Empirical and Theoretical Perspectives on International Law: How States Use the UN General Assembly to Create International Obligations
In: The Australian yearbook of international law, Band 41, Heft 1, S. 356-363
ISSN: 2666-0229
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In: The Australian yearbook of international law, Band 41, Heft 1, S. 356-363
ISSN: 2666-0229
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In: King's College London Law School Research Paper Forthcoming
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In: ICSID review: foreign investment law journal, Band 36, Heft 3, S. 488-497
ISSN: 2049-1999
In: American journal of international law: AJIL, Band 114, Heft 4, S. 735-743
ISSN: 2161-7953
This dispute, brought by Canada against the United States, constitutes another chapter in three separate sagas: the enduring softwood lumber dispute between the two North American nations; the debate over the acceptability of the practice of "zeroing"; and the fight over the value and role of World Trade Organization (WTO) Appellate Body precedent. Notably, the panel departed from established Appellate Body decisions finding, inter alia, that zeroing was permissible under a weighted average-to-transaction (W-T) methodology. This departure is remarkable, not just because it runs counter to prior jurisprudence, but also for the reasoning supporting it and the circumstances in which it occurred. Indeed, the Panel Report was issued in the midst of a crisis of the WTO dispute settlement system arising from the United States' decision to block the reappointment of Appellate Body members. The United States justified this action, which eventually resulted in the Appellate Body losing its quorum to hear new appeals on December 10, 2019, on the basis of complaints, among others, that the Appellate Body had championed an approach to precedent that the United States found incompatible with the intended role of dispute settlement within the WTO. While members worked feverishly to formulate a compromise that might respond to the United States' criticisms and soften the effect of the Appellate Body's approach, the Panel suggested its own. Thus, it found room to depart from prior precedent (which the United States argued had been wrongly decided) while paying lip service to the Appellate Body.
In: Forthcoming in Eric de Brabandere et al (eds), Comparative Procedure in State-to-State Disputes (CUP 2020)
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In: Forthcoming in ICSID Review—Foreign Investment Law Journal, Published by Oxford University Press.
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In: American Journal of International Law, April 9, 2019
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Working paper
In: Niccolò Ridi, The Shape and Structure of the 'Usable Past': An Empirical Analysis of the Use of Precedent in International Adjudication, Journal of International Dispute Settlement, Volume 10, Issue 2, June 2019, Pages 200–247
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In: Forthcoming, Journal of International Dispute Settlement
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In: The British yearbook of international law
ISSN: 2044-9437
In: Niccolò Ridi, Precarious Finality? Reflections on Res Judicata in the Question of the Delimitation of the Continental Shelf Case (2018) Leiden Journal of International Law
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In: European journal of international law, Band 27, Heft 2, S. 545-551
ISSN: 1464-3596
In: Vasilka Sancin & Maša Kovič Dine (eds), Responsibility to Protect in Theory and Practice (GV Založba 2013) 653
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In: The international & comparative law quarterly: ICLQ, S. 1-40
ISSN: 1471-6895
Abstract
The relationship between scholarship and adjudication has attracted considerable attention in recent years, especially in those areas where significant academic expertise has been developed and academic scrutiny of decisions is common. Yet the role of scholars and scholarship in the context of the adjudicatory practices of the European Court of Human Rights (ECtHR) has remained palpably under-investigated. This article begins to fill this gap in the literature by carrying out the first large-scale empirical study of the use of scholarship by the ECtHR. The authors rely on a purpose-built dataset comprising all the citations made by the Grand Chamber of the Court in judgments and separate opinions appended to it. The study finds that the Court's majority uses scholarship for the purposes of reviewing facts and interpreting international and domestic law but does so rarely. The majority of the ECtHR does not use scholarship to interpret the European Convention on Human Rights or for persuasive purposes, unlike the individual Judges in their separate opinions. Indeed, individual Judges refer to scholarship more often, for more varied and arguably different purposes. This use, however, is inconsistent in terms of both frequency and the types of sources referred to.