/tribunal could potentially lack jurisdiction

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21
Q

What is a primordial condition surrounding third party interventions ? (2)

A

1/ the intervention has to be one of a State

2/ it is thus distinct for amicus curiae

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22
Q

What is the specific rationale behind third party intervention ? (3)

A

1/ judgment can have an influence on third parties who do not have a direct interest in the case

2/ a legal interest of a more general nature in the proceedings can thus be at stake

3/ intervention can therefore be seen as efficient as it avoids potentially repetitive litigation

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23
Q

What are the 2 types of third party intervention before the ICJ ?

A

1/ interest of a legal nature which might be affected by the decision in a case (Art. 62)

-> intervention is at discretion of ICJ

2/ third State is a party to a convention interpreted by the Court and has something to say about it (Art. 63)

-> intervention is a right, but third State will have to respect final decision issued by the Court

3/ copied in Arts 31 and 32 UNCLOS

24
Q

Characteristics of “interest of a legal nature” justifying third party intervention ? (3)

A

1/ intervener has to demonstrate a specific legal interest in the outcome of the case

2/ intervener cannot introduce a new dispute but can only be heard with respect to the subject matter of the dispute

3/ Art 62 ICJ Statute: jurisdictional link btwn the intervening State and case is not necessary, but if such a link exists, intervener will be bound by outcome of the case

25
Q

What are 2 cases in which third States intervened before the ICJ ?

A

1/ Jurisdictional immunities of the State (GER v IT : Greece intervening) - Art. 62

2/ Whaling in the Antarctic (AUS v JAP : NZ intervening) - Art. 63

26
Q

How is third party intervention different in the WTO system ? (3)

A

1/ WTO members can intervene when they have a substantial interest in a matter before a panel

2/ they have to notify this interest to DSB

3/ Article 10.2 DSU

4/ often multiple interveners e.g. ‘US - Shrimp’ (21)

27
Q

What is a counter-claim ? (2)

A

1/ claim usually raised by the respondent in its counter-memorial

2/ in counter-memorial, respondent can indeed rebut claims made by applicant and advance its own claims

28
Q

What are the 2 criteria for counter-claims to be considered valid ? (3)

A

1/ fall within the jurisdiction of the court/tribunal

2/ link with the subject-matter of the claim made by applicant

3/ Art 80 ICJ Rules

29
Q

What is a case in which counter-claims were brought before the ICJ ?

A

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (CRO v SRB)

  • > CRO claimed SRB was responsible for breaches of the Genocide Convention which took place in CRO btwn 1991-95
  • > SRB raised counter-claim that CRO was responsible for breaches of Genocide Convention in 1995

=> both claims were accepted based on validity criteria but ultimately rejected by the ICJ bc not enough evidence

Legal link: both based on Genocide Conv

Factual link: 1995 CRO operation launched in response to SER occupation in 1991-2

30
Q

What is the purpose of powers of interpretation and revision ?

A

To resolve the disputes that arise after the rendering of a judgment by an int court/tribunal

31
Q

What is jurisdictional basis for interpretation/revision judgments ?

A

The same one as the jurisdiction for original case (continuity)

32
Q

When is interpretation available ?

A

when parties do not agree on the substance of a judgment/award

33
Q

What is a case in which the ICJ accepted a request for interpretation ?

A

Temple of Preah Vihear (Cambodia v Thailand)

34
Q

What are the time limits surrounding interpretation ?

A

None, requests can be made whenever the need arises

35
Q

Characteristics of interpretation ? (5)

A

1/ involves precisely defining the terms of operative part of the judgment + specifying its scope, meaning and purpose

2/ cannot be used to seek a rehearing/revision of initial decision

3/ interpretation cannot violate principle of res judicata

4/ int courts are not bound by formulae chosen by parties

5/ request for interpretation can relate to operative part to the judgment as well as to its reasoning

36
Q

When is revision available ?

A

when a new decisive fact is discovered

37
Q

Conditions for request of revision ? (4)

A

1/ discovery of a new fact that is decisive

2/ new fact was unknown at the time of the judgment, both to the court and party requesting revision

3/ requesting party must not have been unaware of new fact due to its own negligence or ignorance

4/ time limit:
(i) ICJ: 6 months & 10 years (Art 61 ICJ Statute)

(ii) ICSID tribunals: 90 days & 3 years (Art 51 ICSID)

38
Q

What was the reasoning the ICJ adopted to conclude it could order provisional measures in The Gambia v Myanmar case of 2020 ? (5)

A

1/ prima facie jurisdiction

2/ standing of The Gambia

3/ rights whose protection is sought + link btwn those rights and measures requested

4/ risk of irreparable prejudice and urgency

5/ conclusion + measures to be adopted

39
Q

What are the 6 PMs The Gambia requested ?

A

1/ prevent active genocide

2/ ensure compliance with Genocide Convention

3/ refrain destruction of evidence

4/ non-aggravation of dispute

5/ reports on compliance measures

6/ access for fact-finders

40
Q

How did ICJ establish prima facie jurisdiction in The Gambia v Myanmar ? (3)

A

1/ Article IX of Genocide Convention (compromissory clause without conditions)

2/ existence of a dispute (statements in UNGA, note verbale)

3/ GAM filed application in its own name and under its own rights (so not as a proxy of OIC)

41
Q

How did ICJ establish GAM has standing in The Gambia v Myanmar ? (3)

A

1/ obligations in GC are erga omnes partes

2/ all States can thus invoke a claim in cases of non-compliance (and not only injured States)

3/ GAM hence did not have to wait for BANG to undertake judicial action and did not have to prove it was a specially affected State

42
Q

What is a question that arose from the ICJ’s approach to Gambia’s standing ?

A

How far can the approach recognizing standing based on obligations erga omnes partes extend ?

43
Q

What were the 2 rights GAM sought to protect ?

A

1/ rights of the Rohingya to be protected from acts of genocide and other related acts

2/ rights of GAM to seek compliance by MYAN with its obligations under Genocide Convention

44
Q

What are the justifications for ICJ’s finding that rights invoked by GAM are plausible ? (2)

A

1/ fact-finding missions + MYAN acknowledgements

2/ reports by fact-finding missions

45
Q

Did the ICJ find there was a link btwn plausible rights and measures sought by GAM ? (3)

A

1/ yes for 3 first PMs requests (preserve rights GAM asserts)

2/ yes for 4th and 5th PMs requests (but no link required bc secondary PMs)

3/ no for 6th request

46
Q

Did ICJ in GAM-MYAN consider there was a risk of irreparable prejudice and urgency ? (4)

A

Yes

1/ MYAN’s plans for improvement were not sufficiently concrete

2/ irreparable prejudice inherent in violation of rights invoked

3/ takes into consideration reports of FFM which concluded situation was urgent

4/ Rohingya were still severely vulnerable (stateless, disenfrancised, vulnerable to HR violations) –> urgency

47
Q

ITLOS reasoning in Arctic Sunrise case ? (3)

A

1/ prima facie jurisdiction

2/ rights which could be harmed

3/ urgency

48
Q

How did ITLOS find it had prima facie jurisdiction in AS case ? (3)

A

1/ NL argued jurisdiction bc both States were parties to UNCLOS

2/ RUS argued no jurisdiction bc entered a reservation to Article 298(1) not accepting compulsory procedures for certain types of disputes

3/ RUS argument rejected bc declaration under Art. 298(1) extends only to disputes excluded from jurisdiction under Art. 297 (related to disputes over marine scientific research or fisheries, which was not the case here)

49
Q

Why did ITLOS pronounce itself on the request for PMs and not an Annex VII arbitral tribunal ? (2)

A

1/ Article 290(5)

2/ allows for requests to be heard quickly as ITLOS is a standing institution

50
Q

For what purposes can PMs be ordered by ITLOS ? (3)

A

1/ Article 290(1) UNCLOS

2/ preserve rights of parties

3/ prevent harm to marine environment

51
Q

Was urgency criterion fulfilled in AS case ? (5)

A

Yes

1/ Article 290(5)

2/ aging icebreaker requiring maintenance -> threat to marine environment according to NL

3/ ITLOS held there was an urgent risk of irreparable prejudice to marine environment

4/ Cf. RUS not appear but could have given undertakings to maintain?

5/ right to liberty and security of crew at risk

52
Q

What did ITLOS order in AS case ?

A

RUS had to release vessel + detained persons upon issuance of a bond by NL

53
Q

Powers to grant provisional measures? (4)

A

1) Art 41 ICJ Statute
2) Art 290 UNCLOS
3) Art 26 PCA Rules
4) Art 47 ICSID Conv

54
Q

Can the ICJ prescribe PMs proprio motu?

A

1) Yes but very rare

2) LaGrand is only example

55
Q

Powers to permit counterclaims? (3)

A

1) Art 80 ICJ Rules
2) Art 46 ICSID Conv
3) Art 98 ITLOS Rules

International Dispute Settlement (7 decks)

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