1、Chapter 3 Dispute Settlement,Main Content And Concept Focus,Section A Means of Dispute Settlement,-Amicable Means和平手段 include : Diplomacy外交( negotiation谈判, good offices斡旋, mediation调停， conciliation和解, international inquiry国际调查) Adjudication司法(arbitration, judicial settlement),Section A Means of Disp
2、ute Settlement,-Non-amicable means include: retortion还报, reprisals报复, pacific blockade平时封锁，economic boycott or blockade经济封锁或 绝交, intervention干涉 -War,Section B Settlement of Dispute Through Diplomacy,1.Definition of A Dispute -A dispute, as defined by the Permanent Court, is “a disagreement over a po
3、int of law or fact, a conflict of legal views or interests between two parties”.,Section B Settlement of Dispute Through Diplomacy,2.Principle of International Dispute Settlement -In article2(3) of the UN Charter, it provides that all members shall settle their international dispute by peaceful mean
4、s in such a manner that international peace, security and justice are not endangered.,Section B Settlement of Dispute Through Diplomacy,3. Definition of Diplomacy -Diplomacy is the process of reconciling the parties to a disagreement by negotiation, mediation, or inquiry.,Section B Settlement of Dis
5、pute Through Diplomacy,4. Difference of the two approachesDiplomatic procedures by which the discussion and fact-finding methods may be used in the process of settlement between the two contending parties, sometimes with the aid of the third party, and adjudication by which a third party, always par
6、ticular judicial organs, is involved to determine the legal or factual issues concerned.,Section B Settlement of Dispute Through Diplomacy,5. Negotiation(1) Definition - Negotiation is the process of reaching an agreement by discussion. (2) Methods involved in negotiation - use of competent authorit
7、ies - establishment of mixed or joint commissions - summit meetings,Section B Settlement of Dispute Through Diplomacy,5. Mediation(1) Definition -A third party transmits and interprets the proposals of the principal parties and sometimes advances independent proposals. (2) mediation(调停)、good offices
8、(斡旋)、conciliation(和解) -When the mediators provide a channel of communication only, it is said that they are offering their good offices. -When they make a formal investigation and present a formal proposal, they are involved in a conciliation. (3) Examples,Section B Settlement of Dispute Through Dip
9、lomacy,6. Inquiry(1) Definition- the process by which an impartial third party makes an investigation to determine facts underlying a dispute without resolving the dispute itself. (2) History of Inquiry Commissions-The Hague Convention for the Pacific Settlement of International Dispute -A second Ha
10、gue Convention for the Pacific Settlement of International Dispute -Taft Treaties and Bryan Treaties,Section C Settlement of Dispute in International Tribunal Part1. International Court of Justice,1. Brief introduction of the ICJ （1）History of the ICJ -the Permanent Court of International Justice(19
11、20-1939)（2）Organization of the ICJ -obligations of the members of the UN and the ICJ -selection of the judges of the ICJ（3）Jurisdiction(管辖权) of the ICJ - cases between states (contentious jurisdiction) - cases requested by organs or specialized agencies of the UN (advisory jurisdiction),Section C Se
12、ttlement of Dispute in International Tribunal Part1. International Court of Justice,2.Contentious Jurisdiction(诉讼管辖权) Definition -the power of a court to hear a matter that involves a dispute between two or more parties. Important Principles - article 34 of the Statute stipulates that only states ca
13、n be parties before the ICJ - the court can only act in a case if the parties, both applicant and respondent, have conferred jurisdiction upon it by some voluntary act of consent (voluntary jurisdiction自愿管辖) -Apart from those instances where states specifically refer a dispute to it, the Court can a
14、lso exercise jurisdiction over disputes arising from international treaties where particular provisions which have been specified refer such disputes to the jurisdiction of the Court( conventional jurisdiction协议管辖) - a non-member of the UN could become a party to the Statute of the Court when it dec
15、lares to accept the obligations of the Statutes and Article 94 of the UN Charter,Section C Settlement of Dispute in International Tribunal Part1. International Court of Justice,3. Optional Clause Jurisdiction(任意强制管辖)(1)Definition - a unilateral grant of jurisdiction by a state to the ICJ that allows
16、 the court to resolve the disputes involving that state(2)Explanation -It allows states to make a unilateral declaration recognizing “as compulsory ipso facto without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes”
17、. 当事国可随时声明, 对于接受同样义务的任何国家，承认不需要另订协议而对各种法律争端接受国际法院的强制管辖.,Section C Settlement of Dispute in International Tribunal Part1. International Court of Justice,(3)Actual practice -There are only about 60 states that accept the optional clause jurisdiction of the Court. -A few states have put no restrictions
18、 on the kinds of cases they will respond to, such as Uganda. -Most states have added a wide variety of restrictions on the kinds of suits they are willing to let the Court hear without a special arrangement. A typical example is the declaration made by the U.S.A in 1946 which was terminated in 1985.
19、 -The declarations remain in force for a period of time and thereafter until the expiration notice may be given to terminate this declaration. -The disputes under the jurisdiction of the Court mainly concerns:(a) The interpretation of a treaty(b) any question of international law(c) the existence of
20、 any fact which, if established, would constitute the breach international obligations(d) the nature or reparation to be made for the breach of international obligation,Section C Settlement of Dispute in International Tribunal Part1. International Court of Justice,(4)Rule of Reciprocity - a state re
21、spond to a suit brought against it only if the state bringing the suit has also accepted the jurisdiction of the Court. That is, when both states have limited the jurisdiction that they will recognize, the Court has power to decide a case only to the extent that both agreed to the same sort of matte
22、rs. (Norwegian Loans Case. France v.Norway) (5) Self-Judging Reservations -a reservation that allows a state to exclude from the jurisdiction of the ICJ any dispute that it determine is a domestic matter. - Self-Judging Reservations is a double-edged sword, because the would-be defendant could invok
23、e the plaintiffs self-judging reservation. - The validity of self-judging reservations has been a matter of some speculation among legal writers. It seems to violate Article36(6) of the Statute of the Court.,Section C Settlement of Dispute in International Tribunal Part1. International Court of Just
24、ice,4. Advisory Jurisdiction(咨询管辖) Definition - the power of the ICJ to give opinions about issues of international law at the request the UN or one of its specialized agencies. Exception - The Court will reject a request for an opinion, if it has the effect of making a state a party to a dispute wi
25、thout the states consent. (the Western Sahara Case)5.Judgment (1)Concluding a case -A case can be concluded in one of the three ways(1)The parties informed the Court that they have reached an agreement, the Court will issue an Order() removing the case from the list.(2)if the applicant state withdra
26、ws its suit, the Court will order the case to be removed from the list. (3)the court will deliver a judgment.t,Section C Settlement of Dispute in International Tribunal Part1. International Court of Justice,(2)Effect of Judgments -Only the parties to a suit are bound by the courts decisions in respe
27、ct of that particular case. -The judgment is final and without appeal. -The Courts decision has no precedential value (i.e., the stare decisis does not apply). It is free from the earlier opinions. (3)Revision of Judgment -The parties can request the Court to revise its decision when some new fact c
28、omes to light that was not previously known by the Court or he party making the request. -Requests must be made within 6 months after the new fact is discovered and within 10 years of the delivery of the original judgment.,Section C Settlement of Dispute in International Tribunal Part1 International
29、 Court of Justice,(4)Compliance with ICJ Judgment -If a party refuses to comply with a judgment, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to give effect to the judgment.,Section C Settlement of Dispute i
30、n International Tribunal Part World Trade Organization Dispute Settlement,Brief Introduction to the WTO History and Function of the WTO -The WTO was established in 1995 and was modeled from the General Agreement on Tariffs and Trade. -Three main objectives (1) to help trade flow freely(2)to achieve
31、further liberalization through negotiation(3)to set up an impartial means of dispute settlement.(2)Position of the WTO under International Law -The WTO has international personality with its capacity of representing its own interests and rights and bringing claim when its rights or interests are inf
32、ringed. (3) Legal System Frame of the WTO - General Agreement on Tariffs and Trade - General Agreement on Trade in services - General Agreement on Trade-Related Aspects of Intellectual Property -the Dispute Settlement Understanding (the DSU),Section C Settlement of Dispute in International Tribunal
33、Part World Trade Organization Dispute Settlement,2.The WTO Dispute Settlement Procedures Step1:Consultation Step2.Mediation, conciliation, good offices Step3. Dispute Settlement Panel Step4.Appellate Body(1).Consultation and Third-Party Participation -A member is obliged to enter into a consultation
34、 within 30 days of being asked to do so. -If a member fails to respond to a request within 10days or fails to consult within 30 days, the requesting party can seek the establishment of a WTO DS Panel. -Besides consulting, the parties may, if each of them agrees, seek the assistance of third parties
35、in resolving their differences. Such assistance can take the form of mediation, conciliation or good offices.,Section C Settlement of Dispute in International Tribunal Part World Trade Organization Dispute Settlement,.(2)Dispute Settlement OrgansThe organs carrying out the Dispute Settlement Underst
36、anding are: (a) the Dispute Settlement Body (b) the Dispute Settlement Panel (c) the Appellate Body3. Enforcement Panel and Appellate Body reports adopted by the Dispute Settlement Body are enforced by the DSB. Should a state fail to comply with Panel or Appellate Body recommendations, the DSB may a
37、uthorize either the non-complying state to pay compensation or the injured state to retaliate.,Section C Settlement of Dispute in International Tribunal Part International Center for the Settlement of the Investment Disputes,1.Brief Introduction to the ICSID(1) Creation of the ICSID - The World Bank
38、 drafted the Convention on the Settlement of Disputes between States and Nationals of Other States (the Washington Convention) at Washington Conference sponsored by the International Bank for Reconstruction and Development (国际复兴开发银行）(the World Bank世界银行) in 1965， creating ICSID. This Convention was r
39、atified in 1966.,Section C Settlement of Dispute in International Tribunal Part International Center for the Settlement of the Investment Disputes,(2) Aim of Creating the ICSID -The underlying purpose of the ICSID is to encourage private investment in underdeveloped countries.(3) Organization of the
40、 ICSID -The ICSID has an Administrative Council (行政理事会), a secretariat( 秘书处) and two panels of experts （a panel of mediators and an panel of arbitrators).,Section C Settlement of Dispute in International Tribunal Part International Center for the Settlement of the Investment Disputes,2. ICSID Rules-
41、ICSID rules include Institutional Rules, Conciliation Rules and Arbitration Rules. -The rules of law that both the investor and the host state agree will apply. -If the litigants can not agree, then both international law and the state partys law are to apply.,Section C Settlement of Dispute in Inte
42、rnational Tribunal Part International Center for the Settlement of the Investment Disputes,-The most important basic rule established by the Washington Convention is that third party states, including the state of the investor involving in the dispute, are not allowed to intervene, unless the host s
43、tate fails to abide by the award rendered in the dispute. -States that are parties to the Washington Convention are not allowed to take up disputes on behalf of their nationals, unless the ICSID arbitration fails.,Section C Settlement of Dispute in International Tribunal Part International Center fo
44、r the Settlement of the Investment Disputes,3. Constituting an ICSID Arbitration Tribunal(1)Two preliminary steps to take before ICSID set up a tribunal to resolve a particular dispute (Jurisdiction of the ICSID) First, the host state and the state must both be the parties to the Washington Conventi
45、on. Second, the investor and the host state must both consent to ICSID jurisdiction. Besides, as a particular matter, the ICSID arbitration agreement should be included in every contractual arrangement between the investor and the host state. (2) Personal jurisdiction and subject matter jurisdiction
46、 (natural person, juridical person),Section C Settlement of Dispute in International Tribunal Part International Center for the Settlement of the Investment Disputes,(2) Selection the Arbitrators -The arbitrators may be any persons agreeable to the litigants. Mostly, they are nationals of states oth
47、er the state party to a dispute. (3) Place of Arbitration -After consulting the Secretary-general and with the permission of the arbitration tribunal of the ICSID, the proceedings can be held at any location.,Section C Settlement of Dispute in International Tribunal Part International Center for the
48、 Settlement of the Investment Disputes,4. Two Important Principles(1)Unilateral withdrawal is ineffective. -A state party can not withdraw a consent by filing a later reservation or by denouncing the Convention. (2) Exclusive Remedy -Giving consent to the jurisdiction to ICSID jurisdiction is deemed
49、 to exclude all other remedies. -This case can not be tried in a municipal or another international tribunal. - The investor can not turn to the home state for diplomatic protection.,Section C Settlement of Dispute in International Tribunal Part International Center for the Settlement of the Investm
50、ent Disputes,5. Awards -Awards issued by an ICSID tribunal are binding but not final. -The tribunal can review an award either to interpret it or to revise it. -Appeal is also allowed to an ad hoc committee that has the power to annul an award. ( The ad hoc committee consists of three members appointed from the Panel of Arbitrators by the Chairman of the Administrative Council.,
