Suchergebnisse

Abstract
The contribution looks into the circumstances under which states can held be responsible for the content of judgments rendered by their courts pursuant to the denial of justice standard. The standard has received increased attention in the context of investor-state arbitration, where it has become widely used as a measure for determining the propriety of judicial conduct. Although ostensibly claimed to concern solely the propriety of judicial procedure, in the practice of investment tribunals, the standard has no less frequently been applied to measure the substantive adequacy of domestic courts' judgments. The contribution examines this emerging practice by mapping the jurisprudence and evaluating the nature of arbitral tribunals' scrutiny. It also sets out certain normative considerations that should guide the tribunals' assessment of whether or not a particular judicial outcome is an adequate one from the standpoint of international standards of administration of justice. The contribution advances three arguments: first, that judicial decisions, as the final product of the domestic adjudicative process, can properly be the object of scrutiny by arbitral tribunals; second, that the task of arbitral tribunals must be limited to determining whether the particular decision is supported by adequate reasoning, and does not extend to inquiring whether the substantive outcome – i.e. the judicial decision on its merits – is also reasonable as such; and third, that the substantive review performed under the denial of justice standard necessarily requires the application of deferential standards of review.

AbstractThis article examines the notion of judicial takings in international law and its reflection in the practice of investment tribunals. It takes stock of the already significant body of arbitral jurisprudence dealing with expropriation claims grounded in, or relating to, the acts or omissions of courts, with a view to developing a coherent theory of judicial expropriations. It is suggested that, due to the courts' specific role in the determination of the underlying proprietary rights that are the very object of international legal protection, judicial measures warrant different conceptual treatment from measures by other State organs. Traditional approaches to expropriation analysis do not take this sufficiently into account and therefore do not provide adequate tools for distinguishing legitimate judicial measures from undue interferences with investors' rights. It is argued that a sui generis approach is hence needed: where proprietary rights are primarily affected by the impugned judicial action, it is first necessary to determine whether such action is itself wrongful under international law, for only then can it be treated as an act of expropriation. However, the proper analytical approach will ultimately depend on the circumstances of each case and traditional approaches, such as the sole effects doctrine, may still be appropriate where the judicial injury actually flows from wrongful legislative or executive conduct.

AbstractThe article discusses the increasing use by international courts and tribunals of domestic explanatory materials—such as various statements, reports, and explanatory memoranda that usually complement the domestic approval of treaties—in the process of treaty interpretation. After examining the types of materials that can be used as interpretative aids in accordance with the general rules on treaty interpretation (Articles 31–32 VCLT), the article scrutinizes the various ways in which domestic explanatory materials have informed the interpretation of treaty provisions in the practice of international adjudicatory bodies. The analysis focuses on the legal grounds on which such materials have been admitted in the interpretative process, the reasons for which resort has been made to them by the adjudicating body, as well as the circumstances in which such documents have been invoked by the litigating parties. The article then discusses certain advantages and disadvantages stemming from the use of domestic explanatory materials in the interpretative process.

"This rich collection focuses on the broad research interests of Professor Nico Schrijver, in whose honour it was created. Written by a wide range of international scholars affiliated with Leiden University's Grotius Centre for International Legal Studies, the essays reflect Professor Schrijver's important contribution to academia and practice, particularly in the fields of sovereignty, human rights and sustainable development. The authors aim to reflect on changes in international law and on new developments in the diverse fields they explore. "Furthering frontiers" is the research theme of the Grotius Centre. Its exploration in this thought-provoking volume is a fitting homage to Nico Schrijver's achievements on the occasion of his retirement as Chair of Public International Law of Leiden University"--