*Normative Legitimacy: the goal is to figure out what features give international courts the "right to rule" or justify

their power.

*How is legitimacy established? A "legitimate" international adjudicative body is one whose authority is widely accepted.
It's hard to prove that something is legitimate, but it's a lot easier to prove that it isn't. Illegitimacy is defined by a number of
elements, including prejudice, excessively unfair decisions, and results that, for example, violate fundamental human rights. Based
on this, an IC is legitimate when it is 1, fair and unbiased; 2, interprets and applies norms in accordance with IL, 3, is transparent
and open.
It's noteworthy that legitimacy perceptions may shift over time. Actors' opinions on a court's legitimacy might change before or
during litigation, during dispute settlement, or after it renders a ruling. Events that occur after consent is granted, especially if a state
consented in a treaty that was signed several years before a concrete case emerged, may have an impact on perceptions of
legitimacy. A state may even choose to revoke its consent to a tribunal's jurisdiction. Following an adverse judgement in the Case
Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), the United States withdrew its
consent to the ICJ's compulsory jurisdiction, and Bolivia withdrew its consent to ICSID adjudication in May 2007.

*Why is legitimacy important? If an international court is perceived as illegitimate, it might be defunded, its judgments ignored, or
its rulings rendered meaningless. While legitimacy is not the only normative measure by which international courts may be
assessed, it is one of the most important. It explains why a state should respect a court's decision even if it goes against the state's
perceived interests. Their legitimacy should thus be protected to guarantee their function to settle international disputes. An strong
legitimacy increases the likelihood that actors will follow courts' judgments, since if a court is seen as legitimate, the public will
demand that its judgements be followed and will condemn a state if it does not.

*What is required to legitimise a court? It varies based on the amount of authority it wields, the type of authority it wields, and the
types of matters it has jurisdiction over. A court can strengthen its legitimacy by making well-reasoned judgements that appear to be
bound by the law and necessitate acts that the public considers acceptable. The public's understanding of the character of a court's
judgements gradually erodes its credibility. A court's legitimacy is determined not only by its actions, but also by the reputation of the
judges who sit on it. When judges are held in high regard, the public is more inclined to see a court's decisions as fair and
legitimate, increasing the court's legitimacy.
One approach is to demonstrate the Court's impartiality to the parties. International courts engage with national courts and can work
with them to ensure that their rulings are followed.

*Input/Output Jurisdiction: State consent and procedural fairness to litigants fall into the input and process categories,
respectively, while justice is linked to outputs. The recruitment and appointment of judges, the independence of the judiciary, the
administration of the judicial organization, and institutional elements in general are examples of input-factors. Decisions and their
motive, court production, and communication with the persons concerned are all examples of output-factors. This difference will be
important in describing the various sources from which different courts derive their legitimacy.

*Input Legitimacy: could be increased by e.g. opening up the recruitment process and boosting the diversity of the court. This is
important for two reasons: 1, the selection procedure should adhere to fair and democratic decision-making criteria; 2, it should lead
to a more capable and diverse court. It is critical that e.g. members of a court come from a variety of backgrounds to reflect the
racial and gender composition of the globe: the purpose for this is not only to demonstrate the need of democratic involvement in a
pluralistic society, but also to demonstrate that the court is accessible to everyone (not only in theory, but also in practice).

*Support: The public's perception of IC is influenced in part by their contentment with specific policy results over time. This is called
the 'specific support' and is with time correlated with the support for institution itself, called "diffuse support", i.e. whether at this point
the public is generally disposed to accept a court's decision, even if they disagree with a specific judgment. Hence, over time,
contentment with certain outcomes may have a major impact on legitimacy.
In this case, it is conceivable that a IC's legitimacy will erode over time if it issues judgements that are adverse to an international
actor's interests and values.
However, in an int-l actor sees benefits to remaining loyal to the IC and feels that the latter's decisions are justifiable morally, his/her
commitment to the normative regime may grow. States may, for example, continue to accede to adjudication in human rights bodies
notwithstanding unfavorable rulings because they are devoted to human rights and their sense of justice or morality forces them to
do so, or because they want to maintain the appearance of such a commitment.

*Does criticism affect legitimacy? Criticism does not always imply that a State will not comply with a IC's decision in the future.
So critiques have less impact on the Court's reputation than non-compliance, but they may reveal flaws in the Court's reasonings
and judgments, undermining its credibility and making it look biased and unfair.
When compared to low-reputation states, high-reputation states, i.e. states that are normally expected to follow a court's decisions,
are in a stronger position to threaten a court with criticism. When a high-reputation state criticizes a court, the legitimacy of the court
is harmed more than when a low-reputation state criticizes it, because the criticism is seen as more credible by the international
community. If a high-reputation state persuades its own citizens to oppose a court, it may also refuse to obey the court, causing the
court's reputation to suffer more harm than a low-reputation state's non-compliance. One option for a court to respond to the
increased risk posed by criticism of high-reputation governments is to exercise greater discretion in dealing with them and to avoid
endangering their interests. Greater constraint in favour of high-reputation nations, on the other hand, might signal that a court is
prejudiced against them. This can jeopardise a court's legitimacy, which is based in part on the court's principle of impartiality.

*Interaction with national courts: By rendering judgements that an international court can rely upon, national courts can
strengthen support for the international court's decisions. This guarantees that IC is not engaging in judicial activism but following
judgments of national courts themselves. ECHR has engaged in this behaviour when it followed legal decisions of the House of
Lords on the same matters it issued judgments on.
When a national court relies on an international court's decision, it means it accepts the decision and deems it to be legally
accurate. This strengthens the international court's legitimacy. Even if a national court mentions an international court that has no
authority over it, the international court may obtain legitimacy as a result of the citation. A reference to an international court's ruling
demonstrates a respect for the quality of the court's decisions, which might sway public opinion in its favour.
The more credible a national court is in the eyes of home state and international audiences, the more it may contribute the
legitimacy of international courts. National courts that are not bound by the ECtHR's rulings, for example, are increasingly citing it.
*Reasoning: If judges want to strengthen the court's legitimacy, increasing judicial discretion gives them more possibilities. The
international community is more inclined to endorse a judgment if it appears to be based on the law, and more likely to criticise a
judgment if it is not constrained by law (this may also lead to non-compliance). The strength of a decision is determined by a mix of
particular support for its substance, the court's legitimacy, and the reasoning applied. Thus, striking a balance between legitimacy
and reputational interests is necessary when formulating the reasoning for judgments.

*Dissenting opinions: Discouraging disagreement among judges may create an illusion of legal soundness. If all of the judges
unanimously agree on a ruling, it means that the law doesn't provide them any other option, and decisions that appear to be
constrained by the law receive a higher degree of compliance. Judges should thus strive to reduce disagreement, particularly when
making contentious judgements.

*Legitimacy v Legality: Legitimacy is a much broader concept than legality. While legality is one conceivable rationale for
exercising authority, it is far from the sole criterion used to evaluate how institutions execute their power. That is why it is significant
to explain that Kosovo was unlawful but nonetheless legitimate, because the criteria for legitimacy and legality are not identical.
Legitimacy, as opposed to legality, is used to describe a decision based on values other than those of legal and regulatory
requirements. Moral concepts such as the protection of human life and dignity are among these values. In light of these principles,
"legitimate" denotes a sense of acceptability. Is it more lawful for a judicial body to be founded on a treaty or on a Security Council
Chapter VII resolution?

*Indicators of legitimacy of a judgment: 1) Determinacy, i.e. a text's ability to communicate a clear message. IC decisions may
fail this criteria if the operative component is ambiguous, avoids clearly addressing the issues posed to the adjudicating body and
the reasons cited are difficult to grasp, leaving room for multiple interpretations. The validity of a decision is harmed by a lack of
clarity.
2) Coherence implies that outcomes of litigations are foreseeable in light of past rulings and decisions since similar cases are
addressed and solved similarly.
3) Adherence includes the fact that IC was created in accordance with legal norms and that it is competent under those laws.

*Why would an actor follow directives? a) The addressee of the decision is reasonably convinced that the decision is legally
sound and correct, and regards the decision-making process as legitimate (e.g. member state is certain that sanctions are
appropriate);
b) it is afraid of negative implications of non-cooperation or non-compliance. Example: in a WTO dispute, even if the losing party
believes the decision was reached improperly, it may nonetheless comply with a WTO judgement because if it does not, the
opposing side can respond with trade measures. For example, in the 1980s, Japan accepted the International Whaling
Commission's commercial whaling ban not because it believed the moratorium was justified, but because the United States
threatened to put economic sanctions on Japan if it did not comply.

*Social Legitimacy: The foundations of social legitimacy may or may not be universal. They may differ along a variety of lines
amongst actors. For example, government actors may hold different points of view on legitimacy than members of civil society. They
may place a higher priority on sovereignty and consent, whereas civil society organizations may prioritize cooperation and
transparency. Therefore, elements that may assist legitimize an institution in the eyes of non-state players may work against it in the
eyes of state actors.

*Fair & Unbiased Nature: Requirements = core set of provisions guaranteeing (1) fair process; (2) impartial, competent, and
independent individual adjudicators; (3) impartial and independent benches and panels; and (4) unbiased secretariats and
registries.

**Fair Process / Procedural Fairness: One factor that may impact actors' opinions of a court's legitimacy is whether or not it
allows litigants to be heard on both procedural and substantive issues. Procedural fairness is an important component of legal
adjudication because it permits open-minded judges to hear the perspectives of the parties whose rights and responsibilities are at
issue on an equal footing. IC must give fair and unbiased opportunity for all parties to submit their arguments. In this regard, I
believe it is important to let non-state actors advocate for their rights. The power of a state to access and participate in court
proceedings on behalf of its citizens does not preclude the need for nonstate actors to represent themselves. To begin with, there is
no assurance that their viewpoints will be heard. Governments may be undemocratic, or, even if democratic, governed by a small
group of elites with special interests that are incompatible with the interests of the majority of the population.
Other than that, some courts have specific timelines and directives for meeting them, whereas others do not. The International
Court of Justice, for example, has no stated time restrictions for submitting pleadings or issuing rulings -> liberal timeframes
established in ICJ cases have led to criticism of the Court's impartiality and efficiency when cases stretch on for years. However, the
capacity to adjust to political conditions and find a negotiated settlement may be enhanced if deadlines are flexible.

**Unbiased Adjudicators, Benches, Panels: International actors will see the judicial institution as deficient in justifiable authority if
they believe decision makers are unjust or prejudiced. Hence, individual adjudicators, benches, and panels must be both
independent and impartial. These categories may be assessed based on the extent to which individual judges are sympathetic to
interests of their home state; transparency of the selection/nominating/appointment processes, required qualifications, personal
traits, tenure, etc; 3) procedural fairness towards state parties (IC can demonstrate its impartiality by e.g. issuing rulings that
represent a compromise between the parties' interests).
Even treaties establishing ad hoc tribunals feature rules aimed at ensuring judicial independence and impartiality. Though, in reality,
permanent courts, in which adjudicators are chosen by a community of nations before a specific issue arises, are ultimately less
"effective" than dispute resolution methods in which parties to litigation pick their adjudicators. This may be explained through the
claim that independent courts tend to disregard sovereignty, thus lowering chances of compliance and successful resolution of a
dispute. States' selection practices (election vs. appointment) may strengthen or reduce impressions of individual adjudicators' bias,
as well as perceptions of the underlying institution as "political" or "judicial," altering assessments of legitimacy. If an adjudicator is
chosen by a group of states and knows which states voted for whom, he or she may be viewed as "owing" something to those
states.
I believe since independence and impartiality, along with the "high moral character", are largely vague and unprovable
requirements, a greater emphasis should be made on substantive knowledge of a particular field of law and a certain level of
expertise in it.

**Equal treatment from registrars & secretariat: Secretariats are an extension of the tribunals themselves, and they play a vital
role in ensuring that nations are treated equally and that they have access to the same information.

**Transparency: A "transparent" court is one where parties may observe its procedures from both inside and outside the judicial
process. The aim is to allow interested parties to assess how a IC makes decisions and functions, since If the courtroom doors are
sealed, observers cannot judge whether a tribunal and its adjudicators treat the parties fairly and impartially. Open hearings allow
observers to monitor how procedural norms are applied, such as how much time each side is given to present its case and if the
judicial panel treats both parties with respect. Open hearings and published opinions in accessible languages, as well as information
about the secretariats' operations, are examples of transparency procedures. The fact that the sessions are open demonstrates that
neither the parties nor the tribunal "have anything to conceal." As a result, increasing openness of the institution may aid in
enhancing its credibility.
Transparency is not taken in the same way by all tribunals. The European Court of Justice, for example, has no concurring,
dissenting, or separate opinions, and its decisions are unsigned and do not provide vote counts. On the other hand, all of these
components may be found in ICJ opinions.
Transparency may impact actors' behaviour in two ways: 1) First, simply knowing that they are being watched may influence
behavior: "[t]ransparency regulates by deterring actions that are unlikely to withstand public scrutiny." [FN217] In other words, if
judges and arbitrators are aware that their opinions will be read and reviewed, they will think twice about writing them down. The act
of publishing causes arbitrators and judges to be more careful and sensitive to the context in which they are working. Similarly, if
they are aware that they are being watched, representatives of domestic constituencies or shareholders would examine their own
disclosures and legal strategy through a different lens. When a hearing is open to the public, litigants have more than one audience
to please: the IC.
Some international players may be less willing to authorize tribunals to resolve their conflicts as a result of transparency. For
example, open hearings or other transparency measures may be inconvenient, expensive, or increase the vulnerability of
information that litigants may prefer to keep private.

*Normative Regime: refers to the 'law' that IC might apply to a dispute involving a certain substantive domain, such as e.g. human
rights or property rights (in investor-state disputes). Treaty provisions are subject to new interpretations throughout time, typically in
response to nations' acts and understandings of what constitutes binding IL, court judgments, publicists' publications, and other
actors' actions and ideas that impact the sources of IL.

**Legally sound norms: Rendering judgments without proper justification may jeopardise IC's legitimacy, since such judgments
may be seen as overly political and prejudiced rather than authoritative or binding. If no explanation accompanies decisions, it is
difficult, if not impossible, for a state or other party bound by a normative regime to determine conclusively what legal requirements
are, or how they may be implemented and enforced, much less if they were formed in a legally sound manner.
Rulings and judgements must both align with interests and values and use a type of legal reasoning or language that is widely
acknowledged by litigants and states parties, to be perceived as authoritative.

*Inconsistency: States have constructed appeal channels for various adjudicative bodies to avoid inconsistency. The WTO's
Appellate Body, for example, reviews appeals on legal grounds from panel rulings, while ICSID does not have an appeals
mechanism, and the system has been chastised for making inconsistent rulings.

*State Consent: IC's authority is legitimate as long as it's derived from the consent of states. When States consent to submit to a
court's jurisdiction, they do so under a range of conditions regarding IC's authority. When states submit to the jurisdiction of a court,
they do so under a specified set of conditions and expectations of the court’s power. These conditions are established in a court’s
statute or in an arbitration agreement or compromis. For example, states may prescribe the sources of law that a court must rely
upon. Art. 38 Statute of the ICJ contains the canonical list of the sources the court “shall apply." The Court must therefore act
within its jurisdictional limits, not ultra vires. Using another source of law would amount to violating the limits set by the States, and
IC's authority would be rendered unjustified. The consent of States is therefore key to IC's authority.

*Misconceptions: It's wrong to assume that IC can only impact the parties involved in a specific case, and that the principal
function of IC is to settle one-time disputes between actors and that the consequences of a ruling are restricted to the litigants of the
case in question. First, IC have the power to shape prospective obligations of all actors of IL, not just those that were parties to the
dispute. It produces law that is later on used by other courts, its judgments influence the advancement of IL and politics. The law-
making function of IC cannot be ignored.
Second, IC judgments do have an impact on non-litigating states. Engaging in law-making activities and creating norms enforceable
on all states should render a court illegitimate, according to the classic state consent theory. However, if a court's duty is to promote
human rights, a ruling that advances human rights, despite of or even because of its impact on non-litigating states, may be
legitimacy enhancing.

*What kind of rights require a hearing, since IC lack the authority to make judgments concerning violations of domestic
law?
Individuals have a variety of rights and responsibilities under domestic laws, as well as rights and responsibilities drawn from many
areas of IL, such as human rights, investment, and criminal law. A hearing in an international court is only required when an
international court is adjudicating an individual's rights under IL.
Several international human rights treaties define a slew of rights, many of which are phrased in equivocal or ambitious language.
Interpretation is therefore important.

*Jus cogens: IL forbids nations from breaking a fundamental set of HR protections, regardless of circumstances. States are not
allowed to commit genocide, enslave, torture or discriminate based on race. As a result, an IC's power is justified when it assists
states in complying with these limitations and when it considers them while making judgments. International courts can assist states
in complying with these requirements by bringing disputes from the battlefield to the courtroom, forcing state decision-makers to
consider their actions through the prism of IL rather than politics, and likely increasing costs of noncompliance through judicial
judgments and orders. International courts would be devoid of credibility if governments did not do any better in the absence of
these human rights safeguards.

*Provisional measures: the purpose is to safeguard any party's rights while a suit is pending, to avoid the dispute from expanding
or deteriorating. Such restrictions were enacted to address an issue that might occur as a result of the complicated, often lengthy
nature of international court processes, and to prevent an ultimate decision from becoming meaningless in whole or in part once
delivered. To guarantee that the court ruling is effective, it is vital to prevent either or both parties from exacerbating the situation
and to protect the disputing parties' respective rights awaiting the court's final decision.

*Consistency: The problem of consistency concerns, roughly, the question of whether adjudicatory bodies are addressing the
same or comparable legal or factual matters in the same or similar way in subsequent instances. Consistency may promote
security, predictability and validity, as well as decreasing expenses and frequency of dispute settlement A decent degree of
consistency is also crucial for a conflict resolution system's validity and perceived fairness. When comparable cases aren't settled in
the same way, public trust in the system is eroded. Legitimacy can be jeopardized by concerns that discrepancies across parties,
states, and situations are not random.

*Normative criteria for legitimacy: The Court must be neutral, in the sense that it must not favor one class of litigants over
another; it must be legally sound, in the sense that it must not interfere with political authority; and it must be open in the sense that
it must argue in length and explicitly how it arrives at a conclusion.

*Bias: The most essential predictor of chronic prejudice on a bench or panel... is not the panel's structure or nationality rules, but
rather the institution's track record. It is likely to be perceived as biased if the adjudicative body constantly rules in favour of one
class of litigants, or even one claimant. The idea that the scales are unfairly skewed in one direction weakens the credibility of
adjudicative organisations. Bias can occur at the level of a whole court or at the level of individual judges, it is worth noting. 30 Bias
can occur along a variety of dimensions, including possible biases in favour of strong or weak governments, more integration or
respect for national sovereignty, worker or employer rights, and so on.
Bias may take three main shapes: national bias (in favour of a certain state), integrationist bias (in favour of power centralisation at
the price of national sovereignty), and neoliberal bias (in favour of business and deregulation at the expense of labor and national
social regulation). The most apparent possible source of bias among international courts is national: one might argue that
international courts as a whole are prejudiced in favour of the most powerful states in the system43, or that individual judges are
biased in favour of their home countries.

*Effectiveness: The establishment of the goals against which effectiveness is evaluated must be the beginning point for analyzing
the effectiveness of any institution. As a result, we should start by describing the aims of a court's mandate-providers.

Legitimacy has been traditionally associated with the right to rule. If an institution is legitimate, it has the right to rule over
the people subject to it. What does this right to rule entail?
Different conceptions of legitimacy respond to this topic in different ways. All of them, however, choose one of two approaches:
binary or scalar. Binary -> If an institution is authoritative, such that, if its choices give content-independent justifications for action, it
is legitimate. Another view is that those who choose to defy a valid institution, for example because they believe a certain decision
made by that institution is wrong, must nonetheless bear the punishment imposed by that institution.
Scalar -> A court's overall legitimacy is determined by four dimensions or subscales of legitimacy: a) pedigree legitimacy (how an
institution is created, how it can be subject to reform or control, and who controls it); b) structural legitimacy (internal design,
structuring, member selection, concrete powers granted, the amount of resources allowed to accomplish such ends, transparency
and accountability, and so on).
c) output legitimacy -> Institutions can also be more or less legitimate depending on the influence they have on the world in which
they function, i.e. the outputs they create. In turn, there are two sorts of outputs. The first is measured by the quality of the direct
results, which are often the institution's rulings, as well as the substantive correctness—or justice—of such decisions, as well as
their efficacy, efficiency, and indirect effects. The second type of output is evaluated based on the long-term intended or unintended
consequences of having such an institution operating as well as its outcomes; d) systemic legitimacy -> Institutional legitimacy is
also affected by the institutional system in which they are placed as well as the role they play within a larger system.
Impartiality, for example, and an appropriate selection of its members based on professional qualifications, as well as suitable
internal processes or resources, are crucial characteristics of structural legitimacy. Output legitimacy, on the other hand, is derived
from the substantive validity of a court's judgements, as well as whether they are stable and contribute to the rule of law, among
other factors. Systemic considerations are also important: even though courts are not self-governing entities, they must operate
within the framework of a democratic system in which the legislation they enforce was adopted by an elected legislature. Similarly,
how courts engage with other institutions in this sort of system in order to meet the demands of the concept of separation of powers
may add to their democratic legitimacy.

ICJ *Jurisdiction, 3 ways: through special agreement (parties to a dispute give their consent to the Court's jurisdiction in advance);
through a treaty (treaty stipulates that if a dispute arises under the terms of the treaty, ICJ will have jurisdiction; e.g. Vienna
Convention on Consular Relations); unilateral declaration under the optional clause (Art. 36.2; States are not required to identify
which of the four kinds of conflicts described in the provision they accept).

*Composition: […] This frequently necessitates multiple rounds of voting. In the GA, 193 Member States are electors, hence 97
votes constitute an absolute majority. The SC has an absolute majority of eight votes and there is no distinction between the votes
of permanent and non-permanent members. Voting takes place in both organs simultaneously but separately.
In order to ensure a certain measure of institutional continuity, five judges are elected every three years.
There are no restrictions on nationality, however, 1) there may not be more than one national of the same country in the Court, and
2) the Court follows an ethno-cultural mix to guarantee that it's reflective of the world's "major types of civilisation and principal legal
systems"; thus it's required that 3 of the 15 judges come from Africa, 2 from Latin America and the Caribbean, 4 from Asia, 4 from
Western Europe and other states, and 2 from Eastern Europe.
Despite the fact that no country is entitled to membership, ICJ has always included judges of the nationality of one of the permanent
members of SC. Right now, 4 judges of ICJ come from 4 permanent members, with two holding the Presidency and Vice-
Presidency (USA and Russia, respectively). However, this does not mean judges are representatives of their governments. ICJ
members are independent judges who make solemn declarations that they would execute their powers impartially.
A "national" judge, a judge who is a national of a State party to a dispute, sits on the bench and, if necessary, is balanced by an ad
hoc judge selected by the opposite side - an arbitral rather than judicial method.

*Why is advisory jurisdiction not popular? Organisations with the authority to obtain advisory opinions have their own legal
counsel which will be reluctant to seek a second, perhaps a different opinion, unless there are exceptional circumstances.

*Differences from PCIJ: ICJ is PCIJ's legal successor, and like its predecessor, has a dual role: to settle legal disputes brought
before it by States in line with IL, and to provide advisory opinions on legal questions submitted to it by the UNGA, UNSC and other
authorised organs and agencies. ICJ's Statute is practically identical to PCIJ's, however, there are some differences: 1, ICJ's Statute
is an integral part of the UN Charter. PCIJ's Statute was an international treaty. 2, the provisions of the ICJ's Statute regulating the
election of five judges every three years by the GA and SC differ from those of the PCIJ's Statute. 3, ICJ organises chambers to
deal with specific issues laid down in Arts. 26 & 27 of the PCIJ Statute (labour cases, cases relating to transit and communications).

*PCA v ICJ: In terms of jurisdiction, the PCA differs from the ICJ because, although the PCJ relies on arbitration, ICJ relies on
judicial settlement. Since its inception, the PCA has reviewed matters involving IOs, private entities and individuals in addition to
interstate disputes. Nonetheless, arbitration lacks serious sanctions and hence this method is not suitable to solve disputes between
states.

*Should UN's main judicial organ should serve as the international community's top court? Do ICJ decisions have a
special normative effect on the international plane as a result of its status?
Q1: In theory, yes, since IL evolves, there will undoubtedly be a need for more diverse types of tribunals (judicial or quasi-judicial),
and there is always one court that is the supreme court and hence the ultimate legal authority. The ICJ may be known as the "World
Court," but there is no such thing as a world government: there is no global legislative or executive branch. As a result, the process
through which ICJ decisions impact state behaviour must be distinct from the mechanisms working inside a national legal system.
But ICJ operates in isolation and hence is not in a position to be a supreme court in respect to other courts, because it lacks formal
relations with those other courts. ICJ has also not been assigned a role equal to that of a national supreme court, owing to the fact
that it has jurisdiction only to the degree that states consent to it. Moreover, Art. 38 refers to judicial decisions in general and does
not place hierarchical primacy on ICJ rulings over those of other international courts. Yet, ICJ's judgments are increasingly garnering
authority among the international community (IOs, states, international arbitral tribunals, int-l lawyers).

*Is ICJ a permanent institution with universal jurisdiction? The aim of a universal, compulsory jurisdiction over interstate legal
disputes is politically difficult, if not impossible, to achieve. ICJ’s authority (jurisdiction) is ultimately based on the consent of states.

*Critiques // Limiting factors on the Court's functioning

1) Consent-based jurisdiction. While compulsory jurisdiction applied to 60% of states in 1950, currently, it applies to less than 35%.
2) ICJ can only deal with disputes of legal nature. Thus, disputes with a high degree of political or ideological substance will not be
resolved in legal terms.
3) States are very reluctant to expand the ICJ's jurisdiction to render binding decisions.
4) When ICJ renders judgment and the dispute brought before it is deemed resolved, ICJ no longer has jurisdiction. It therefore
cannot monitor state compliance since it does not receive information from the parties systematically. This makes it hard to assess
ICJ's effectiveness in terms of state compliance.
5) Only States may be parties before the Court, there are no redress options for others. But individuals, organisations and legal
entities are now directly affected by big areas of IL, incl. those concerning international trade, law of the sea, and the environment.
As a result, in situations when e.g. minority groups are exploited by their government, they are unable to seek redress through the
ICJ.
6) ICJ is frequently at mercy of UNSC. Permanent members have the right to veto any attempt to implement an ICJ ruling.
7) It is also a pawn of great powers, since it cannot appease major powers who will not be defied.

*Authority: The Court resolves disputes brought to it by States, in conformity with IL. It has the authority to issue advisory opinions
on legal questions to UN organs and agencies. It's a first and last instance court. It examines evidence, clarifies the law, ultimately
rendering a decision on the law.
The greatest approach to sustain and strengthen the Court's authority and use of it is to ensuring that its judicial output is of the
highest quality and that its processes meet the demands of today's litigant States. These processes are being reviewed in order to
expedite the resolution of cases. The Court, on the other hand, is severely underfunded, understaffed, and underpublicized. The
inability of Member States to pay their United Nations assessments has harmed its operations, as well as those of other United
Nations institutions.
ICJ's judgments are more frequently being treated/accepted as law in diplomatic correspondence and in decisions of international
arbitral tribunals, possibly more frequently than conventional sources of IL, such as custom and general principles, which have not
yet been authenticated by an ICJ judgment.

*Effectiveness: Focusing solely on disputes is not right since ICJ is required for more than only interstate disputes; e.g. when the
UN needs an opinion on legal questions, they turn to ICJ. Thus, ICJ’s effectiveness should be measured less in terms of its efficacy
in resolving interstate disputes, and more in terms of its contribution to the advancement of IL. For instance, the Court has
contributed significantly to the evolution and elaboration of IL through its advisory opinions. It also made a substantial contribution to
the international custom as a source of law in e.g. the Asylum case, clarifying how a custom should be proven.
To assess the ICJ's effectiveness, we should consider the ICJ's aims (as stated in the UN Charter and the Statute of the Court),
both individually and together. Resolving interstate disputes (sm. Compliance): in the absence of a monitoring/enforcement body,
non-compliance threatens the Court's authority and undermines its most essential aim of resolving legal disputes.

*Evaluation: The formation of a permanent court of international justice was an urgent subject that was thought to be a significant
step, but little progress has been achieved since its actual establishment. // While it is true that ICJ is a useful resource that may be
used to achieve certain goals, its creation and presence should not be mistaken with a promise of a peaceful world.

*Should ICJ's advisory jurisdiction be expanded? Yes. 1) The GA should authorise, in addition to the specialized agencies, other
public IOs, general or regional, to seek advisory opinions from ICJ.
2) If a national tribunal must consider a difficult IL question, it may find it advantageous to send the case to the ICJ for an advisory
opinion. The referral should occur early in the proceedings, as soon as it is clear that a complicated IL issue is involved. Once the
parties to the case have agreed to the referral, the national tribunal would construct the question to the ICJ and transmit it to the
Special Committee of the GA, together with the litigants' papers. The Special Committee would refer the case to the ICJ only after
determining that it met the GA's criteria for referral. This approach does NOT form a court hierarchy. It is not an appeal system
through which ICJ may review a national judgment. Instead, the proposal would establish a framework of cooperation that would
allow the ICJ to assist national courts in dealing with challenges pertaining to the interpretation of the IL (particularly treaties). ICJ's
opinions would therefore allow courts from various States to apply a certain rule of IL in a consistent and uniform manner, and would
be useful when different courts disagree on the interpretation of an international agreement. ICJ would not intervene in the
interpretation of domestic law, but if a rule of IL as defined by ICJ conflicts with a rule of domestic law, the national court would be
allowed to decide how such conflict should be addressed in line with the national law. NB: the list of acceptable questions would be
limited to the interpretation or application of bilateral or multilateral treaties and the questions would be filtered through a Special
Committee, since unrestricted access to the ICJ by national courts from all over the world would drastically increase the Court's
workload and might even swamp it with trivial issues.

*Should States be free to request advisory opinions? If two or more states would be allowed to refer a disagreement between
them to the ICJ for an advisory opinion, particularly if they cannot agree to refer it to the ICJ for a binding decision, then such a
leeway to obtain opinions that are solely advisory and the practice of treating them as 'easily disregarded comments' would discredit
the Court.

*Should SG request advisory opinions? This would be useful. As such requests are likely to be about particular legal issues, the
Court might assist in the resolution of legal components of bigger and ultimately political difficulties. This would prove beneficial to
the UN, the Court itself and the rule of law in international affairs.

*Does the losing state always comply? If not, what are the consequences?
Q1: Compliance means fulfilment in good faith of any binding duty that arises from ICJ's final judgment. Perhaps three-fourths of the
ICJ's judgments have been complied with. Empirical data shows that cases submitted by special agreements / with
contemporaneous consent generally receive a high level of compliance, having a better chance of being effective than those
brought under optional or compromissory clause, where one of the dispute parties is a reluctant participant in the proceedings.
Cases concerning boundary disputes or relating to conflicts are least likely to result in complete compliance.
The problem with assessing state compliance is that we cannot always attribute the shift in a state's behaviour to ICJ's judgment.
The change may be caused or influenced by other factors. The Court also has no monitoring or enforcement body to keep track of
compliance.
Q2: Art. 94 of the UN Charter provides for recourse to Security Council action in the case of non-compliance with an ICJ ruling – but
in reality, this procedure is rarely used. The Statute itself leaves limited room for the Court to take action against a non-compliant
party. But the Court's jurisdictional nature would be jeopardised if did not respond to violations of its decisions, and if the
implementation of the Court's rulings would be completely left to the discretion of the rulings' first addressees, i.e. the governments.
Commentators have proposed a range of measures. Some of these actions, such as imposing fines or awarding punitive damages,
must be rejected because they appear to be unsupported by the Statute. Others, like as withholding judgment44, do not appear to
be an adequate remedy since they detract the Court's principal role, which is to resolve the dispute in line with IL.

*Provisional measures: Impose a binding duty of compliance on the party (or parties) to whom they are addressed. The parties
are legally obligated to follow an order issued under Art. 41; nevertheless, interim measures are seldom followed, resulting in an
apparent gap in the Court's power.

Could a breach of a judgment over the merits of a case be considered less of a breach than a breach of an Order for
provisional measures? Is it not the jurisdiction of the Court to decide on the non-compliance with an Order for provisional
measures the same as the one over the merits of the case?
The answer to the latter is yes, and to the former is no. The lack of inherent jurisdiction in interim measures proceedings under the
Act has not prevented the Court from deciding issues that arise in such circumstances. This reaffirms the Court's authority to
"penalize failures to respect its prior judgment" and its responsibility to "guarantee that [its] judgments and decisions are fully
complied with."

*Bias: One can identify cultural biases and reflection of national interests in the way judges from certain countries apply the law.
This may include deciding in favour of the states they are nationals of (permanent judges) or states that appointed them (ad hoc
judges), or, in the absence of either, judges tend to vote for the state their own country approves of, e.g. the state with the closest
political or economic ties to their home states (this could be with regards to membership in alliances like e.g. NATO, regional blocs,
etc).
Judges from wealthy states favour other wealthy states that are parties to the disputes, while judges from poor states are more
likely to support poor states. Judges favour the state with a political system that is more similar to their own home states' systems,
e.g. in terms of democracy: judges from democratic backgrounds vote in favour of democratic states. Some studies have revealed
that judges give preferential treatment to states that are similar to their own in terms of e.g. religion and language. Bias also plays a
significant part in the election of the bench's President and Vice President.

*Does UNSC affect ICJ's decisions? Art. 94(2) is not clear enough. Does it mean SC is free to choose the type of measures it will
take? IMO, such lack of separation of powers is detrimental to the Court's authority. SC members' political considerations may differ
from Court rulings and the law. If one of the parties to the dispute turns to the SC to take action to implement the court decision
against of the SC members, it can be stopped by a permanent member's veto.

*Should ICJ take account of geopolitical realities? It must be aware of political realities. IL is complicated, and States will not
always be delighted if treaties are interpreted in a truly impartial way. Every state wants to enforce a treaty that will reflect the state's
interests. However, national interests and ideologies are equivocal and tend to alter fast.

*Reservations: allowed. These may include domestic jurisdiction reservation (Art. 2.7 UN Charter; Court has no jurisdiction to
intervene in matters which are essentially within the domestic jurisdiction of any State), anti-ambush application reservation (i.e. if
the acceptance of the Court's compulsory jurisdiction on behalf of any other party to the dispute was declared less than 12 months
before the filing of the application bringing the dispute before the Court, the State will not grant jurisdiction. This provision allows
States to immediately withdraw or change their declaration to avoid an unfavourable situation), 'single dispute' reservations, etc.
Reservations must not violate the ICJ Statute, nor ius cogens.

*What would be the Role played by the ICJ in international conflict resolution?
1) It would deal with political matters: The ICJ's mission would be broadened to include political issues, as most conflicts in
contemporary world stem from political considerations, and political elements are involved in each legal dispute. The consent
mechanism, on the other hand, would make it difficult, if not impossible, to compel any state to agree to the court's jurisdiction
against its will. It would be impossible for the court to participate successfully in international conflict resolution.
2) The ability to render legally binding decisions and making precedents. The Court's decisions are solely binding on the parties to
the dispute, and as a result, they do not set precedent for future cases. As a result, in order to resolve disagreements, the ICJ must
issue binding judgments not only to parties, but also to all states in order to establish precedents. It would assist to prevent future
wars in the globe if the court issued enforceable judgments to all States, regardless of the parties to the case.
3) The ability to enforce judgements. If one of the parties in a court dispute fails to carry out its responsibilities under the court's
judgments, the other party may take the case to the Security Council. The Charter empowers the Security Council to make
recommendations or decide on actions to be taken to give effect to the judgments. However, this does not obligate the Security
Council to enforce court's judgments. As a result, if the Court is to play a larger role in conflict resolution, it must be granted the
authority to enforce its decisions.

*Can the Court revise its decisions if not all facts have been reviewed, even though its decisions are final and without
appeal?
Res Judicata: a case has already been decided // a matter has been settled by a decision or judgment; and it is not subject to
litigation again between the same parties. Art. 61 Statute: yes, but in limited circumstances. Revision is a remedy that allows the
court to reconsider an otherwise final and binding judgment upon a party's request. This is important because If the Court renders a
judicial decision without all of the information at hand, it may reflect negatively on the Court's substantive justice.

Is there judicial review of UNSC's rights & powers of appreciation, and why there should not be?
The Court has no clear judicial review jurisdiction under the Charter or the ICJ Statute; it was even rejected twice at the San
Francisco conference when it was suggested to be put into the Charter (called the Belgian Amendments).
If the Court were to examine the SC's decisions under Art. 39, they would be required to make a "political judgment" on a matter in
which they lack expertise. SC's powers under Art. 39 are thus simply "non-reviewable," and hence unfit for the ICJ since it lacks
viable solutions.
Furthermore, such judicial review would be an obvious impediment to the SC's proper execution of its functions. Litigation would
require the SC to waste time and resources at a time when maintaining world peace and security in the face of today's dangers
relies on correct timing.

*Statutory power of the Court to adopt its own rules (Art. 30.1 Statute)
The Court is allowed to choose the method for adopting its rules of procedure under the Statute, but procedural norms must adhere
to the Statute. However, the Statute does not provide overly specific rules. It gives the Court a lot of leeway when it comes to
procedural matters. When the Advisory Committee of Jurists discussed the problem, it was suggested that the Committee not go
into too much detail when drafting the Court's process, and that the Court itself should formulate the rules in its internal regulations.
When one observes the current Court's record in modifying its Rules, the most remarkable feature is that the Court has consistently
viewed the subject as purely "internal." In general, the Court has resisted putting in place systems or procedures that would allow
some type of external participation or control. By doing so, it appears to have increased its flexibility in drafting the norms that
govern its procedure while limiting the scope of possible checks on judicial authority by States and other actors.
ICC is a permanent international tribunal established in accordance with the Rome Statute of the ICC to investigate, prosecute, and
try individuals accused of committing the most serious crimes. It is treaty-based and hence only binding on States parties to the
Rome Treaty.

Merits:
1) International criminal justice has a deterrent aspect: crimes are only prevented when those who commit them face
consequences. Example: the trial, conviction, and incarceration for war crimes of ex-President Charles Taylor in Sierra Leone sent a
message to the warlords;
2) List of crimes is exhaustive and includes elements of customary law;
3) Statute is not fixed, so there is a possibility of adding protocols through a review conference;
4) The establishment of ICC has limited states' powers to determine whether or not certain acts constitute as war crimes, crimes
against humanity or genocide. Of course, the international system still lacks a recognise legislative authority, yet both customary
and treaty-based IL criminalise certain acts;
5) The Court is readily accessible.
6) Human rights groups have highlighted the prosecutor's proprio motu powers as one of the Rome Statute's most crucial elements.
Surprisingly, despite heavy resistance from the US administration, this clause was passed.

Critiques:
1) The Court's jurisdiction is prospective. Crimes against humanity and war crimes are declared imprescriptible (UN Convention on
the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, 1968; RS Art. 29) - doesn't the non-
retroactivity of the Court's jurisdiction contradict this principle? This seems to be a political compromise.
2) Complementary jurisdiction: it's not always clear from which moment it may be determined that a judicial system is inefficient or
non-existent.
3) The ICC is a forum that allows the international community to react collectively to appalling events. The list of crimes being
exhaustive is thus incompatible with the philosophy behind the creation of the Court and its aims. The Rome Statute excludes, inter
alia, crimes related to drug trafficking and terrorism.
Plus, complementary jurisdiction which allows the ICC to intervene only when the local justice system is ineffective, deprives the
institution of its essence. Even where the Court jurisdiction it will not necessarily act, because it is only designed to act when
national courts are unwilling or incapable to carry out the proceedings.
4) The tool of self-referral is being used by the governments to punish their political opponents; e.g. in 2003 the government of
Uganda referred the case with Lord's Resistance Army to the ICC in such a way that it precluded examination of its own human
rights breaches. This harms ICC's credibility as an impartial institution.
5) ICC does not have a law enforcement mechanism and is heavily dependent on State cooperation - hence it's unable to achieve
the arrests of individuals who are subject to arrest warrants or transfers of suspects. A vast number of suspects, incl. Sudan's
president, are still at large.
6) Conducting investigations and gathering evidence on mass crimes committed in unsafe and/or unstable regions remains difficult.
7) ICC also lacks financial and other resources for investigations and other activities.
8) While ICC's existence does have a deterrent impact, there is proof that it has no effectively discouraged government leaders from
committing atrocities. Example: Darfur -Sudanese government has repeatedly ignored not only ICC pressure, but also Security
Council resolutions calling for an end to the slaughter in Darfur.
9) So far, ICC has only issued arrest warrants and indictments against Africans. The emphasis is solely on weaker states and in
particular African nations that lack substantial economic forces.

Why was it created? What's the importance? — Due to the lack of a permanent criminal court, nations established ad hoc
tribunals to prosecute offenders on an as-needed basis. After the WWII to the 90s, four ad hoc tribunals were established: IMT in
Nuremberg, IMT for the Far East sitting at Tokyo, IMCT for the Former Yugoslavia at the Hague, and IMCT for Rwanda sitting at
Arusha. These were not permanent bodies to punish perpetrators of international crimes: they had limited authority in terms of
geography and time period. ICJ has the authority to settle civil disputes but its jurisdiction only extends to states. A permanent
criminal court with jurisdiction that was designed to prosecute individuals was needed.
ICC's primary goal is to uphold the rule of law and guarantee that the most heinous international crimes are not left unpunished,
regardless of whether the crimes were perpetrated by the defeated or the victorious.

Why did the leaders of over 90 states agree to ratify the international criminal court statute and give up so much authority
over the use of force?
1) Pressure from non-state actors. The ICC Statute was drafted with heavy influence from NGOs - without it, state officials' interests
would be strongly opposed to this idea.
2) Peoples all over the world had recurrent experience with the extremes of state-sponsored violence in the 20th century, i.e. the
crimes that fall under the jurisdiction of the ICC.

NB: A military commander or anyone acting in the capacity of a military commander CANNOT escape responsibility for crimes
committed under his command if the commander knew, should have known, or failed to reasonably prevent such crimes. The
superior has responsibility for subordinates' activities if the superior knew or intentionally ignored such acts, effectively controlled
such behaviours, or failed to take required preventative or repressive measures.

CASE STUDY
Q1: What kind of action could be brought in order to try Israeli criminals?
- ICC's jurisdiction is not retroactive: thus, it cannot apply to massacres committed before its entry into force.
- If, however, the crimes falling within the jurisdiction of the court are still being carried out, ICC's jurisdiction applies.
- Israel has signed the treaty but not ratified it, so it cannot be considered a 'State Party'.
- Complementarity of the Court the first initiative may not be brought before the ICC, but before a national court somewhere. If then
the national legal system fails to cary out the investigation or prosecution, then the case may be brought before the ICC.
- "Ne bis in idem" principle (Art. 20): no person who has been tried by another court for conduct also proscribed under Art. 6, 7 and
8 shall be tried by the Court with respect to the same conduct.
Q2: Could the action be initiated by a State Party? — Territorial or national link to the 'situation' is required. Israel is not a party to
the treaty.

Q3: Could it be initiated by the UNSC? Under Chapter VII of the Charter? — Possible in theory (as long as there is a threat to
international peace and security - no matter that the state is a party or not, or has accepted the jurisdiction of the court or not), but
politically, it would not happen as the US would veto such a resolution.

Q4: The only possibility left would be an initiative from the prosecutor of the Court. — Same prerequisites as for initiative by
a State Party. For the prosecutor to initiate an investigation, the Court must have jurisdiction with respect to the situation. Art. 12
(Court may exercise its jurisdiction if a state on the territory of which the conduct in question occurred or of which the person
accused is a national is party to the treaty or if not party, has accepted the jurisdiction of the Court). Thus, the prosecutor could not
bring an action before the Court unless Israel accepts the jurisdiction of the Court.

How is a case investigated? — When a situation is referred to the ICC prosecutor, whether by the SC, SP, or NSP, the Prosecutor
may initiate an investigation if he believes that there is a reasonable basis to proceed under the Statute. NB: all 3 sources of referral
are at the same level - so SC's referral is not an obligation on the ICC prosecutor to proceed with a prosecution.
The main issue is the one of Admissibility and Inadmissibility of the case. This issue shows the extent of the complementary role of
the ICC towards the national jurisdiction. Admissibility may be challenged by: 1) an accused; 2) the state where the crime occurred;
3) a state with jurisdiction over the case; 4) the accused's state of nationality.
The PTC holds hearings to confirm charges in the presence or the absence of the accused. The Trial Chamber is then ready to
enter into the scene. A trial before the ICC must be in PRESENCE of the accused.

*Effectiveness — The first ICC prosecutor, Moreno Ocampo, argued that “the effectiveness of the International Criminal Court
should not be measured by the number of cases that reach it. On the contrary, complementarity implies that the absence of trials
before this Court, as a consequence of the regular functioning of national institutions, would be a major success.”

*Aggression // Potential clash with UNSC — While negotiators in Rome agreed that the crime of aggression should be included
in the Statute, they couldn't agree on a definition. This is the most controversial and politically charged crime within ICC jurisdiction
since it involves the planning, initiating or waging war of war in violation of the UN Charter. Definition was adopted in 2010 by State
Parties but only came into force in 2018. Permanent members of the UNSC, led by the US and the UK, pushed hard to narrow the
definition and jurisdictional framework of the crime of aggression. This is why ICC's jurisdiction is limited to state parties that have
ratified the crime of aggression, and the UNSC retains a crucial role in determining the crime's jurisdiction.
Potential conflict between the UNSC's power to determine the existence of any act of aggression under Art. 39 of the UN Charter
and the ICC's exercise of jurisdiction over cases of aggression that had not been referred to the court by the Security Council: the
fact that France and the UK did not vote to block the Kampala consensus demonstrates that extending the trigger mechanisms of
the ICC's jurisdiction beyond the Security Council's monopoly does not jeopardize the Security Council's critical role in safeguarding
international peace and security.

*Secondary crimes - relating to ICC's own proceedings, such as perjury and contempt of court. Former DRC Vice President Jean-
Pierre Bemba and members of his former defense team were found guilty of witness tampering in Bemba's initial ICC trial for crimes
against humanity and war crimes in 2016.

Is ICC only targeting African states? — The majority of the Court's investigations are the result of self-referrals by African
countries. Court's most vocal opponents are African leaders with terrible human rights records.

Why does ICC not try states, organisations or other groups of people? — International Military Tribunal (Nuremberg), supra
note 3, at 55-56, stated: ‘Crimes against IL are committed by men, not by abstract entities, and only by punishing individuals who
commit such crimes can the provisions of IL be enforced.'

Has ICC ben effective in promoting human rights on the global stage? — Some cases of human rights violations, such as
inadequate education, health, and others, can be addressed by national courts but cannot be presented to the ICC since they are
inadmissible because it operates as a complementing court. As a result, while the ICC cannot be blamed for failing to promote
human rights violations on a global scale, some instances can be addressed by national courts as local remedies.

*Terrorism — Although diplomats in the draft statute for the ICC recognized that terrorism was a crime of concern to the
international community, they were unable to reach an agreement on a single description of the components of terrorism.
Nonetheless, the ICC has several alternatives for playing a role in countering terrorism. The most frequently recommended
alternative is to punish terrorist activities as crimes against humanity. However, the Rome Statute's definition of crimes against
humanity creates considerable barriers to the systematic prosecution of terrorist conduct. It requires that "crimes against humanity
be committed as part of a broad or systematic attack - a standard that should be exceedingly difficult to meet in the case of most
terrorist acts." As a result, another alternative would be to broaden the ICC's jurisdiction to include terrorism as a separate crime.

*Global-local dilemma — OTP must choose between serving different global (international) and local communities. Is the primary
objective of the ICC to prevent international crimes all over the world, or is it to serve the interests of the communities most affected
by the crimes at hand?
E.g. Uganda case: if ICC's objective was to complement the national court systems, its decision to prosecute members of Lord's
Resistance Army may be seen as illegitimate, given the Ugandan government was capable of prosecuting them. The selection
decisions, on the other hand, may be more justifiable if the ICC's purpose in pursuing a limited number of rebel commanders in
Uganda is to promote global justice.

*Recommendations to increase legitimacy — Adopting more transparent selection methods; demanding more reliable evidence;
increasing victim engagement; and enhancing sentencing standards.

*Legitimacy of exercise // Input legitimacy — How the court performs its actions: selection of situations and cases; fairness;
victim participation.
Prosecutor should choose situations and cases for prosecution based on law and justice, without regard to political considerations.
For example, the ICC's choice in Uganda and the Democratic Republic of the Congo to try rebels but not government offenders has
weakened the ICC's legitimacy. It was a political intervention designed to sustain government collaboration rather than legal or
judicial standards.

*Victim participation: more or no? — In the context of global-local dilemma: if the Court's goal is global justice, then this can be
achieved with a limited victim participation; if not, considerable victim participation can assist to guarantee that trials focus on the
victims' interests rather than the global community's.

*Output legitimacy — Outputs ICC generates: penalties it imposes, or any advantages (or drawbacks) that result from its work for
victims, the society where the crimes happened, or the global community.
Punishment: Whether the ICC should impose harsh, mild, or moderate punishments is solely dependent on whether the ICC is
primarily concerned with global or local justice. The ICC should either follow the punishment norms of the civilizations most
impacted by the crimes (for example, severe retributive sentencing appeals to certain people but is considered as cruel in other
areas of the globe), or devise a unique sentencing method aimed at promoting global standards.
*Why ECHR? When all domestic remedies have been exhausted, an individual has an inherent right to take the matter to the Court.
The Court has a dual role: to protect individual rights (after exhausting all local remedies) and to maintain European public order. As
a result, the Court serves as the final interpreter of the Convention's application and interpretation (ECHR Art. 32 and 44). In certain
ways, the Court has a "quasi-constitutional" function in preserving core human rights principles that must be interpreted in light of
new and continuously changing societal norms and expectations.
The Court's primary responsibility is to monitor governments' compliance with their commitments under the Convention. The dual
responsibility of providing individual protection against state-sponsored human rights breaches is often recognized as the foundation
of the Convention system.

*Legitimacy: - Output: Failing to protect HR would undermine the legitimacy of human rights courts. Making explicit moral
judgements is normatively permissible for human rights tribunals, and it also enhances views of legitimacy. As a result, broadening
the scope of the European Convention on Human Rights in order to safeguard disadvantaged and unpopular groups strengthens
rather than weakens the Court's credibility. EC must pursue just outcomes that reflect and embody broad moral principles or HR, or
those that increase HR protection, since this has a considerably effect on EC's credibility.
- Procedural fairness and effective remedies: EC has placed a high value on procedural fairness, access to judicial remedies, and
procedural rights in general. Such procedural rights and duties have frequently been connected by the Court to the rule of law and
the need of a fair trial in a democracy (Güfgen v Germany). The Court also held in Silih v Slovenia that the state's affirmative
commitment to investigate suspicious deaths and offer adequate legal remedies should be considered a separate, detachable part
of the right to life that may be invoked independently.

*Sources: Convention is the only binding authority on the Court, but EC relies on a range of legal sources to support its reasoning;
nevertheless, the Court does not always use these sources in a systematic and consistent manner, which is required to improve the
clarity and predictability of its decisions. There are two types of legal sources utilized by the ECtHR to interpret the Convention:
internal and external. Internal sources come from the Strasbourg system of human rights protection, and include the European
Court of Human Rights' case law, the legislation and practices of the Convention's Contracting Parties, and legal papers created by
the Council of Europe. Treaty-based and customary IL, reports of IOs, and laws and practices of governments outside the Council of
Europe are all examples of external legal sources. There is some overlap between internal and external sources. Through
implementation or accession, some ILs can make their way into national legal systems.

*Critiques: 1) Overreaches into and unduly restricts state sovereignty to safeguard human rights. Meddles far too much in national
policy decisions, overturns national judicial decisions. In fact, in response to the Court's increased intervention in areas such as
voting rights (British criticism) and immigration policy, European government leaders adopted a new Protocol (no. 15) to the
Convention in 2013, codifying the idea of subsidiarity and margin of appreciation.
2) Too much workload. Over 800 million individuals worldwide have access to the ECtHR when they believe their rights have been
infringed. As a result of the high volume of requests, the Court has been called a "victim of its own success." The problem is
heightened nowadays with the massive and ongoing influx of migrants, refugees and asylum seekers into Europe, and the flood of
applications related to these arrivals.
3) There are a lot of pending and rejected applications (+100k), with just a small percentage of them being brought before the
chamber. When justice is delayed, justice is denied. (CA: having every case considered would be impractical in terms of time and
expense, but many of these complaints are repetitive or clone applications that clog the Court's docket)
4) Hasn't always been successful in preventing Convention violations. It has failed to set precedents, as seen by the rising number
of instances in which breaches are discovered; in other words, it has failed to modify state behaviour over time. Moreover, some
judgments have not been implemented despite the passage of time and several attempts at implementation.
5) Some say ECHR is not the cause behind States' commitment to HR, such conformity owes to the democratic ruling parties'
liberal enlightenment-based ideology and Europe's local will rather than ECHR. (CA: ECHR has influenced Western Europe's
degree of HR compliance, e.g. Smith and Grady v UK resulted in UK amending its policies on sexual orientation discrimination in
the armed forces. Such judgments have reshaped domestic laws across Western Europe, bringing them more in line with present-
day HR norms).
6) The Court's use of the "margin of appreciation" is one example of how it fails to ensure conformity with human rights norms. The
Court acknowledges that states will interpret the Convention differently, and hence grants the states a license to deviate from it.
Court has utilised this in cases like Lautsi V Italy (2011) to decide in favour of the state. While such flexibility may be important to
maintain the Court's legitimacy and acceptability, it also permits nations to stray from the Convention, resulting in a lesser degree of
compliance with standard.
7) When it comes to questions of national interest and security, the ECtHR's power over nations might be perceived as weak. Some
say EC can require compliance on minor matters while failing to safeguard individuals in high-state interest cases. E.g. UK's
counter-terror legislation violates several provisions of the Convention by e.g. enabling indefinite house arrest and removal of
certain liberties. EC has been unable to stop this derogation. This supports the premise that state compliance is only motivated by
self-interest, and that when the risk to the state outweighs the need to preserve HR standing, compliance will be avoided.

*Counter-arguments 1) EC's principal goal is to interpret the convention's ambiguity than to demand a remedy for its breaches. As
a result, it would be inaccurate to conclude that the large number of applications reflect a lack of conformity with human rights
norms and failure of the Court.
2) Despite the fact that there are no available tools for enforcing judgments, CoE members can be expelled for disobeying
judgments. This has not happened yet, although Ukraine came very close to it after neglecting to execute EC's judgments in 2001.

How has the ECHR contributed to enhancement of universal protection of HR? — Initially, ECHR could strengthen its stance
by refusing to rendering judgments hat would have severely undermined national sovereignty in its earlier years (margin of
appreciation > state discretion). It then gradually moved to broaden the rights of e.g. inmates to vote in public elections (Hirst v UK),
proceeding to curtailing the governments' powers to imprison and deport terrorism suspects, etc. Over time, the Court expanded the
scope of the Convention's provisions, e.g. by introducing Protocol 11 in 1998, or by introducing interpretative doctrines through its
decisions such as the:
1) Living instrument approach (Tyrer v. UK, 1978): The Convention is a living instrument that must be construed in the light of
current circumstances. Thus, the Court may conclude that the rights that were earlier within the MoA are now breaches of
Convention.
2) Principle of practical and effective protection: Convention is meant to safeguard practical (and not theoretical) rights. So it's not
enough for legal remedies to exist, they must be effectively exercisable.
3) Principle of autonomous interpretation (Engel v Netherlands): Court should interpret the Convention's terms from a European
(rather than a national) viewpoint. As a result, the Court should establish its own judicial meaning of the terms, free of any national
variations. Court is not bound by the State's classifications and can determine the meaning of Convention rights on its own.
4) Margin of Appreciation (margin of state discretion): European consensus precludes national action.

Merits: 1) To optimise its efficacy, EC's framework combines political independence, binding legal authority, high-quality legal
reasoning.
2) Despite not being the offender, certain European countries have been known to amend their laws to adhere to judgements and
meet new requirements. This is a clear example of the ECtHR influencing state behavior. Even while state intentions are seldom
totally obvious, a link like this between ECtHR judgements and domestic legislative changes is significant evidence for the Court's
efficacy. Moreover, the Court's res interpretata jurisdiction has been acknowledged by the highest judicial institutions of a number of
nations, including the Netherlands, as well as in particular legislative measures in a few countries. In this regard, the entry into force
of ECHR Protocol no.16, which allows the highest domestic courts to seek advisory opinions on ''questions of principle relating to
the interpretation or application of the rights and freedoms defined in the Convention or protocols thereto' (Art. 1) in cases pending
before them, is likely to help to emphasise the Court's unique position as the final authoritative interpreter of the meaning of the
Convention's provisions.
3) Human rights violations bring the state into disrepute, and violations are now much more visible thanks to the ECtHR. It is thus in
the state's own best interests to comply. As a result, the greater the effectiveness of the convention's safeguards, the higher the
degree of compliance, as there is less opportunity for states to violate rights when they contradict with their interests.
It should be noted that sometimes States ratify treaties in order to seem like they are conforming to HR standards, while human
rights violations increase. One explanation for this is that nations utilise treaties to conceal violations and boost their domestic and
international image. This strategy, however, does not work with the Court since violations are recorded and de-facto compliance,
rather than 'commitment', is required for a good human rights standing. As a result, the presence of the Court, rather than only the
Convention, is the most logical explanation for rights compliance across Europe.
4) The Court's case-law has had a profound impact on all aspects of human life, benefiting hundreds of thousands of individuals,
associations, political parties, businesses, and people from vulnerable groups.

Is the Court constitutionally illegitimate? Why should foreign judges tell us how to interpret fundamental rights? — This
claim has nothing to do with constitutionalism. It is based on disapproval of the fact that the EC has the authority to review the
judgments of higher national courts in sensitive HR matters. It's also a rebuke to what national judges consider to be
unconstitutional judicial activism. Some national judges are no longer convinced that EC's judgments should override national law.

*Immigration? If immigration and asylum processes conduct their own risk assessments and are deemed to work fairly and in
accordance with human rights, the Court should only be called upon to interfere in exceptional circumstances.

*Recommendations: 1) Annual rise of 10% in applications will overwhelm the Court. Drastic measures must be taken to minimise
the sheer volume of unfounded cases. Perhaps imposing an adequate fee might encourage applications to think carefully before
filing a complaint with EC, given that 90% of all applications are rejected as inadmissible. Appropriate exceptions should be granted
between groups (e.g. for those in detention or mentally ill people) and the costs should be matched to the respective country's
standard of living, to make sure proceedings are not too costly for the applicants. However, this idea is very controversial, due to the
risk that people with well-founded applications may still be unable to pay the cost, but also because of the administrative challenges
of establishing such a fee system in relation to applications from all member states.
Another solution would be increasing the Court's filtering ability, e.g. by establishing a judicial filtering body comprised of a core of
'junior' judges aided by the registry.
2) National measures and Convention implementation. All states must effectively integrate the Convention into national law and
develop a strategy for implementing their obligations and ECHR's case law.
3) Advisory opinions: a method to improve the relationship between national courts and ECHR is to increase dialogue between
them. Allowing national courts to obtain an advisory opinion in cases where the case law is contentious or ambiguous would make
the system less adversarial than it is now. However, there are drawbacks: certain supreme courts would be tempted to send too
many requests if ECHR issues appeared in cases before them, increasing the ECtHR's burden.
4) The principle of "State responsibility" must be stressed more forcefully before/by the Committee of Ministers. The Committee
should consider more severe infringements actions against certain States ('big sinners').

*State Responsibility: ALL branches of the State, not only governments, are accountable for enforcing ECHR norms and
Strasbourg Court judgements. The executive, legislative, and judicial branches of government are responsible for ensuring that the
'Strasbourg norms' are implemented quickly and completely.

*EU's accession: As observed in Bosphorus and (to a lesser degree) MSS v. Greece and Belgium, the fact that the EU is not a
Party today creates an imbalance and confusion as to who may be held legally liable for breaches of Convention rights where EU
legislation is involved.

*Environment: The ECHR does not explicitly safeguard the right to a clean and healthy environment. As a result, some may claim
that the ECHR is unable to deal with all of the environmental concerns that modern environmental law faces today, such as
biodiversity loss and climate change. However, because the ECHR is focused on the impact of environmental hazards on humans
rather than the environment itself, it cannot consider cases involving exclusively the interests of nature.
The ECHR's Ratione Personae scope of application: The issue of jurisdiction is inextricably tied to the state's international
accountability. Following the idea of shared responsibility, environmental harm caused by climate change may be ascribed to more
than one state, particularly in climate change cases. However, the fact that a human rights violation can be attributed to many
nations does not absolve the governments responsible under the Convention.
Ratione materiae: Before the ECtHR, environmental issues must be about the rights provided by the ECHR. Because the
Convention does not provide a human right to a clean and healthy environment—as the ECtHR has repeatedly stated in its
decisions—environmental claims must be based on infringement of the ECHR's (primarily civil and political) rights, such as the right
to life. Many so-called social and economic rights, such as the right to health, are absent from the ECHR. As a result, environmental
deterioration cannot be brought before the ECtHR unless and until it can be regarded as a breach of the ECHR's human rights
guarantees.
Ratione loci: The term 'jurisdiction' refers to the (territorial) scope of application of the agreement, not to the territory of the states.
Human rights violations caused by environmental impact may be covered by the Convention. States parties to the ECHR are
accountable for acts taken abroad in certain situations, especially because Art. 1 of the ECHR relates to jurisdiction rather than
territory. As a result, the ECHR may apply in matters involving transnational environmental damage, including harm caused by
private actors, as long as the specific harm in issue can be assigned to the member State under the concept of personal jurisdiction.
Ratione temporis: States are only bound by the duties arising from an international treaty from the date of ratification. This basic rule
is only changed if the treaty's duties truly encompass a scenario that occurred prior to ratification. If positive responsibilities resulting
from specific ECHR rights are at risk, this exemption applies under the ECHR. In general, the date of the convention's rights being
infringed upon is the essential date for establishing temporal jurisdiction. These broad guidelines also apply in environmental cases;
for example, current climate science allows for the attribution of emissions leading to slow-onset disasters to a specific state at a
specific moment.
NB: Individuals or associations must allege that they have been victims of human rights breaches in order to make a valid claim
before the ECtHR (Art. 34 ECHR). This means being "personally or directly affected" by a breach of the Convention.

*WTO: If negotiations fail to settle the problem, a dispute in the WTO emerges when one nation adopts trade policy measures that
one or more other WTO members regard to be infringements (e.g., unjustifiable trade barriers) of WTO agreements. A third group of
states has the option of declaring an interest in the case.

*Why was WTO DSB created? Referring a dispute to a panel required positive consensus in the GATT Council. Positive
consensus meant that there could be no objections to the decision from any contracting party. As a result, the responder was able to
prevent the formation of a panel. Furthermore, the approval of the panel report, as well as the authorisation of countermeasures
against a non-implementing respondent, also required a positive consensus. The respondent could easily block such decisions too.
Interestingly, respondents typically refrained from obstructing consensus decisions and permitted such activities, even if it was
detrimental to them. They did so because they had a long-term systemic interest and acknowledged that abusing the veto authority
would result in a retaliatory response from the others. However, such statistics can only reflect complaints that have been filed. A
considerable number of issues were never filed before the GATT because the complainant thought the respondent would wield its
veto power. As a result, the threat of a veto damaged the GATT dispute settlement mechanism.
As the fundamental flaws in the GATT dispute settlement system exacerbated issues in the 1980s, many GATT 1947 contracting
parties, both developing and developed, thought that the system needed to be improved and strengthened. Talks on dispute
resolution were thus included and prioritized on the agenda of the Uruguay Round negotiations. As part of the Uruguay Round
outcomes, the DSU established a greatly reinforced dispute settlement structure. It outlined more explicit processes for the various
stages of a dispute, including time frames. As a result, the DSU includes several deadlines to guarantee that conflicts are resolved
as soon as possible. The new dispute resolution system is likewise an integrated structure that, with minor exceptions, applies to all
covered agreements.
The DSU's most significant innovation, perhaps, is that it abolished the power of individual parties, often the one whose measure is
being challenged, to obstruct the formation of panels or the adoption of a report. Unless there is a consensus to the contrary, the
DSB now automatically creates panels and approves panel and Appellate Body reports.
Other significant new components of the WTO dispute settlement system include appellate review of panel reports and systematic
implementation monitoring following the adoption of panel (and Appellate Body) reports.

*Scope of the DSS // Covered agreements: The WTO dispute settlement system applies to all disputes brought under the WTO
agreements listed in Appendix 1 DSU (Art. 1.1 DSU). Subject to specific exceptions, DSU applies uniformly to disputes under the
WTO agreements. In some cases, the covered agreements provide 'special and additional rules and procedures” on dispute
settlement contained in the covered agreements (Art. 1.2 DSU). These are "intended to deal with the particularities of conflicts
under a certain covered agreement." A "difference" or conflict between the DSU and the special rules exists only "where the
provisions DSU and the special or additional rules and procedures of a covered agreement cannot be read as complementing each
other" because they are mutually inconsistent, such that adherence to one would result in a violation of the other.

*Merits: 1) WTO's Dispute Settlement Mechanism (DMS) is a rule-based mechanism. In a rule-based system decisions are made
on the basis of rules rather than economic strength, so a country that is economically more developed cannot force its judgments on
others, rather, the country with the best legal reasons to support its claim will prevail in the end. Such a system provides equal
access to all MS and empowers developing countries and smaller economies by putting them on an equal footing with bigger
economies.
2) Compared to the GATT 1947 DSS, the WTO system is significantly more effective, and has a high rate of compliance.
3) Large number of cases in which parties invoked the dispute settlement system suggests that Members have faith in the system.
4) WTO DSS has fulfilled its main function: to contribute to the settlement of trade disputes.

*Critiques: 1) Despite strict deadlines, a comprehensive dispute settlement procedure still takes a significant period of time, during
which the complainant suffers economic damage if the challenged measure is indeed WTO-inconsistent;
2) No provisional measures are available to protect the complainant's economic and commercial interests during the DS procedure;
3) Even in case of victory, the complainant does not receive compensation for the damage suffered during the period allotted to the
respondent to implement the judgment. It also receives no repayment from the other side for its legal expenditures;
4) In the case of non-implementation, not all MS can resort to suspension of obligations;
5) In a few circumstances, a suspension of concessions has not resulted in implementation;
6) Poor economies are unable to retaliate if any wealthy country or large economy fails to comply;
7) DSP expenses are disproportionately high for developing countries. To file WTO lawsuit, significant human and financial help is
required. (L)DC are hesitant to launch claims against large economies since the litigation costs are too high, and their lack of
expertise in international trade law necessitates the hiring of private specialists, which is prohibitively expensive for poor economies.
8) Only governments have a legal standing before the WTO DSP, hence, export industries must first persuade their governments to
bring disputes to the WTO (initially via consultations, then to a panel). This has an impact on the incentives for the private sector to
file cases. Cases may not be taken forward if government refuses to submit the matter to the WTO.
9) Standard remedies requiring the WTO member to align its measures with its WTO commitments do not involve monetary
compensation or financial penalties. The appeal of utilising the system decreases.
10) The unfair and discriminatory behaviour of panels and appellate bodies is a major rising concern for developing countries. Most
of the time, the judgements of the panels and the appellate body strengthen the duties of developing countries and the rights of
developed countries. One example is the panel's stance toward Indonesia in the car subsidy case, and its stance of the US in a
similar case.
11) Even if the panel awards a remedy in the form of corrective actions by the erring country, the remedy does not apply
retroactively; that is, the remedy only tells the erring state to stop its unlawful/wrong practices, but it does not compensate the
aggrieved state for the time they were harmed by the malpractice.
12) Confidentiality is excessive. A Member who does not intend to be a party to the dispute but wishes to make submissions to the
panel and AB or just observe what is going on in the case without making any submissions must become a third party in order to
receive access to the proceedings. Those who desire to remain observers are forced to become participants.
13) WTO lacks proper transparency in terms of the availability of its dispute resolution mechanisms to public scrutiny, as well as
reasonable provisions for any amicus or intervener process. In practice, amicus briefs add little to transparency. The refusal to open
panel and AB hearings to the public and to enable public access to the parties' filings undermines the system's legitimacy.
Furthermore, it lacks a rational foundation. It cannot be justified on the basis of confidentiality since other judicial bodies can
effectively achieve a balance between transparency and confidentiality. The claim that closed sessions enable governments to talk
candidly is also unconvincing. Preparations are made using prepared texts, with minimum variation from preset positions.
14) The reverse consensus rule means that there is virtually no likelihood that an AB judgment will be rejected. (CA: This is not to
say that AB decisions cannot be overturned - an AB interpretation of a provision of one of the covered agreements can be rendered
irrelevant by an amendment to that provision -> but in reality, only in exceptional cases will a sufficient number Members agree that
the consequences of an AB interpretation are so damaging that the decision must be overturned by amendment or authoritative
interpretation).

*Exclusive Jurisdiction: DSS is compulsory and applies to all WTO members since they all signed and ratified the WTO
agreement as the single endeavour. DSU binds all WTO members to the WTO DSS for all WTO-related issue, forbidding unilateral
action and taking the law into their own hands. As a result, unlike previous international dispute resolution systems, the parties to a
dispute do not need to recognize the authority of the WTO dispute settlement system in a separate statement or agreement. This
acceptance of the WTO dispute settlement system's jurisdiction is already included in a Member's WTO membership. As a result,
every Member has guaranteed access to the dispute resolution system, and no responding Member can avoid that jurisdiction.

*Participants: the only participants are the WTO's member governments, who can participate as parties or third parties. The WTO
Secretariat, WTO observer countries, other IOs, and regional or local governments do not have the authority to initiate WTO dispute
settlement proceedings. Since only WTO Member governments can bring disputes, it follows that private individuals or companies
do not have direct access to the dispute settlement system, despite the fact that they are frequently the ones (as exporters or
importers) most directly and adversely affected by the allegedly illegal WTO measures. Same goes for other NGOs that have a
general interest in the matter. These groups may and frequently do exert influence or even pressure on the WTO member
government regarding the initiation of a proceeding. Numerous WTO members have legally enacted internal legislation allowing
private parties to petition their governments to file a WTO case. Members have differing opinions on whether NGOs should be
allowed to participate in WTO dispute settlement procedures, such as by making amicus curiae submissions with WTO dispute
settlement bodies. Panels and the Appellate Body have the discretion to accept or reject these submissions, but they are not
required to examine them.

*WTO bodies involved in the DSP: The operation of the WTO dispute settlement process involves the parties and third parties to a
case, the DSB, panels, the Appellate Body, the WTO Secretariat, arbitrators, independent experts and several specialized
institutions. Among the WTO bodies involved in dispute settlement, one can distinguish between a political institution, the DSB, and
independent, quasi-judicial institutions such as panels, the Appellate Body and arbitrators.

*Dispute Settlement Body: - Functions & Composition

Like the General Council, the DSB is composed of representatives of all WTO Members. These are governmental representatives,
in most cases diplomatic delegates who reside in Geneva (where the WTO is based) and who belong to either the trade or the
foreign affairs ministry of the WTO Member they represent. As civil servants, they receive instructions from their capitals on the
positions to take and the statements to make in the DSB. As such, the DSB is a political body.
The DSB is responsible for administering the DSU, i.e. for overseeing the entire dispute settlement process.
The DSB 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 (Art. 2.1 DSU). The DSB
is responsible for the referral of a dispute to adjudication (establishing a panel); for making the adjudicative decision binding
(adopting the reports); generally, for supervising the implementation of the ruling; and for authorizing “retaliation” when a Member
does not comply with the ruling.
The DSB meets as often as is necessary to adhere to the time-frames provided for in the DSU (Art. 2.3 DSU). In practice, the DSB
usually has one regular meeting per month. When a Member so requests, the Director-General convenes additional special
meetings. The staff of the WTO Secretariat provides administrative support for the DSB (Art. 27.1 DSU).
- Decision-making: The general rule is for the DSB to take decisions by consensus (Art. 2.4 DSU). Footnote 1 to Art. 2.4 DSU
defines consensus as being achieved if no WTO Member, present at the meeting when the decision is taken, formally objects to the
proposed decision. This means that the chairperson does not actively ask every delegation whether it supports the proposed
decision, nor is there a vote. On the contrary, the chairperson merely asks, for example, whether the decision can be adopted and if
no one raises their voice in opposition, the chairperson will announce that the decision has been taken or adopted. In other words, a
delegation wishing to block a decision is obliged to be present and alert at the meeting, and when the moment comes, it must raise
its flag and voice opposition. Any Member that does so, even alone, is able to prevent the decision.
However, when the DSB establishes panels, when it adopts panel and Appel- late Body reports and when it authorizes retaliation,
the DSB must approve the decision unless there is a consensus against it ( Art. 6.1, 16.4, 17.14 and 22.6 DSU). This special
decision-making procedure is commonly referred to as “negative” or “reverse” consensus. At the three mentioned important stages
of the dispute settlement process (establishment, adoption and retaliation), the DSB must automatically decide to take the action
ahead, unless there is a consensus not to do so. This means that one sole Member can always prevent this reverse consensus, i.e.
it can avoid the blocking of the decision (being taken). To do so that Member merely needs to insist on the decision being approved.
When the DSB administers the dispute settlement provisions of a plurilateral trade agreement (of Annex 4 of the WTO Agreement),
only Members that are parties to that agreement may participate in decisions or actions taken by the DSB with respect to disputes
under these agreements ( Art. 2.1 DSU).
- Role of the chairperson: The DSB has its own chairperson, who is usually one of the Geneva-based ambassadors, i.e. a chief of
mission of a Member’s permanent representation to the WTO (Art. IV:3 of the WTO Agreement). The chairperson is appointed by a
consensus decision of the WTO Members. The chairperson of the DSB has mainly procedural functions, that is, passing information
to the Members, chairing the meeting, calling up and introducing the items on the agenda, giving the floor to delegations wishing to
speak, proposing and, if taken, announcing the requested decision. The chairperson of the DSB is also the addressee of the
Members’ communications to the DSB.

*Director-General & WTO Secretariat: The Director-General convenes the meetings of the DSB and appoints panel members
upon the request of either party, and in consultation with the Chairman of the DSB and the Chairman of the relevant Council or
Committee, where the parties cannot agree on the composition within 20 days (Art. 8.7 DSU).
The staff of the WTO Secretariat, which reports to the Director-General, assists Members in respect of dispute settlement at their
request (Art. 27.2 DSU), conducts special training courses (Art. 27.3 DSU) and provides additional legal advice and assistance to
developing country Members in matters relating to dispute settlement within the parameters of impartiality called for by Art. 27.2
DSU.

*Panels: are like tribunals. But unlike in a normal tribunal, the panellists are usually chosen in consultation with the countries in
dispute. Only if the two sides cannot agree does the WTO director-general appoint them. Panels consist of three (possibly five)
experts from different countries who examine the evidence and decide whois right and who is wrong. The panel’s report is passed to
the DSB, which can only reject the report by consensus. Panellists for each case can be chosen from a permanent list of well-
qualified candidates, or from elsewhere. They serve in their individual capacities. They cannot receive instructions from any
government.
There is no permanent panel at the WTO - a different panel is composed for each dispute.Anyone who is well qualified and
independent ( Art. 8.1 and 8.2 DSU) can serve as panelist. Whoever is appointed as a panelist serves independently and in an
individual capacity, and not as a government representative or as a representative of any organization (Art. 8.9 DSU).
The panel composed for a specific dispute must review the factual and legal aspects of the case and submit a report to the DSB in
which it expresses its conclusions as to whether the claims of the complainant are well founded and the measures or actions being
challenged are WTO-inconsistent. If the panel finds that the claims are indeed well founded and that there have been breaches by a
Member of WTO obligations, it makes a recommendation for implementation by the respondent ( Art. 11 and 19 DSU).

*Panel Procedure: Before the first hearing: each side in the dispute presents its case in writing to the panel;
- First hearing: the case for the complaining country and defence: the complaining country (or countries), the responding country,
and those that have announced they have an interest in the dispute, make their case at the panel’s first hearing.
- Rebuttals:the countries involved submit written rebuttals and present oral arguments at the panel’s second meeting.
- Experts:if one side raises scientific or other technical matters, the panel may consult experts or appoint an expert review group to
prepare an advisory report.
- First draft:the panel submits the descriptive (factual and argument) sections of its report to the two sides, giving them two weeks to
comment. This report does not include findings and conclusions.
- Interim report: The panel then submits an interim report, including its findings and conclusions, to the two sides, giving them one
week to ask for a review.
- Review: The period of review must not exceed two weeks. During that time, the panel may hold additional meetings with the two
sides.•Final report:A final report is submitted to the two sides and three weeks later, it is circulated to all WTO members. If the panel
decides that the disputed trade measure does break a WTO agreement or an obligation, it recommends that the measure be made
to conform with WTO rules. The panel may suggest how this could be done.
- The report becomes the DSB’s ruling or recommendation within 60 days unless a consensus rejects it. Both sides can appeal the
report (and in some cases both sides do).

*Legal Support to Panels: WTO Secretariat is responsible for assisting panels which means providing them with legal support by
advising on the legal issues arising in a dispute, including the jurisprudence of past panels and the Appellate Body. Because panels
are not permanent bodies, the Secretariat serves as the institutional memory to provide some continuity and consistency between
panels, which is necessary to achieve the DSU’s objective of providing security and predictability to the multi- lateral trading system
(Art. 3.2 DSU). The Secretariat staff assisting a panel usually consists of at least one secretary and one legal officer.

*Appellate Body: - Tasks and background:

Unlike panels, the Appellate Body is a permanent body of seven members entrusted with the task of reviewing the legal aspects of
the reports issued by panels. The Appellate Body is thus the second and final stage in the adjudicatory part of the dispute
settlement system. As it did not exist in the old dispute settlement system under GATT 1947, the addition of this second adjudicatory
stage was one of the major innovations of the Uruguay Round of Multilateral Trade Negotiations. AB is important because in the
current dispute settlement system, individual Members of the WTO are no longer able to prevent the adoption of panel reports,
unless they have at least the tacit approval of all the other Members represented in the DSB.
If a party files an appeal against a panel report, the Appellate Body reviews the challenged legal issues and may uphold, reverse or
modify the panel’s findings (Art. 17.13 DSU).
- Composition and structure:
The DSB appoints the members by consensus (Art. 2.4 DSU), for a four-year term and can reappoint a person once (Art. 17.2
DSU). Art. 17.1 DSU provides that three of the seven Appellate Body members are to serve on each appeal and that the seven
Members are to serve in rotation. Selection is random, regardless of national origin. This is different from panels, where persons
holding the citizenship of a party or third party cannot serve, except with the agreement of the parties. Thus, Appellate Body
members who are citizens of Members involved in many disputes as either parties or third parties, like the United States or the
European Union, are not excluded from serving on Appellate Body divisions hearing cases involving their countries of citizenship.
The three Appellate Body members who have been selected to serve on a particular appeal elect one of them to be presiding
member of that division. The presiding member coordinates the overall conduct of the appellate proceeding, chairs the oral hearing
and meetings related to that appeal and coordinates the drafting of the Appellate Body report (Rule 7(2) of the Working
Procedures).
Appellate Body members must be persons of recognised authority, with demonstrated expertise in law, international trade and the
subject matter of the covered agreements generally, and they must not be affiliated with any government (Art. 17.3 DSU). The
seven Appellate Body members must be broadly representative of the membership of the WTO (Art. 17.3 DSU), although they do
not act as representatives of their own countries but rather they represent the WTO membership as a whole.
The seven AB members elect one of their number as Chairman who serves a term of one or maximum two years (paragraph 5 of
the Working Procedures for Appellate Review).
- AB Secretariat: Provides legal assistance and administrative sup- port to the Appellate Body (Art. 17.7 DSU). To ensure the
independence of the Appellate Body, this Secretariat is only linked to the WTO Secretariat ad- ministratively, but is otherwise
separate.

*Arbitrators: In addition to panels and the Appellate Body, arbitrators, either as individuals or as groups, can be called to adjudicate
certain questions at several stages of the dispute settlement process. Arbitration is available as an alternative to dispute resolution
by panels and the Appellate Body (Art. 25 DSU), although it is a possibility that has so far very rarely been used. Arbitration results
are not appealable but can be enforced through the DSU ( Art. 21 and 22 DSU).
Much more frequent are two other forms of arbitration foreseen in the DSU for specific situations in the process of implementation
(i.e. after the DSB has adopted a panel (and, if applicable, an Appellate Body) report, and the “losing” party is bound to implement
the DSB rulings and recommendations):
a) the establishment of the “reasonable period of time” granted to the respondent for implementation (Art. 21.3(c) DSU);
b) where a party subject to retaliation may also request arbitration if it objects to the level or the nature of the suspension of
obligations proposed (Art. 22.6 DSU).

*Dispute Settlement Process (3 stages)

1) Consultation (60 days): When dispute emerges, the disputing parties are first asked to enter into consultation and to seek an
agreement. The request for consultations formally initiates a WTO dispute and triggers the application DSU. The complaining
Member addresses the request for consultations to the responding Member, but must also notify the request to the DSB and to
relevant Councils and Committees overseeing the agreement(s) in question (Art. 4.4 DSU). Members have to submit their
notification to the Secretariat, specifying the other relevant Councils or Committees.
-> Consultations typically take place in Geneva and are confidential (Art. 4.6 DSU), which also means that the WTO Secretariat is
not involved. The fact that they take place behind closed doors also means that the details of what happens there aren't revealed to
any future panel assigned to the case.
Unless otherwise agreed, the respondent must reply to the request within ten days and must enter into consultations in good faith
within a period of no more than 30 days after the date of receipt of the request for consultations. If the respondent fails to meet any
of these deadlines, the complainant may immediately proceed to the adjudicative stage of dispute settlement and request the
establishment of a panel (Art. 4.3 DSU).
-> Time period for consultation is up to 60 days. However, the consultation stage can also be concluded earlier if the parties jointly
consider that consultations have failed to settle the dispute (Art. 4.7 DSU).
-> If this fails, then they can ask WTO director general for mediation or help in other forms; or the complaining party may request the
establishment of a panel to adjudicate the dispute.
-> In cases of urgency, including those that concern perishable goods, Members must enter into consultations within a period of no
more than ten days after the date of receipt of the request. If the consultations fail to settle the dispute within a period of 20 days
after the date of receipt of the request, the complaining party may request the establishment of a panel (Art. 4.8 DSU).
NB: Even when the case has progressed to other stages, consultation and mediation are still always possible.
A WTO Member that is neither the complainant nor the respondent may be interested in issues that are being discussed during the
consultation. This can be caused by a variety of factors, e.g. a trade interest of this Member may make it equally offended by the
challenged measure, or the latter may be beneficial to it, or it may be concerned about the challenge because the it maintains a
measure that is similar to the respondent's. The Member in question may also have an interest in engaging in talks on any mutually
agreeable solution because such a solution may affect its interests. Such other Member MAY request to join consultations if it has a
substantial trade interest in the matter being discussed.
2) A request for the establishment of a panel must be made by the complaining party in writing and is addressed to the Chairman
of the DSB. This request becomes an official document in the dispute in question. It must be filed at least 11 days in advance (Rule
3 of the Rules of Procedure), and must indicate whether consultations were held, identify the specific measures at issue, and
provide a brief, but sufficiently clear, summary of the legal basis of the complaint (Art. 6.2 DSU).
Establishing panels is one of the functions of the DSB and is one of the three situations in which the decision of the DSB does not
require a consensus. In the first DSB meeting in which such a request is made, the responding Member can still block the panel’s
establishment, as was the case in the dispute settlement system under GATT 1947. At the second DSB meeting where the request
is made, however, the panel will be established, unless the DSB decides by consensus not to establish the panel (i.e. the “negative”
consensus rule applies (Art. 6.1 DSU)). This second meeting usually takes place around one month later.
NB: The rule of negative (or reverse) consensus means that the complainant ultimately has a guarantee that the requested panel
will be established if it so wishes. The only possibility to prevent the establishment is a consensus in the DSB against establishment,
but this will not happen as long as the complainant is unwilling to join in that consensus. In other words, as long as the complainant,
even alone and against the opposition of all other WTO Members, insists on the establishment of the panel, it is impossible for the
DSB to reach a consensus against establishment. Therefore, one speaks of a virtually automatic DSB decision to establish a panel.
NB: It is possible for third parties to join consultations only with the respondent’s acceptance (and in the case of non-acceptance,
there is no recourse to enforce participation), but any Member who invokes a systemic interest, in practice, is admitted to a panel
procedure as a third party without any scrutiny whether the interest truly is “substantial”.
QUESTION: What if there are multiple complainants?
In the case of multiple complainants, i.e. more than one Member requesting the establishment of a panel related to the same matter,
Art. 9.1 DSU applies and calls for the DSB, whenever feasible, to establish a single panel to examine these complaints taking into
account the rights of all Members concerned.
2) Panels’ composition — panels must be composed ad hoc for each individual dispute, with the selection of three or five members,
pursuant to procedures laid down in the DSU (Art. 8 DSU). Panels are composed of three persons unless the parties to the dispute
agree, within ten days from the establishment of the panel, to a panel composed of five panelists (Art. 8.5 DSU). The Secretariat
proposes nominations for the panel to the parties to the dispute (Art. 8.6 DSU). Potential candidates must meet certain
requirements in terms of expertise and independence (Art. 8.1 and 8.2 DSU).
3) Panel’s procedure — first draws up a calendar for the panel’s work (Art. 12.3 DSU). The procedure is primarily set out in Art. 12
and Appendix 3 to the DSU, but offers a certain degree of flexibility. The panel can follow different procedures after consulting the
parties (Art. 12.1 DSU);
- an exchange of submissions between the parties — Secretariat receives these submissions and transmits them to the other party
or parties to the dispute (Art. 12.6 DSU), all of these submissions are kept confidential but the parties are free to disclose their own
submissions to the public (Art. 18.2 DSU);
- first oral hearing, called the first substantive meeting, parties present their views orally;
- panel examines the correctness of the complainant’s claim that the respondent has acted inconsistently with its WTO obligations;
4) Final Panel Report to Parties (6 months; in case of urgency - 3 months from the date of its composition, Art. 12.8 DSU);
- Divided into two main parts: the so-called “descriptive part” and the “findings.” Where the panel concludes that the challenged
measure is inconsistent with a covered agreement, the panel report also contains a recommendation that the responding Member
bring the challenged measure into conformity with WTO law (Art. 19.1 DSU), or a suggestion of ways in which the Member
concerned could implement the recommendation.
- When the panel considers that it cannot issue its report within six months, the period from the establishment of the panel to the
circulation of the report to the Members “should” in no case exceed nine months (Art. 12.9 DSU).
5) Final Panel Report to WTO (3 weeks). Officially, the panel is helping the DSB make rulings or recommendations. But because
the panel’s report can only be rejected by consensus in the Dispute Settlement Body, its conclusions are difficult to overturn. The
panel’s findings have to be based on the agreements cited.
DSB must adopt the report no earlier than 20 days, but no later than 60 days after the date of its circulation to the Members, unless
a party to the dispute formally notifies the DSB of its decision to appeal or the DSB decides by consensus not to adopt the report
(Art. 16.4 DSU). If a party has notified its decision to appeal, the panel report cannot yet be adopted, given that the Appellate Body
could modify or reverse it. In that case, the panel report will be considered for adoption by the DSB only after completion of the
appeal (Art. 16.4 DSU).
6) Provision of Appeal - Appellate Body Setup (60-90 days):
- Panel report must be appealed BEFORE it is adopted by the DSB; there is no deadline for filing the appeal, but the appellant must
notify the DSB of its decision to appeal before the adoption of the panel report. This adoption may take place, at the earliest, on the
20th day after the circulation of the panel report and it must (in the absence of an appeal and of a negative consensus against
adoption) occur within 60 days after the circulation.
- ONLY the parties to the dispute, NOT the third parties, can appeal the panel report. Both the “winning” and the “losing” party (i.e.
more than one party) can appeal a panel report. Art. 17.4 DSU provides that third parties may make written submissions to, and be
given an opportunity to be heard by, the Appellate Body.
- Appeals must be based on points of law like legal interpretation of the text (e.g. the legal appreciation of facts, or, in other words, a
panel’s application of a legal rule to specific facts, is a legal question and subject to appellate review). However, they CANNOT re-
examine existing evidence or examine new issues. The Appeal can support, modify or reverse the Panel’s legal findings and
conclusions. Appeals should not last more than 60 days and maximum of 90 days (Art. 17.5 DSU). The DSB has to accept or reject
the Appeals report within 30 days; rejection possible by consensus.
- The main differences between an oral hearing and a substantive meeting of the panel are: (i) there is only one oral hearing on
appeal; (ii) oral statements are kept short; (iii) an oral hearing rarely lasts longer than one full day; and (iv) the participants in an oral
hearing may not ask questions directly of each other.
- An Appellate Body report has two sections: the descriptive part and the findings section. The descriptive part contains the factual
and procedural background of the dispute and summarizes the arguments of the participants and third participants. In the findings
section, the Appellate Body addresses in detail the issues raised on appeal, elaborates its conclusions and reasoning in support of
such conclusions, and states whether the appealed panel findings and conclusions are upheld, modified or reversed. It also
contains additional relevant conclusions, for instance if the respondent has been found in violation of another WTO provision than
the one the panel addressed.
- Rule 30(1) of the Working Procedures permits an appellant to withdraw its appeal at any time. It falls within the discretion of WTO
Members not only to initiate disputes, but also to terminate them. The possibility of withdrawing an appeal reflects the preference
DSU for the parties to find a mutually agreeable solution to their dispute (Art. 3.7 DSU).
7) Report adoption by DSB — The DSB must adopt, and the parties must unconditionally accept, the Appellate Body report unless
the DSB decides by consensus not to adopt the Appellate Body report within 30 days following its circulation to Members (Art. 17.14
DSU). Art. 17.14 also specifically provides that the parties to the dispute must accept the Appellate Body report “unconditionally”, i.e.
accept it as resolution of their dispute without further appeal.
8) Implementation by the losing member — The first duty of the “losing” Member is to inform the DSB, at a meeting within 30
days after the adoption of the report(s), of its intentions to implement the recom- mendations and rulings of the DSB (Art. 21.3
DSU). If immediate compliance is not possible, the implementing Member has a reasonable period of time for achieving that
compliance (Art. 21.3 DSU). Reasonable period of time is a grace period granted to the Member concerned, during which it
continues to apply WTO-inconsistent measures, for bringing its measures into compliance. During that period, the Member
concerned will not (yet) face the consequences foreseen by the DSU in the event of non-implementation (i.e. the need to offer
compensation or face retaliation). The implementing Member bears the burden of proof to show that the duration of any proposed
period of implementation constitutes a “reasonable period of time”, and the longer the proposed period of implementation, the
greater this burden.
Surveillance by DSB: The DSB keeps implementation by a Member of its recommendations or rulings (in other words the
implementation of adopted panel (and Appellate Body) reports) under surveillance. At least ten days before each DSB meeting, the
Member concerned is required to provide the DSB with a written status report of its progress in the implementation (Art. 21.6 DSU).
*Non-implementation: If the losing MS fails to comply with its WTO commitments within a reasonable time, the prevailing
complainant has the right to seek interim relief, which might include compensation or the suspension of WTO obligations.
If the implementing Member does not achieve full compliance by the end of the reasonable period of time, it has to enter into
negotiations with the complaining party with a view to agreeing a mutually acceptable compensation (Art. 22.2 DSU). This
compensation does not mean monetary payment; rather, the respondent is supposed to offer a benefit, for example a tariff
reduction, which is equivalent to the benefit which the respondent has nullified or impaired by applying its measure. The parties to
the dispute must agree upon the compensation, which must also be consistent with the covered agreements (Art. 22.1 DSU).
Other measures: If, within 20 days after the expiry of the reasonable period of time, the parties have not agreed on satisfactory
compensation, the complainant may ask the DSB for permission to impose trade sanctions against the respondent that has failed to
implement. Technically, this is called “suspending concessions or other obligations under the covered agreements” (Art. 22.2 DSU).
The level of suspension of obligations authorised by the DSB must be “equivalent” to the level of nullification or impairment (Art.
22.4 DSU). This means that the complainant’s retaliatory response may not go beyond the level of the harm caused by the
respondent.
Concessions are, for example, tariff reduction commitments which WTO Members have made in multilateral trade negotiations.
Retaliation is the final and most serious consequence a non-implementing Member faces in the WTO dispute settlement system
(Art. 3.7 DSU). Although retaliation requires prior approval by the DSB, the countermeasures are applied selectively by one Member
against another.

*Non-implementation: If the losing MS fails to comply with its WTO commitments within a reasonable time, the prevailing
complainant has the right to seek interim relief, which might include compensation or the suspension of WTO obligations.
If the implementing Member does not achieve full compliance by the end of the reasonable period of time, it has to enter into
negotiations with the complaining party with a view to agreeing a mutually acceptable compensation (Art. 22.2 DSU). This
compensation does not mean monetary payment; rather, the respondent is supposed to offer a benefit, for example a tariff
reduction, which is equivalent to the benefit which the respondent has nullified or impaired by applying its measure. The parties to
the dispute must agree upon the compensation, which must also be consistent with the covered agreements (Art. 22.1 DSU).
Other measures: If, within 20 days after the expiry of the reasonable period of time, the parties have not agreed on satisfactory
compensation, the complainant may ask the DSB for permission to impose trade sanctions against the respondent that has failed to
implement. Technically, this is called “suspending concessions or other obligations under the covered agreements” (Art. 22.2 DSU).
The level of suspension of obligations authorised by the DSB must be “equivalent” to the level of nullification or impairment (Art.
22.4 DSU). This means that the complainant’s retaliatory response may not go beyond the level of the harm caused by the
respondent.
Concessions are, for example, tariff reduction commitments which WTO Members have made in multilateral trade negotiations.
Retaliation is the final and most serious consequence a non-implementing Member faces in the WTO dispute settlement system
(Art. 3.7 DSU). Although retaliation requires prior approval by the DSB, the countermeasures are applied selectively by one Member
against another.

*What next after ruling? The losing party must swiftly correct its fault, or, otherwise, offer compensation or suffer a suitable penalty
(if it continues to break an agreement), e.g. trade sanctions.
-> If the country that is the target of the complaint loses, it must follow the recommendations of the panel report or the appeal report.
It must state its intention to do so at a DSB meeting held within 30 days of the report’s adoption. If complying with the
recommendation immediately proves impractical, the member will be given a “reasonable period of time” to do so. If it fails to act
within this period, it has to enter into negotiations with the complaining country (or countries) in order to determine mutually-
acceptable compensation — for instance, tar-iff reductions in areas of particular interest to the complaining side.
-> If after 20 days, no satisfactory compensation is agreed, the complaining side may ask the DSB for permission to impose limited
trade sanctions(“suspend concessions or obligations”) against the other side. The DSB must grant this authorisation within 30 days
of the expiry of the“reasonable period of time” unless there is a consensus against the request.

*Other ways to solve disputes: Parties can settle a dispute by finding a mutually agreed solution in bilateral negotiations or with
the help of dispute resolution mechanisms such as good offices, conciliation or mediation. In addition, they can also agree to refer
their dispute to an arbitrator.

*Amicus Curiae submissions: Appellate Body maintains that it has the authority to accept and consider any information it
considers pertinent and useful in deciding an appeal, including unsolicited amicus curiae submissions. The Appellate Body believes
such a right flows from its broad authority to adopt procedural rules, provided they do not conflict with the DSU or the covered
agreements (Art. 17.9 DSU; Appellate Body Report, US – Lead and Bismuth II, para. 43).

*Prompt Settlement: Justice must not only produce a fair conclusion, but it must also be expeditious. As a result, the DSU specifies
in great detail the procedures and timelines to be followed in resolving disputes. The precise processes are intended to improve
efficiency, including the right of a complainant to proceed with a complaint even if the responder does not agree ( Art. 4.3 and 6.1
DSU). If a matter is adjudicated, a panel judgment should generally take no more than one year, and no more than 16 months if the
case is appealed (Art. 20 DSU). If the complainant believes the situation is urgent, the investigation should be expedited.

*Rules of Conduct: Persons called to participate in the dispute settlement process as panelists, Appellate Body members or
arbitrators must carry out their tasks in an impartial and independent manner. There must not be any ex parte communications (the
panel is not entitled to communicate with individual parties except in the presence of the other party or parties) between the parties
and the panel or Appellate Body members concerning matters under their consideration (Art. 18.1 DSU).
“Covered persons” are required to be independent and impartial, to avoid direct or indirect conflicts of interest, and to respect the
confidentiality of dispute settlement proceedings. A violation of any of these requirements by a covered person gives the parties to
the dispute a right to challenge the participation of that person in the dispute settlement proceeding and to request the exclusion of
that person from any further participation in the process. In the case of Secretariat staff, the challenge is addressed to the Director-
General.

Under which conditions WTO Members can invoke the provisions of the dispute settlement system? What constitutes a
valid basis for a complaint by one Member against another?
The basis or cause of action for a WTO dispute must be found in the “covered agreements” (Art. 1.1. DSU), i.e. in the provisions on
“consultation and dispute settlement” contained in those WTO agreements.
- Violation complaint: when the respondent fails to carry out its obligations under GATT 1994 or the other covered agreements, and
this leads to the nullification or impairment of a benefit accruing to the complainant under these agreements. If it can be established
before a Panel and the Appellate Body that these two conditions are satisfied, the complainant will “win” the dispute.
- Non-violation complaint: requires the complainant to “present a detailed justification in support of any complaint relating to a
measure which does not conflict with the relevant covered agreement”.

Against what can the complaint be directed? For example, in a violation complaint, what types of action by a Member are
covered by a commitment in a covered agreement? Can only acts of administrative authorities be challenged or also
legislative acts? Can the complainant invoke the dispute settlement system only against legally binding acts of Members
or also against non-binding acts taken by the Members’ authorities? Can the challenge only be directed against
governmental conduct or also against behaviour of private individuals? Can it be directed only against positive action or
also against omissions, i.e. the failure to act?
- If a complaint is based on a provision that prohibits certain actions (e.g. Art. XI of GATT 1994 which prohibits, among other things,
export restrictions), only positive action (e.g. a law, regulation or decision impeding the exportation of goods to other WTO Members
or other forms of measures imposing restrictions) can violate such a provision. Inaction as such (the failure to adopt such a law,
regulation or decision) could not breach this obligation.
The situation is different under WTO agreement provisions that do not prohibit certain behaviour, but rather require positive action.
Accordingly, inaction or an omission will be at the heart of a violation complaint which can be brought in a situation where a Member
has either done nothing, i.e. not passed any laws, or where the laws passed and applied for some reason do not meet the required
standards.
NB: ONLY government measures can be the object of WTO complaints.
Concerning violation complaints, it is recalled that the WTO Agreement is an international agreement binding the WTO Members
under public IL. The obligations contained in the WTO Agreement, as such, therefore bind only the signatory States and separate
customs territories. It follows that non-governmental, private actors cannot infringe these obligations. However, there can be
instances in which certain private behaviour has strong ties to some governmental action. Whether this permits the attribution of the
private behaviour to the Member in question, and therefore is actionable under the WTO, will obviously depend on the particularities
of each case.

Under traditional public IL, subjects of IL, typically States, are responsible for the activities of all branches of government within their
system of governance, and also for all regional levels or other subdivisions of government. This principle also applies in WTO law,
except where the covered agreements expressly deal with this question and exclude acts taken by regional or local governments
from the coverage of certain obligations. Art. 22 DSU specifically confirms that the dispute settlement system can be invoked in
respect of measures taken by regional or local governments or authorities within the territory of a Member.
- WTO complaints are often directed against specific administrative measures taken by authorities of a Member pursuant to
domestic laws. For example, claims about taxes which discriminate against imports and contravene Art. III:2 of GATT 1994 are
typically directed at the tax legislation and not at the tax imposed on a specific shipment of goods at a specific time in the recent
past.

What if there are multiple complainants? In the case of multiple complainants, i.e. more than one Member requesting the
establishment of a panel related to the same matter, Art. 9.1 DSU applies and calls for the DSB, whenever feasible, to establish a
single panel to examine these complaints taking into account the rights of all Members concerned.

*Developing countries: So far, the complainant in the majority of WTO disputes has been a developed country, and the same is
true for respondent. Given that developing nations make up the vast majority of WTO members, one may argue that developed
countries make excessive use of the dispute settlement mechanism. However, jumping to this conclusion ignores the reality that
these Members, who are complainants and respondents in the vast majority of WTO disputes, account for the vast bulk of global
commerce.

*Differential treatment? Developing countries have the option of requesting a speedier procedure, a longer time limit, or legal aid.
Members of the WTO are encouraged to pay special attention to the situation of developing countries. During consultations, the
parties may agree to extend the usual consultation periods if the subject of the consultations is a measure adopted by a developing
country Member. When a disagreement arises between a developing country Member and a developed country Member, the panel
must include at least one panelist from a developing country Member at the developing country Member's request (Art. 8.10 DSU).
The DSU requires that special attention be paid to concerns impacting the interests of developing country members throughout the
implementation stage (Art. 21.2 DSU)

Which is more important: transparency through public access to written and oral pleadings or participation in the form of
a right to attempt to influence the outcome by the submission of an amicus brief?
If the latter has become a hindrance to the former, and given that amicus briefs appear to have had no influence on panel or AB
decisions, there appears to be cause for halting the amicus brief procedure until more transparency can be worked out.

Recommendation: What should Members do to move ahead on transparency?

For starters, they should put an end to the existing practice of amicus briefs for a set amount of time. They should then make it such
that panel and AB proceedings are open to the public, and that the parties' pleadings become public documents once they are
submitted with the panel or the AB. Confidentiality clauses should be included. They can then work on a restricted type of intervener
procedure that would enable input from groups with specific expertise to replace the current amicus brief method, which allows
anybody to write an amicus brief, with the result that amicus briefs have had little impact on dispute resolution.

*ISDS: When the host state's activities have a negative impact on foreign investors' investments, the latter may find themselves in a
conflict with the host state. When an investor wants to contest a host state's decision, he usually has two options:
1) the domestic court route, which in most cases directly applies domestic property rights laws;
2) the IL route, which can take one of two forms: a) an indirect challenge via state-to-state dispute settlement, using diplomatic
protection, or b) a direct challenge via investor-state dispute settlement (ISDS).
In contrast to the diplomatic protection procedure, where the investor is represented by its home state in actions against the host
state, investors under the ISDS system have direct access to IL protection.

*Why ISDS? International investment arbitration has accelerated dramatically in recent decades. A rapidly increasing network of
international treaties has significantly improved foreign investment protection and provided investors with direct recourse against
host governments.
ICSID's judgments are 'more enforceable' than national court decisions, and they are not subject to local sovereign immunity
legislation.

*History: The signing of first investment protection treaties were necessitated when capital importing countries needed to reassure
investors of favourable environment for accepting foreign investments and capital exporting countries needed guarantees for their
investments. Despite the fact that the first such BIT, negotiated between Germany and Pakistan in 1959, did not include an ISDS
clause, it paved the way for future such treaties and the idea to form a multilateral investment protection scheme. These first-
generation treaties specified that where problems arose over the treaty's interpretation or implementation, such disagreements
would be brought to the ICJ for resolution if both parties consented. The procedure, on the other hand, was supposed to start with
consultations between the parties to find a solution "in the spirit of friendship." If the parties were unable to reach an agreement at
the ICJ, the treaty provided for disputes to be resolved through arbitration. Three arbitrators, appointed through a mixed commission
process, would decide on the outcome of this arbitration.
In the mid-XX century, BITs complemented interstate dispute resolution by permitting investors to pursue claims directly against host
countries. When a government violated IL, an investor's options for redress were previously limited to one of four options: (1)
negotiating directly with the host government; (2) suing the host government in the sovereign's own courts, where sovereign
immunity defenses may be readily available; (3) requesting the home government to negotiate diplomatically with the host
government; or (4) requesting the home government to sue the host government before the ICJ (if the latter had jurisdiction).
While some of these options may have been beneficial in resolving disputes, they were frequently ineffective. If a home nation sued
on an investor's behalf, it was unclear if the investor would be compensated financially for its damages.

*Merits: 1) Allows individuals and corporations to have a legal standing in claims against governments.
2) The compliance rate with the ICSID arbitral awards is deemed to be good.
3) ICSID system was innovative in many ways, not only with regard to the legal standing of individuals and generating large
monetary awards. The fact that investors were no longer required to exhaust the local remedies before bringing a claim was a brave
step forward.
4) The automatic obligation to comply with the ICSID arbitral awards under Art. 53 of the ICSID Convention, as well as the fact that
the awards can be enforced as final awards in any Contracting State to the ICSID Convention, improved the system's overall
efficiency.
5) A harmed investor may be entitled to monetary compensation or other types of recourse if a State is determined to be in violation
of its treaty commitments. The availability of such remedies, in theory, provides incentives for States to honour their investment
treaty obligations. As a result, ISDS serves as both an enforcement tool that encourages compliance and a way of compensating
investors harmed by the violations investment treaty obligations.

*Critiques: Many critiques have been voiced, such as a lack of democratic accountability, extensive confidentiality and lack of
transparency, lack of representation of developing countries among arbitration panels, bias, high costs (attributable to limited
arbitrator availability), alleged subordination of public interests to commercial interests.
1) Lack of transparency in proceedings, as confidentiality is the central characteristic of arbitration and parties’consent is required to
publish information on the disputes.
2) Inconsistency and unpredictability in decision-making by arbitrators (though this is largely owing to the wide range of wordings
used in various investment treaties, it has resulted in increased ambiguity and unpredictability rather than increased legal certainty).
Since each tribunal interprets the ICSID Convention, different interpretations of the same ICSID Convention provision might give
rise to conflicts.
3) Expansionism: arbitral interpretations can occasionally extend the States' commitments beyond the meanings of the BIT
provisions. Investment treaty terms are read in a manner not envisaged by the original drafting.
4) No appellate mechanism to correct substantive errors.
Moreover, the ICSID Convention's annulment mechanism is currently quite restricted. An annulment can only be achieved under
Art. 52 of the Convention for the following reasons: the tribunal was not properly constituted; a fundamental procedural rule was not
respected; tribunal exceeded its powers or it did not state the reasons for its award; and corruption of one of the tribunal
members.
5) Arbitrators tend to decide in favour of investors. In motivating its decision to leave the ICSID, Venezuela mentioned that ICSID, of
the 234 registered cases, it had ruled in 232 times in favour of transnational interests. Since only investors file claims, the need to
preserve the system leads to an overabundance of focus on investor interests.
According to some critics, investment arbitration hearings are hampered by the arbitrators' lack of independence and impartiality. If
accurate, such charges might have serious ramifications and raise real worries about the system's long-term stability. Such charges,
however, must be examined and evaluated on a case-by-case basis, rather than as a blanket objection to the investment arbitration
system. To put it another way, it is up to the parties in a particular dispute to prove the arbitrators' independence and impartiality, as
well as any other procedural anomalies, by challenging them.
6) Cost and time ( costs of proceedings are too high for small- and medium-sized enterprises(SMEs)). The resources available to
wealthy investors may overwhelm developing countries with limited expertise in international litigation and small in-house legal
departments. Small and medium investors may be unable to get justice due to high expenditures.
7) Some view int-l investment arbitration as a threat to state sovereignty and express concern that ICSID arbitration might "shift
bargaining power" away from the country of default.
8) Bolivia, for example, has withdrawn from the ICSID Convention, claiming prejudice and voicing concerns about the absence of an
appeals system and the confidentiality of ICSID hearings. This didn't have the domino effect however.
9) International arbitral tribunals have allowed third-party involvement via amicus curiae briefs. Despite this, confidentiality still
concealed much of the pleadings and even the decision-making process. This makes amicus curiae participation hard to achieve,
and the public is left to speculate on the reasonings behind the outcome.

*What is ISDS? Investor-state Dispute Settlement (ISDS) or Investment Court System (ICS) is a mechanism that allows investors
from one country (the 'home state') to make claims against the government of another (the 'host country') for breaching the
investor's rights under public IL. The claims are adjudicated by an international tribunal through ad hoc arbitration. Thus, the
investor may sue the host state in neutral arbitration (neutral forum through binding international arbitration) rather than in the
domestic courts of the host state.
It is useful because without ISDS provisions, to enforce its rights, an investor would normally need to seek the intervention of the
government of its home state. ISDS protections and remedies are more favourable than local law protections available to domestic
investors. The major argument for this protection system is the necessity to avoid domestic courts in order to provide an impartial
and effective dispute settlement mechanism between the host-state and the investor. Issues of lack of impartiality or immunity could
be avoided by providing a forum outside of the home courts. The domestic courts in question are, of course, those of the state party
to the case, a condition that makes achieving the aim of a totally impartial procedure problematic, if not in reality, at least on the
surface.

*Where are ISDS clauses? ISDS provisions are most commonly contained in international agreements including free trade
agreements (e.g. NAFTA), bilateral investment treaties, multilateral investment agreements, but they may also be found in national
investment laws, and investment contracts. Thus, ISDS' legal basis is made up of provisions for dispute resolution in over 3000
investment treaties, as well as other international conventions (such as the ICSID Convention and the New York Convention) and
arbitration rules.

*Institutional set-up: ad hoc, party-appointed arbitration panels, emphasis on speed and finality of findings.

*ICSID's purpose? To provide arbitration, conciliation, and fact-finding facilities in conformity with the ICSID Convention and Rules,
as well as the ICSID Additional Facility Rules. The Secretary General may function as an appointing authority or as the authority
determining a motion to dismiss an arbitrator in non-ICSID conflicts, while the Centre also administers non-ICSID proceedings.

*When can a claim be brought and what are the protections? If any of the substantive protections or obligations that the foreign
investors are entitled to are breached, the breach gives the investors the right to bring a claim directly against the host state.
Common substantive protections (breach of which may give rise to an ISDS claim) include: fair and equitable treatment, full
protection and security, national treatment, most favoured nation treatment, no expropriation without full (and prompt) compensation
and free transfer of capital.

*Remedies under ISDS: monetary compensation (most common), declaratory relief, restitution, interim relief whilst proceedings are
ongoing (incl. interlocutory measures to compel or restrain a party from certain conduct).

*Do ISDS protections/remedies differ from those available to domestic investors under national laws? May be more
advantageous. The host state's local legislation, for example, may allow the state to expropriate property without compensation or
for less than full recompense. As a result, a local investor would be helpless in the face of governmental expropriation. A foreign
investor, on the other hand, may have extra rights if an applicable treaty allows for full (and quick) compensation, and so may seek
compensation through international arbitration under the treaty framework.

*Who can bring a claim? A claimant may be either an individual or an organisation (medium and large multinational enterprises,
small investors, domestic investors that incorporate overseas, etc), which must satisfy nationality criteria by demonstrating that they:
a) are a national of a state that is a party to the treaty containing the ISDS agreement; b) have an investment in the territory of
another state that is a party to the treaty.
More importantly, the parties must both be part of a treaty (ICSID, BIT or other bilateral/multilateral agreements).

*How does ISDS work? The patterns are different, but generally both ISDS and state-to-state mechanisms will normally consist of
two procedural phases:a consultation phase and a dispute resolution phase. Most treaties will first require consultation for
the parties to agree on a settlement of the dispute without reaching the confrontational proceedings of the dispute phase. The
consultation phase is normally confidential and, accordingly, the least transparent part of the whole proceeding. The
proceedings enter the dispute phase if the parties are unable to reach a settlement in the consultation phase.The dispute
phase can take place in front of different fora, depending on the agreement under which the parties have initiated proceedings.
ISDS uses a variety of mechanisms, depending on the applicable investment treaty and arbitration norms, although ad hoc panels
are the most common. Parties typically nominate these, in whole or in part, although appointing authorities are also commonly
involved. In non-ICSID matters, awards are reviewed by ad hoc annulment committees formed by ICSID or by national courts.

Procedure: 1) Claimant notifies the host state in a notice provision;

2) Claimant and host state attempt to resolve the dispute on their own;
3) Claimant exhausts local remedies and no other pre-conditions (e.g. mediation) apply;
4) Claimant commences arbitration. ISDS agreement will typically stipulate the rules that will apply to the proceedings. Common
rules include the ICSID Arbitration Rules, ICSID Additional Facility Rules, UNCITRAL Arbitration Rules and ICC Rules of Arbitration;
5) The seat of the arbitration is either defined in the ISDS agreement, or, if not, - determined by the tribunal.
6) Tribunal consists of three arbitrators. Each party may nominate an arbitrator to the panel.
7) Tribunal sets the procedure and timetable.
8) Written phase (legal briefs with supporting evidence) and oral phase (hearing legal arguments).

*Compliance: The ICSID Convention contains two provisions regulating the compliance with arbitral awards. Art. 53(1) requires the
disputing parties to ‘abide by and comply with the terms of the award’, whereas Art. 54(1) obliges every ICSID Contracting Party to
recognise ICSID awards as binding. Non-ICSID Convention awards are subject to the international obligations set out in the 1958
New York Convention, pursuant to which States are obligated to recognise arbitral awards as binding.
States have also assumed express obligations to abide by investor–State awards in their BITs. For instance, some BITs require the
State Parties to ‘carry out’ an award ‘without delay’ and ‘provide for the enforcement’ in its territory (e.g. Energy Charter Treaty, art.
26.8). Some treaties set out special mechanisms, such as the constitution of a tribunal with the power to order compliance with the
award (e.g. Australia-Hong Kong Investment Agreement, art. 35.10).
The 2010 UNCITRAL Arbitration Rules (art. 34.2), the 2017 ICC Rules (art. 35.6) and the 2017 SCC Rules (art. 46) all require the
parties to ‘carry out’ arbitration awards ‘without delay’.

*Consequences of non-compliance: It encourages the repoliticization of conflicts. When the host State fails to cooperate and
enforcement procedures are ineffective, the investor only has one option: to resort to its own country. The ICSID's 'basic goal,' as
well as the modern international investment system in general, is to depoliticize investment-related conflicts. To this end, the ICSID
Convention prohibits diplomatic protection in relation to a dispute that an investor and a State have agreed to arbitrate, with one
exception: in the event that a State fails to comply with an award, an investor may request diplomatic pressure on the host State
from its home state.

*How are ISDS awards enforced? Two primary enforcement regimes when an award is not complied with voluntarily:
If the award is an ICSID award, it will be enforced under ICSID convention (153 signatories), which asserts that final awards must
be recognised as final national judgments.
In case of non-ICSID arbitrations, it may be enforced he New York Convention on the Recognition and Enforcement of Foreign
Arbitral Awards 1958 (NY Convention). 157 Contracting States. The NYC makes it easier to comply with foreign awards by limiting
the grounds on which a court might refuse to accept or enforce them.
Execution against a state's assets may be hampered by sovereign immunity. The difficulty in enforcing against States stems from
the coexistence of two principles: the State's sovereign immunity from execution over non-commercial assets and the independent
legal personality of State institutions that frequently hold title over the State's commercial assets.

*Investors: 1) Natural persons: When deciding or establishing a natural person's nationality, the first consideration is state
sovereignty. Most BIT provisions relate to the contracting states' domestic laws for determining a natural person's nationality, since
they are responsible for determining the criteria for identifying their nationals. But what if a NP is a national of both state parties to
the dispute? Under ICSID Convention, NP cannot sue states they are nationals of (Art. 25(2)(a)). When deciding whether an
individual qualifies as a citizen of another ICSID Contracting State, formal nationality takes precedence over dominant nationality in
this circumstance. However, this provision only applies when the applicable law is the ICSID Convention; there is no distinct stated
bar on dual nationals in the BIT itself when the applicable law is UNCITRAL arbitration rules.
2) Legal entities: must be formed under the laws of one of the contracting parties in most BITs. Legal entities created in the host
state get treaty protection if a) they are controlled by entities incorporated in the other contracting state, and (b) both states have
agreed in the applicable treaty to extend the protection of the treaty to such controlled entities. This exception is expressly permitted
by Art. 25(2) (b) of the ICSID Convention: "National of another contracting state means: any judicial person which had the
nationality of the contracting state party to the dispute and which because of foreign control, the parties have agreed should be
treated as a national of another contracting state for the purposes of this convention."

*Arbitrators: ICSID arbitral tribunals consist of three persons, one appointed by each party and a third (presiding) arbitrator
appointed by agreement of the parties or by ICSID if there is no such agreement within a certain time limit. All ICSID arbitrators
must be persons of high moral character and recognised competence in the fields of law, commerce, industry or finance, who may
be relied upon to exercise independent judgment (ICSID Convention Art. 14(1) & 40(2)). An arbitrator may be disqualified if he/she
manifestly lacks any of these qualities. In case of ICSID proceedings, it is also provided that in case of an arbitrator’s presumable
bias, parties may bring an adequate action against this member of the arbitral tribunal. Indeed, in recent ICSID cases (e.g.,
Caratube v.Kazakhstan; Blue Bank v. Venezuela; and Burlington Resources, Inc. v. Republic ofEcuador) arbitrators were
successfully disqualified on the basis of these circumstances.
Similarly, the 2010 UNCITRAL Rules provide that ‘any arbitrator may be challenged if circumstances exist that give rise to justifiable
doubts as to the arbitrator’s impartiality or independence.’ Finally, the SCC Rules also oblige individuals serving as arbitrators to be
independent and impartial. Interestingly, a challenge may be brought not only in circumstances giving rise to justifiable doubts as to
the arbitrator’s impartiality or independence, but also if an arbitrator does not possess qualifications agreed by the parties.
Arbitrators must be selected for each case either by the parties or a by a third-party institution. Both the ICSID and UNCITRAL rules
provide for each party selecting one arbitrator unless the parties agree on another method.
In practice, parties often pick arbitrators who are sympathetic to their cause and can persuade the other two arbitrators (especially
the presiding arbitrator) of their case's validity.
- Regulation: International arbitrators are regulated by various rules and standards, which are found in international treaties,
domestic laws and arbitral rules. In non-ICSID arbitration, arbitrators are primarily regulated by (i) the applicable arbitration rules, if
any; and (ii) the laws of the State of the seat of the arbitration. Thus, in an UNCITRAL case sited in Paris, the primary sources of
applicable rules for arbitrators would be the UNCITRAL Rules and French arbitration law. In practice, in non-ICSID arbitration,
arbitrators may frequently have considerable power to select the applicable national arbitration law.

*Mediation: ICSID offers conciliation services. When ICSID receives a request for arbitration, it alerts the parties to the possibility of
conciliation. Mediation, rather than the more formal conciliation procedures, may be a more successful way of finding an agreeable
solution in some circumstances.

*Arbitration: Arbitration is a dispute resolution method by which the parties to a dispute agree to submit their dispute to
a third party (the arbitrator or arbitrators) according to agreed-upon norms and procedures,and to carry out that third
party’s decision.
Arbitral tribunals are not permanent tribunals; instead they are set up at the request of parties when a conflict arises. Arbitral
tribunals are normally hosted within the administrative framework of institutions such as the International Centre for Settlement
of Investment Disputes (ICSID), International Chamber of Commerce (ICC), theStockholm Chamber of Commerce's Institute of
Arbitration (SCC), the London Court ofInternational Arbitration (LCIA) and the Permanent Court of Arbitration (PCA).
With the exception of ICSID, all institutions can host arbitration of disputes by any parties as long as they agree to begin
arbitration proceedings under these institutions. ICSID normally only has jurisdiction over conflicts arising between member
parties to the ICSID Convention. In cases of disputes between, on the one hand, a member state or investor from a member state
and, on the other hand,an investor from a non-member or non-member state, ICSID can still have jurisdiction under the additional
facility rules.

*Costs: Vary from case to case and usually include arbitration costs (cost of the tribunal's fees, any institutional fees) + costs of
prosecuting or defending a claim (legal fees, expert fees, travel costs). No universal principle exists as to who bears the costs,
either ISDS agreement stipulates how costs are allocated, or the loser pays.

*What happens when a country withdraws from a treaty with an ISDS agreement? Most treaties containing ISDS agreements
provide that the treaty protections (including ISDS) will continue to apply for a certain period (typically 10-15 years) after a country
withdraws from the treaty.

*Difference from WTO:

WTO: only states can bring cases; has a two-tiered system of ad hoc panels and AB; panels' members are appointed by agreement
of the parties or by the WTO Director-General, AB members are appointed by consensus of all WTO members. ICSID: arbitration
under UNCITRAL (UN Commission on International Trade Law), offers private standing to companies and individual investors, lacks
appellate review, and tribunals consist of 3 individuals (each party appoints one, the parties then agree on a president, but if there is
no agreement, then the World Bank president nominates).
ISDS generates large monetary awards, while WTO's remedy is the withdrawal of the WTO-inconsistent measure by the respondent
state.

*ICSID: serves as an arbitration body for investment disputes between nation-states and foreign investors. It has jurisdiction over
investment disputes originating from BITs entered into by nation-states that are parties to the ICSID Convention if the prerequisites
for jurisdiction are satisfied. The ICSID does not conduct arbitration or conciliation procedures directly, but rather provides
institutional and procedural assistance to conciliation commissions, tribunals, and other groups that do. The center follows two sets
of regulations: the ICSID's Convention, Regulations and Rules (which lay forth the procedures for initiating and conducting an
arbitration case, from the formation of the arbitral panel to the preparation of its award), and the ICSID's Additional Facility Rules
(which includes provisions, inter alia, authorising ICSID Secretariat to administer arbitration proceedings for the resolution of
investment disputes where either the State party to the dispute or the foreign national's home State is not a Contracting State of the
Convention).

*ICSID Composition: Panel of Arbitrators and a Panel of Conciliators (Art. 3). The Administrative Council is the governing body of
the ICSID, and it has no role in the administration of the cases. It mainly adopts the Rules and Regulations of the Centre and
approves the annual reports and the budget of the ICSID. It is formed by the representatives of the Member States or, in their
absence, by the governors of the World Bank of each Member State. The President of the Bank is the Chairman of the
Administrative Council, but has no vote in the Council (Art. 5). The Secretariat consists of a Secretary General, one or more Deputy
Secretaries General and staff. ICSID also maintains a Panel of Conciliators and a Panel of Arbitrators. Pursuant to Art. 13 of the
ICSID Convention, each Contracting State may designate to each Panel four persons who may, but need not, be its nationals. The
Chairman of the Administrative Council may designate ten persons to each Panel, each with a different nationality. The designation
of the arbitrators and conciliators in the Panels of the ICSID is important in the context of Art. 30, 38 and 52 of the ICSID
Convention, when the Chairman of the Administrative Council is called upon to appoint the arbitrators and conciliators.

*ICSID Jurisdiction: Art. 25 ICSID Convention: "any legal dispute arising directly out of an investment, between a Contracting State
... and a national of another Contracting State, which the parties to the dispute CONSENT in writing to submit to the Centre. Where
the parties have given their consent, no party may withdraw its consent unilaterally."
Thus, two layers of consent are needed (being a signatory to the Convention, and expressly consenting to ICSID's jurisdiction), and
using ICSID conciliation and arbitration is completely VOLUNTARY.
Art. 25(1) requires that the case is a legal dispute arising directly out of an investment. The term 'legal dispute' emphasises that
while conflicts of rights are within the jurisdiction of the Centre, mere conflicts of interests are not. The dispute must be over the
existence or scope of a legal right or obligation, or the nature or scope of the reparation to be paid in the event of a legal obligation
being breached.
The Convention, on the other hand, does not define the term investment and instead leaves it up to contracting nations to do so, for
example through BIT provisions. Case-law of ICSID has developed a "tool" for defining the term "investment." To be more explicit,
the first stage is to "pass" the so-called "Double Keyhole Test," followed by the "Saline Test":
1) Double Keyhole: The ICSID on the case “Ceskoslovenska Obchodhni Banka AS v The Slovak Republic” ruled as follows: “A two-
fold test must therefore be applied in determining whether this Tribunal has the competence to consider the merits of the claim:
whether the dispute arises out of an investment within the meaning of the Convention and, if so, whether the dispute relates to an
investment as defined in the Parties’ consent to ICSID arbitration, in their reference to the BIT and the pertinent definitions
contained in Art. 1 of the BIT.” (para 68)
2) Saline v Morocco case: “ Art. 25 of the ICSID Convention requires that the dispute arises directly from an investment, but
provides no definition of investment. While there is incomplete unanimity between tribunals regarding the elements of an
investment, there is a general consensus that the three objective criteria of (i) a contribution, (ii) a certain duration, and (iii) an
element of risk are necessary elements of an investment. The so-called Salini test, often referred to by tribunals, adds the
criterion of a contribution to the economic development of the host state." (para 5.43)

*Consent: One of the fundamental aspects of an arbitration provision is consent, which states that the parties agree for any and all
disputes between them to be settled through arbitration (commercial arbitration). Consent is frequently set in the wording of
investment treaties in the context of investment disputes.

*Can parties avoid preconditions to arbitration (e.g. written notification, prior amicable consultations, requirement to
pursue remedies before the courts of the host state prior to commencing arbitration) through legal means or tools?
Yes. One example is using the applicable treaty's MFN clause ("Most Favoured Nation" treatment), to get access to more favourable
preconditions in other treaties signed by the host state. Nonetheless, whether MFN clauses may be applied to dispute settlement
clauses in investment treaties is a point of contention. The language of the MFN clause of the Spanish treaty was found to accept
the dispute settlement provisions of the Spain-Chile treaty by an ICSID tribunal in the Maffezini case. Thus, Maffezini can submit the
case to international arbitration without first litigating in Chile, based on the MFN provision in the Chile-Spain treaty and Spain's goal
of generally ensuring for its investors the ability to seek foreign remedies without prior national litigation.

When in a BIT the State and the Investor have given their consent to arbitration but at the same time there is an exclusive
choice-of-forum clause (contractually elected jurisdiction) in a related investment contract, which of them prevails: the
Bilateral Investment Treaty or the contractual clause?
It depends. Each claim has its own source (some are based in contract and others in BIT) which determines whether BIT or
contractual clause prevails. BIT claims cannot be subject of exclusive jurisdiction clauses.

*ICSID Convention: may be amended only if all Contracting States ratify the amendment. It is thus not surprising that the
Convention has never been amended. Obtaining unanimous ratification for an amendment by the 140 Contracting States would at
best be a very long process. By contrast, amendment of the ICSID and Additional Facility Arbitration Rules requires only a decision
of the Administrative Council of ICSID. Adoption of any new ICSID rules similarly would be done by decision of the Administrative
Council.

*Appeal mechanism: Art. 53(1) ICSID Convention: awards rendered pursuant to the Convention “shall not be subject to any appeal
or to any other remedy except those provided for in this Convention.”
An appeal mechanism would promote coherence and consistency in the case law emerging under investment treaties, as there is
clearly room for inconsistencies to emerge given the increased number of cases, as well as the fact that many investment treaties
allow disputes to be submitted to different forms of arbitration, including ICSID and non-ICSID.
But 1) amendment of the Convention requires the unanimous ratification of the Contracting States, which is difficult to achieve; 2)
adding an appeals procedure to ICSID arbitral rulings may detract from the finality of the awards and provide chances for delays in
their execution.
In any instance, the Appeals Facility's availability would be contingent on the parties' consent.
- How would it work? An appeal tribunal would uphold, modify or reverse the award concerned; annul it wholly or partially on any of
the grounds outlined in Art. 52 ICSID Convention. If an appeal tribunal overturned an award or ruled on a modification or reversal
that resulted in an award that did not resolve the issue, any party might request that a new arbitral tribunal be formed and operate
under the same procedures as the original arbitral tribunal.

*Is the exhaustion of local remedies necessary? No. As the Tribunal put it in Lanco International Inc. v. Argentina: “A State may
require the exhaustion of domestic remedies as a prior condition for its consent to ICSID arbitration. This demand may be made (i)
in a bilateral investment treaty that offers submission to ICSID arbitration, (ii) in domestic legislation, or (iii) in a direct investment
agreement that contains an ICSID clause.”
In Ecuador v IBM, Ecuador objected to ICSID’s jurisdiction on account of demanding exhaustion of local remedies. The tribunal’s
decision was very similar to Generation Ukraine above: The provision of Art. 26 of the Convention authorized the Ecuadorian
Government to establish certain conditions for the applicability of an International Treaty; i.e., the Ecuadorian Government should
have included, as previous requirement, the condition of exhausting the administrative or judicial channels, at the moment it ratified
the BIT. And it has not. . . . The Tribunal reiterates, once more, that the consent of the Republic Ecuador to submit itself to arbitration
was already granted, by means of the ratification of the BIT and that in accordance with the provisions of Art. 25 of the Convention,
when both parties have granted their consent, the latter cannot be revoked unilaterally, nor conditioned it to the exhaustion of
administrative or judicial remedies.
Thus, to be effective, any local exhaustion clause must be contained in the investment treaty itself, rather than being a stand-alone
statement.

*Why do States comply with damages awards? Due to pressure or fear of retaliation from the investor's home State or other
international actors; to avoid penalties; or to please local political institutions, they adhere to an international rule-based system.
*Why ITLOS? The foundation of this new tribunal, in addition to the International Court of Justice (ICJ), which had previously been
the principal forum for law of the sea issues, was motivated by widespread discontent among developing countries with the ICJ
following several of its contentious judgements (e.g. South West Africa Case, Ethiopia & Liberia v South Africa). In other words,
ITLOS was born out of developing countries' rejection of the ICJ's authority. ITLOS was supposed to be less conservative than the
ICJ, more reflective of diverse legal systems and areas of the globe, and more accessible to non-State players than the ICJ. As a
result, ITLOS was a timely reaction to the globalisation-induced restructuring of international society. The reason for the creation of
ITLOS, as well as the fact that it is a permanent and specialized institution, lead to the conclusion that the Tribunal will become the
judicial authority in the field of law of the sea.

*Merits: States and shipping companies can benefit from using ITLOS as the body for resolving disputes under agreements in a
variety of ways. These advantages include time and cost savings. In comparison to arbitration, ITLOS provides a permanent
platform, which is especially useful in circumstances when prompt court action is required. In a situation involving provisional
measures or prompt release, for example, resorting to arbitration would be unpractical.

*Jurisdiction: ITLOS is a specialised organ with both contentious and advisory jurisdiction. In particular, it has jurisdiction over (a)
any dispute concerning the interpretation or application of the provisions of the Convention which is submitted to it in accordance
with Part XV; (b) disputes concerning the interpretation or application of an international agreement related to the purposes of the
Convention, which is submitted to it in accordance with the agreement; and (c) any dispute concerning the interpretation or
application of a treaty already in force concerning the subject-matter covered by the Convention if all the parties to such a treaty so
agree.
It has also handled cases relating to prompt release of vessels and crews (Art. 292), coastal state jurisdiction in maritime zones,
freedom of navigation, hot pursuit, the marine environment, flags of convenience and the conservation of fish stocks, etc. Its
jurisdiction also applies to disputes relating to Part XI of the Convention (exploration and exploitation of deep seabed resources),
which are to be submitted to the Seabed Disputes Chamber (Art. 187 and 188), and disputes brought under the Convention's Art.
290, para 5 (prescription of provisional measures pending the constitution of an arbitral tribunal). If there is a need to safeguard the
parties' respective rights or to prevent substantial harm to the maritime environment, the Tribunal may impose provisional measures.
The (compulsory) jurisdiction of the Tribunal is, however, limited by two provisions: Art. 297 and 298, but disputes which are
subject to the limitations covered by Art. 297 or by declarations made under Art. 298 may still be submitted to the Tribunal if the
parties to the dispute so agree ( Art. 299, paragraph 1). This restriction reflects the fact that fishing and maritime scientific research
in the EEZ are sensitive concerns for the coastal state, and the state has considerable control over these matters. A disagreement
over the exercise of the coastal State's discretionary rights over maritime scientific research in the EEZ, on the other hand, must be
brought to compulsory conciliation under Annex V, section 2 at the request of either party. A dispute pertaining to fisheries excluded
from the obligatory settlement processes shall be presented to conciliation under Annex V, section 2, at the request of any party to
the dispute (Art. 297.2b), if no solution has been obtained through recourse to section 1 of Part XV, namely non-compulsory
procedures.
The restrictions on compulsory dispute resolution methods pose at least two difficulties. The first concern is the classification of a
dispute. Consider a dispute over a claim to an EEZ surrounding a contested island or rock, as well as the exercise of a coastal
State's sovereignty over living resources inside this EEZ. If this issue involves the exercise of sovereign rights with regard to living
resources in the EEZ, it will be excused from the mandatory procedures, by virtue of Art. 297. It is not excluded from obligatory
procedures under the Convention if the issue concerns rights to an EEZ under Part V and Art. 121(3). As a result, the extent of
compulsory procedures may vary depending on the nature of the dispute. In this respect, it should be highlighted that whether a
specific dispute falls within the scope of Art. 297 is a matter for the court or tribunal whose jurisdiction is in question, not for the
contesting State to decide unilaterally.
The second point to consider is the distinction between conflicts that are subject to the compulsory procedures and those that are
not. For example, disputes over high seas fisheries are covered under the LOSC's mandatory processes for dispute resolution.
However, as the Fishery Jurisdiction case between Spain and Canada revealed, a fisheries conflict might arise over fish stocks that
cross the EEZ and the high seas. While high seas fisheries are subject to mandatory dispute resolution procedures, the
management of I sh stocks in the EEZ does not appear to be subject to these procedures. Separating the issue of high seas
fisheries from the management of fish stocks in the neighboring EEZ, on the other hand, makes little sense.

**How does ITLOS exercise public authority?

1) Contentious cases (The Tribunal has jurisdiction over certain cases regardless of the respondent State's declaration or
expression of consent);
2) Advisory Jurisdiction: Under Art. 191 UNCLOS (3 conditions), the advisory function is only bestowed on the Seabed Disputes
Chamber (SDC), not on ITLOS as a whole. This has sparked the long-debated topic of whether ITLOS has the authority to provide
advisory opinions as a complete tribunal. In 2015, the ITLOS issued an Advisory Opinion on IUU Fishing, which addressed this
question in the affirmative. ITLOS established its advisory jurisdiction on the basis of a combined reading of UNCLOS Art. 288(1),
ITLOS Statute Art. 21 and ITLOS Rules of Procedure Art. 138 (Tribunal “may give an advisory opinion on a legal question if an
international agreement related to the purposes of the Convention specifically provides for the submission to the Tribunal of a
request for such an opinion”).
The request for an advisory opinion from the ITLOS full Court is subject to strict conditions set out in Art. 138 of the Rules. First,
there must be a "international agreement." It is conceivable to claim that such an agreement constitutes a treaty under the Vienna
Convention on the Law of Treaties, Art. 1(1)(a). Second, any such international agreement must be relevant to the LOSC's
objectives. Third, there must be a "legal question" in the request for an advisory opinion. In theory, an advisory opinion could not be
issued on a topic that is not legal but rather political. Given that a political topic may have certain legal features, the boundary
between a legal and a political matter appears to be blurred in reality. Fourth, as previously stated, the Seabed Disputes Chamber is
responsible for resolving disputes over operations in the Area. As a result, it is reasonable to assume that a legal inquiry must be
unconnected to such activities, even though this criterion is not mentioned explicitly. Finally, an international agreement must
expressly allow a request for such an opinion to be submitted to ITLOS.
3) Prompt Release: Coastal States have the right to arrest a vessel alleged to have violated their laws and regulations on the
exploitation and conservation of living resources under Art. 73(1) UNCLOS. However, after the flag State of the detained vessel has
posted a reasonable bond or other security, the coastal State has the obligation to release the vessel and the crew under Art. 73(2).
Should the coastal State fail to do so, the flag State may initiate a prompt release proceedings pursuant to Art. 292 UNCLOS.
4) Provisional Measures: (Art. 290 LOSC). Under Art. 89(5) of the Rules of the Tribunal, ITLOS has power to prescribe provisional
measures that differ from those requested by the parties.
There is no guarantee that ITLOS’ provisional measures will be accepted by States.
Case law: In 4 out of 6 provisional measure orders issued, ITLOS’ provisional measure played a significant role in resolving the
disputes, as the respective arbitral tribunals that were established did not, for various reasons, render an award in the merits phase
in the end. The ONLY provisional measure which was rejected by one of the parties is the Arctic Sunrise case. What is noteworthy,
however, is that despite the rhetoric of rejecting ITLOS’ authority, Russia eventually implemented the measures prescribed by
ITLOS. Even though the authorities released the vessel and the crew pursuant to domestic legislation and no mention was made to
ITLOS’ order, the ultimate effect was the same.

*Ad Hoc Judges: if the Tribunal or a chamber does not include a judge of the nationality of a party to the dispute, that party may
choose a person to sit as a judge. Should there be several parties in the same interest, they are considered for this purpose as one
party only. Judges ad hoc need to fulfil the conditions of members, as set out in Art. 2, 8 and 11 Statute. They participate in the
case for which they are chosen on terms of complete equality with the other judges and take precedence after the members of the
Tribunal and in order of seniority of age.

*Judgment: All questions must be decided by a majority of the members of ITLOS. In the case of a tie vote, the President or the
ITLOS member acting in his place will have a casting vote. Any member, like the ICJ, will be able to deliver a separate opinion.
Unlike the ICJ, there is no mechanism in place to ensure enforcement of ITLOS rulings // guarantee that an ITLOS ruling is carried
out.

*Critiques: 1) Few States have selected ITLOS as the judicial venue of choice for law of the sea disputes, and few actively support
its activities. The fact that the ITLOS docket only includes 24 cases and two advisory opinion requests after more than two decades
has sparked concerns that ITLOS is under-utilised. In reality, ITLOS is continuously competing for cases with the ICJ and ad hoc
arbitral tribunals. Many States still submit their cases to the latter two, despite the fact that the former is the specialised court for the
law of the sea. This might be explained in part by the fact that under UNCLOS, Annex VII arbitration, not ITLOS, is the default
venue. However, as the new standing court for the law of the sea, the Tribunal's lack of action may reflect a lack of confidence in the
Tribunal's competence among the States parties, casting doubt on the Tribunal's authority in resolving disputes and advancing the
law of the sea in general.
ITLOS' competence is confined to provisional measures cases, and prompt release proceedings, for that matter, making it more of a
first-instance court than a specialized body for law of the sea conflicts. To some extent, such criticisms are correct. However, this
does not preclude ITLOS from exercising jurisdiction in these sorts of cases. ITLOS has demonstrated that it can have a
considerable influence on the conduct of the parties in interim measures procedures, and thereby exerts its public power over these
States.
2) Lack of compliance with orders.

*Optional exceptions to compulsory procedures -> Art. 298(1)a-c, Art. 298(4).

*Preconditions: Section 1 of Part XV LOSC lays forth a number of requirements that must be met in order for the compulsory
dispute resolution procedures to begin. Art. 281, 282, and 283 are significant in this respect.
1) Art. 283 imposes an obligation to exchange views. Art. 283 imposes an obligation to communicate ideas. Parties to a dispute can
choose the most appropriate way for resolving the conflict on their own. They are not compelled to use international courts and
tribunals for any reason. Art. 283 requires disputing parties to engage in a prompt exchange of ideas as a prelude to any further
action.
In the MOX Plant case (provisional measures) between the Republic of Ireland and the United Kingdom in 2001, this requirement
was at question. The United Kingdom argued in this case that the correspondence between Ireland and the United Kingdom did not
amount to an exchange of views. The UK further claimed that Ireland refused to accept its request for an exchange of views under
Art. 283 of the Convention. However, ITLOS held that: ‘[A] State Party is not obliged to continue with an exchange of views when it
concludes that the possibilities of reaching agreement have been exhausted’ (para 60).
2) Art. 281(1) holds [...], Art. 281(2) further provides that if the Parties have agreed on a time limit, para 1 applies only upon the
expiration of that time limit.
In the 1999 Southern Bluefin Tuna dispute between New Zealand, Australia, and Japan, the legal impact of Art. 281 was put to the
test. Japan claimed that Australia and New Zealand had not exhausted the procedures for peaceful dispute settlement under Part
XV, section 1 LOSC, in particular Art. 281, when it came to the first condition of Art. 281(1). 12 Despite this, ITLOS determined that
"[a] State Party is not obligated to pursue proceedings under Part XV, section 1 of the Convention when it considers that all other
options have been exhausted."
Criticism: Criticism: A regional agreement that simply does not include any mandatory dispute resolution processes might exclude
use of Part XV LOSC's compulsory procedures. As a result, there is fear that the permissive implementation of Art. 281 might
substantially weaken the effectiveness of the compulsory procedures.
3) Art. 282 may also potentially limit LOSC's compulsory procedures. In the MOX Plant case from 2003, the Annex VII Arbitral
Tribunal put Art. 282 to the test once more. The central issue was the ECJ's exclusive jurisdiction under EC law. According to the
Tribunal, if the ECJ had exclusive authority over the interpretation LOSC, it would completely prohibit the Tribunal's jurisdiction
under Art. 282 of the Convention. As a result, the answer to this question was crucial in determining the Tribunal's jurisdiction. The
Arbitral Tribunal believes that the matter should be determined by the European Community's institutions, primarily the European
Court of Justice.

*ICJ's Optional Clause & Art. 282 (interrelationship): 'A procedure that comprises a binding decision,' as defined in Art. 282
LOSC, is an optional provision under Art. 36(2) of the ICJ Statute. By virtue of Art. 282, it would appear that between two States
that have adopted the optional clause, the ICJ's authority triumphs over processes under Part XV LOSC.

*Conciliation: Conciliation is a diplomatic method of resolving disputes that is carried out by a commission made up of independent
and impartial conciliators. There are two forms of conciliation in the LOSC: voluntary conciliation (Art. 284) and mandatory
conciliation (Art. 285). Art. 3 of Annex V: the conciliation commission shall consist of five members. Two conciliators are appointed
by each party and a fifth conciliator, who shall be chairperson, is appointed by the parties to the dispute. In case of disagreement
between the parties, the UN Secretary-General shall make the necessary appointment.
*Multiple Forums: 1) Even in compulsory procedures, communication between disputing States will be required to establish a
relevant forum if a State has chosen more than one forum. Mexico, for example, has selected ITLOS, the ICJ, and a special arbitral
tribunal on its own will. Portugal has picked all four forums in whichever order they see fit. If a disagreement arose between the two
countries, it would be essential to exchange views in order to choose a suitable venue under Art. 283(2) LOSC.
2) Art. 288(4) provides that in the case of a disagreement over whether a court or tribunal has jurisdiction, the subject shall be
decided by that court or tribunal. In this regard, Art. 294(1) states that a court or tribunal established under Art. 287 to which an
application in respect of a dispute referred to in Art. 297 is made shall determine, at the request of a party, or may determine
proprio motu, whether the claim constitutes an abuse of legal process or is prima facie well founded. If the court or tribunal judges
that the claim is an abuse of the legal system or is prima facie unjustified, the case will be dismissed.
3) Even if no declaration is made under Art. 287, ITLOS has compulsory jurisdiction over a request for the prompt release of
vessels and crews ( Art. 292) and a request for provisional measures ( Art. 290(5)), unless the parties otherwise agree.

*Incidental proceedings: Preliminary Objections: Art. 97 of the ITLOS Rules clarifies the procedure for preliminary objections.
Any challenge to ITLOS' jurisdiction or the admissibility of the application, or any other objection for which a determination is sought
before any further proceedings on the merits, must be made in writing within ninety days after the commencement of proceedings,
according to Art. 97(1). The preliminary objection must include the facts and legislation that support the objection, as well as the
submissions indicated by Art. 97(2).

*Provisional Measures: ITLOS and its Seabed Disputes Chamber are entitled to prescribe provisional measures in compliance
with Art. 290, according to Art. 25(1) of the ITLOS Statute. If ITLOS is not in session or a sufficient number of members are not
present to create a quorum, the Chamber of Summary Procedure shall impose provisional measures, as specified in Art. 25(2)
Statute. ITLOS may review or revise such provisional measures if a party requests so in writing within fifteen days after the
measures' prescription. ITLOS may also decide to review or change the measures on its own initiative at any time. While the ITLOS
Statute makes no express provision for provisional measures, special chambers dealing with a specific type of dispute or a specific
dispute may do so since they are an organ of ITLOS.
- Prima Facie jurisdiction: Art. 290(1) makes it apparent that the court or tribunal hearing a request for provisional measures must
have jurisdiction under Part XV or Part XI, Section 5 LOSC, at least prima facie. This is a crucial criterion for prescribing interim
measures.
- Urgency: necessary condition for the prescription of provisional measures. Art. 290(5) emphasises this requirement, stating that
"the urgency of the situation so demands." A request for the prescription of provisional measures must additionally state "the
urgency of the situation," according to Art. 89(4) of the ITLOS Rules. Though, it's worth noting that in some cases, ITLOS has
ordered provisional measures even where there was no situation of urgency (e.g. MOX Plant Case, Land Reclamation case, etc).

*Prompt Release (Art. 292): Regardless of whether they have accepted ITLOS' jurisdiction under Art. 287 of the Convention, all
States Parties to the LOSC are bound by its jurisdiction under Art. 292 of the Convention.
Para 2: The wording "on behalf of the flag State" seems to imply that applications might be filed not just by a government official,
such as a consular or diplomatic representative, but also by a private individual who is not a member of the flag State's government
if the flag State authorizes them to do so. In either situation, the detained vessel must be flying the applicant's flag, making the
legality of a vessel's registration very important.
- Substantive requirements:
1) procedure applies only to alleged violations of the provisions of the Convention on the prompt release of a vessel or its crew upon
the posting of a reasonable bond or other financial security (LOSC, Art. 292(1));
2) a vessel flying the flag of a State Party to the Convention and/or its crew must have been detained by the authorities of another
State Party.
- Procedural requirements:
1) Within ten days after the detention, the parties have failed to agree on taking the case to a court or tribunal. Unless the Parties
have agreed otherwise, the issue of release may be submitted before any court or tribunal approved by the detaining State under
Art. 287, or such a question may be presented directly before ITLOS.
2) The flag State has not chosen to submit the application for prompt release to a "court or tribunal recognized by the detaining
State under Art. 287." Because of the urgency of the prompt release procedure, it is improbable that a flag State will bring a dispute
involving prompt release before an arbitral tribunal, since doing so would risk prolonging the proceedings due to the necessity to
pick arbitrators. As a result, it is implausible, if not impossible, that such a dispute will be brought before the ICJ unless the Court
adopts rules governing prompt-release proceedings.
3) Freedom of choice: if the states reach an agreement, the time limit for negotiations can be extended by agreement rather than
using the prompt release mechanism.

*Intervention: There are two types of third-party involvement available under the ITLOS Statute. First, requests for intervention are
dealt with under Art. 31 Statute. A State Party to the LOSC with a legal interest that may be impacted by the decision in any dispute
may file a request to ITLOS to be allowed to intervene, according to Art. 31(1). If a request to intervene is granted, ITLOS' judgment
in the dispute is binding on the intervening State Party insofar as it pertains to the matters in which that State Party intervened.
Second, Art. 32 offers the opportunity to intervene in cases where the LOSC or other international agreements are being
interpreted or applied incorrectly. Wherever the interpretation and application LOSC is in doubt, the Registrar immediately notifies all
States Parties under Art. 32(1).

ECJ History: The Court was founded for the first time in 1951 by the Treaty of Paris for the European Coal and Steel Community, to
resolve issues that arose inside and among the Community's members. It was founded with seven judges, which was thought to be
a perfect amount for representation and an equitable number in the event of a tie. The European Court of Justice was conferred
with the ability and jurisdiction to arbitrate and decide on disputes involving all three international communities six years later, in
1957, when the Treaties of Rome created the EEC and EURATOM.

*Legal Basis: Art. 13 TEU, 19 TEU (para 3), 251-281 TFEU (251-253 - ECJ, 254-256 - General Court, 257 - specialised courts
which may be attached to the General Court).

*Structure: Court of Justice & General Court. The Registrar is appointed by the Court. The Registrar serves as the institution's
secretary general and oversees the administration of the institution's departments under the direction of the President of the Court.

*Composition: 27 judges, one from each MS, 8 Advocates-General. All are appointed by agreement of the Member States for a
six-year renewable term; like the General Court, the Court of Justice's membership is partially renewed every three years. (+ Art.
252 and 253).
For a three-year term, judges in both the Court of Justice and the General Court elect a President to their respective Courts. The
President oversees the Court's operations, schedules sittings, and preside over hearings and deliberations. Each of the Chambers
in which the Court sits elects a President. There are eight Chambers, each of which is comprised of three to five judges. Three-
judge Chamber presidents are chosen for a one-year term, whereas five-judge Chamber presidents are elected for a three-year
tenure. The Court of Justice may sit in a Grand Chamber of 13 judges (including the President of the Court and the Presidents of
the five-judge chambers) to deal with cases previously handled by the full Court in plenary session (used only in exceptional cases,
such as where it must compulsorily retire the European Ombudsman or a Member of the European Commission who has failed to
fulfill his/her duties).
The Court establishes its Rules of Procedure, which must be approved by a qualified majority of the Council (Art. 253). The Court
can sit as a full Court with 27 judges, in a Grand Chamber with 15 judges, or in three or five judge chambers. The organisation is
funded by the EU Budget, which has a separate section for it.
The Statute of the Court of Justice is laid down in a Protocol attached to the TFEU, as required by Art. 281 of the Treaty.
In 2010, an advisory panel was established in accordance with Art. 255 TFEU, which must be consulted before the MemberState
governments may proceed to the nomination phase. The new scrutiny mechanism provides for a more impartial and unbiased
evaluation of whether candidates truly match the established requirements.

*Advocate-General: assists the ECJ. They do not directly participate in the Court's deliberations, but they are subject to the same
recruitment and appointment procedures as judges, are held to the same standards of impartiality and independence, are paid the
same salary, and, according to the ECJ, ‘have the same status as the Judges, particularly so far as concerns immunity and the
grounds on which they may be deprived of their office’.
An AG's submission - or opinion - is given in court at the conclusion of the oral proceedings. It summarizes the pertinent legal issues
and offers a course of action for the case's resolution. Although an Advocate-opinion General's is not binding on the Court, it is
generally a reliable predictor of the eventual decision.

*General Court (Art. 254 TFEU, previously Court of First Instance or CFI): has 54 judges (2 per MS), does not have any permanent
AG but judges may be nominated to perform his tasks (this has been done on some occasions). GC hears on direct actions against
EU institutions initiated by natural or legal persons, NOT cases submitted by institutions or member states. Initially, the CFI's
jurisdiction was confined to issues regarding competition, staff from Community institutions, and levies, production quotas, prices,
restrictive agreements, or concentrations brought against the European Commission under the ECSC Treaty. The European Union
Treaty and the Treaty of Nice, on the other hand, expanded the its authority.

*Civil Service Tribunal (dissolved in 2016): The European Union Civil Service Tribunal was formed as a Judicial Panel affiliated to
the CFI in 2004 by Decision 2004/752/EC of the Council of Europe. The Tribunal was established in 2005 to ease burden on the
CFI, and it immediately took up 117 staff matters that were pending before the Court. The Tribunal is made up of seven judges who
are usually divided into three chambers. The Tribunal can also convene in a chamber of five judges or as a single judge, depending
on the circumstances. Cases that are particularly difficult or significant may be submitted to the entire court. The Tribunal Judges
pick a President for a three-year term that can be renewed. The Civil Service Tribunal is now a'specialized court' under Art. 257 of
the TFEU, after the entrance into effect of the Treaty of Lisbon. The European Parliament and the Council can create specialized
courts that are connected to the General Court.
The Tribunal has competence to consider disputes between the EU and its staff under Art. 270 of the TFEU. Workplace disputes
(e.g., wage, promotion, recruitment, disciplinary measures) and social security concerns are common (e.g. sickness, old age,
invalidity, accidents at work, family allowances). It has jurisdiction over disputes involving all bodies or agencies and their
employees for which the Court of Justice of the European Union has jurisdiction (for example, disputes involving Europol, the Office
for Harmonisation in the Internal Market (OHIM), or the European Investment Bank and their employees).

*Role: The rule of law is at the heart of the European Union. Its distinguishing feature, which sets it apart from other IOs, is that it
produces legislation that all members must follow. The Community, in the words of the ECJ's decision in Van Gend en Loos,
"constitutes a new legal order of IL for the benefit of which the [Member] States have limited their sovereign rights..." The Court's
mission, according to Art. 19 of the Treaty on European Union, is to guarantee that the law is followed in the interpretation and
execution of the Treaties.
The Court has frequently taken a more liberal and far broader interpretation of EU legislation than a literal reading would warrant in
defining and expounding EU legal rights. Many of its rulings have had significant ramifications for individual EU citizens and legal
entities.

*Proceedings (4 common types):

1) Requests for Preliminary Ruling: ensuring that Community legislation is interpreted consistently throughout all Member States. A
'preliminary ruling reference' is made by a national court or tribunal that needs a decision on a point of Community law before it can
make its own conclusion. The ruling of the European Court of Justice is then applied to the national case. The ECJ is responsible for
ensuring uniform application of EU law throughout the EU, and under the Treaty of Nice, it retains in principle competence to
investigate questions referred for a preliminary ruling; however, the Statute may entrust preliminary rulings in certain specific
matters to the General Court under Art. 256 of the TFEU.
2) Failure to fulfil an obligation: If the Commission has cause to think that a Member State is failing to meet its responsibilities under
EU law, it can initiate these proceedings. Another Member State may also commence these actions. In any scenario, the Court
looks into the claims and renders a decision. If the accused Member State is found to be at fault, it must immediately correct the
situation;
3) Proceedings for Annulment: c) Annulment proceedings: If any of the Member States, the Council, the Commission, or (under
certain conditions) Parliament feels that a certain EU law is invalid, they may ask the Court to have it annulled. These 'proceedings
for annulment' can also be utilized by individual citizens who want the Court to repeal a law that has a direct and negative impact on
them. If the Court determines that the law in question was not properly adopted or is not properly founded on treaties, the law may
be declared null and invalid.
4) Proceedings for failure to act: d) Legal action for failing to act. The European Parliament, the Council, and the Commission are all
required under the Treaty to make certain decisions in specific circumstances. If they do not, Member States, other EU institutions,
and (under certain situations) individuals or companies can file a complaint with the Court to have the breach officially documented.
NB: The Court of Justice can only decide matters of EU law - it is not a court of appeal against decisions of national courts.

*Does authority mean legitimacy for ECJ? While some see authority and hence conformity with EU legislation as indicators of
legitimacy, others draw a clear line between the two, arguing that actors can be authoritative while nevertheless being illegitimate.
However, it is only after looking at its work in specific areas that one can see its true impact. The European Court of Justice has
played a major role in making the EU's constitution more supranational by establishing rules such as the principle of direct effect of
EU law, which means that it applies to all citizens without having to go through national governments first, and the supremacy of
Community law over national law. Starting with Van Gend en Loos 26/62 (1963) ECR 1 and Costa v. ENEL 6/64 (1964) ECR 585, a
succession of ECJ decisions explained the concepts of "direct effect" and "supremacy" under Community law. According to the
principle of "direct effect," some EU law laws grant rights or impose responsibilities on persons that must be recognized and
enforced by national courts. The ECJ established the principle in case law when it ruled “any unconditionally worded treaty
provision, being ‘self sufficient and legally complete’, did not require further intervention at the national or Community levels and
therefore applied directly to individuals”. In the well known Van Gend & Loos case, the Court had stressed “the Community
constitutes a new legal order of IL for the benefit of which the states have limited their sovereign rights…” Individuals have rights
under Community law, according to the ECJ, and "these rights arise not only where they are expressly granted by the Treaty, but
also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals, Member states, and Community
Institutions." As a result, treaty provisions can have direct effect and create rights for persons that must be enforced by national
courts.

*Is ECJ a constitutional court? If we define a constitution as "a norm or a body of norms that are of the highest rank in a legal
system in the sense that the legitimacy of all other norms is assessed on them," the ECJ is unmistakably a constitutional court.
Furthermore, When a national court raises a dispute about the legitimacy of EU actions, that court may (or must, if it is a court of
last instance) obtain a preliminary decision from the Court of Justice ( Art. 267(1)(b) TFEU). The Court of Justice is without a doubt
the highest court in the EU legal order when it comes to annulment actions and preliminary rulings on the legality of European law. It
serves as a constitutional court when it performs this task. It moreover has exclusive jurisdiction since no other court (with the
exception of the General Court, which is subject to review by the Court of Justice) has the authority to overturn EU law.

*What is ECJ's most important task? ECJ's jurisdiction is diverse. When it reviews the legality of EU acts, it resembles an
administrative tribunal; when it declares that a Member State has failed to comply with the Treaty,5 it resembles an international
tribunal; and when it ensures the precise observance and uniform application of European law throughout the EU, it resembles a
highest court of appeal (a cour de cassation). The Court of Justice's ability to provide a preliminary ruling on the interpretation of
European law when a national court requests it is without a doubt the most essential aspect of its authority. The bulk of the Court's
notable decisions have been issued under this category of jurisdiction.

*Role of EP: A Court ruling in 1990 on a case brought by Parliament as part of the legislative procedure on the adoption of health
measures to be taken in the aftermath of the Chernobyl nuclear disaster granted Parliament the right to bring actions before the
Court to have decisions declared void in order to protect its legislative prerogatives.
According to Art. 257 TFEU, Parliament and the Council, acting in line with the usual legislative procedure, may create specialized
courts attached to the General Court to hear and decide particular kinds of action or proceeding lodged in certain areas in the first
instance. Parliament and the Council must act through regulations, either on the Commission's proposal after consultation with the
Court of Justice, or at the Court of Justice's request after consultation with the Commission.
The Statute of the Court of Justice of the European Union is revised by Parliament and the Council, who act in line with the usual
legislative procedure, according to Art. 281 TFEU (in the form of a Regulation of the European Parliament and of the Council). The
Court's own recent proposal to amend its Statute on March 26, 2018 is an example of this participation on the part of the European
Parliament: it concerns the possibility of certain changes to the division of jurisdiction between the Court of Justice and the General
Court with regard to preliminary rulings.
Parliament is one of the institutions mentioned in Art. 263 TFEU that may bring an action (as a party) before the Court.
With the implementation of the Lisbon Treaty, applicants for the position of Judge and Advocate General must now be evaluated by
a panel of seven people, one of whom must be suggested by Parliament ( Art. 255 TFEU).

*Judicial Activism: JA is an important element of ECJ's structure. The ECJ's structure includes judicial activism. The ECJ's duty,
according to Art. 19 of the Treaty of the European Union, is to oversee the "interpretation and application" of EU legislation: the
ECJ's responsibility is to interpret EU law, while member state courts' role is to implement it. The preliminary ruling procedure,
defined in Art. 267 of the Treaty on the Functioning of the European Union, is one tool for enforcing this practice. Preliminary ruling
procedure allows judges in national courts to submit matters to ECJ for a point of interpretation on EU law, usually to clarify an
uncertainty in the meaning, scope, or implications of a treaty provision or secondary legislation provision. The preliminary ruling
approach logically necessitates judicially active practice: it forces judges to interpret and implement a law; in many circumstances,
this culminates in national laws being overturned in favour of EU law supremacy. Example: the Dassonville case, in which a Belgian
law (Royal Decree No 57 of 1934) was deemed invalid because it violated Art. 34 of the TFEU on the Free Movement of Goods;
this is an excellent example of authoritarian activism that invalidates member state legislation. The Dassonville judgment did more
than simply overturning member state legislation, the Court almost actively engaged in policy-making by establishing a new general
legal principle through its interpretation of the treat Art..
Art. 34 of the Treaty on the Functioning of the European Union prohibits all "quantitative restrictions" on the free movement of
goods, as well as measures having "equivalent effect". However, the difficulty with this category was that it was not well defined,
leaving room for interpretation. To address this issue, the judges devised a definition: measures of equivalent effect are "trading
rules" that "are capable of hindering intra-community trade, directly or indirectly, actually or potentially."
Dassonville is a case that shows how the ECJ can act judicially actively in two ways through the preliminary ruling process: first, by
overturning member state legislation in favor of EU law; and second, by forming general legal principles that, while not in form,
constitute new legislation in effect.
The case demonstrates the ECJ's politicized role within the EU; despite its limited role as an interpretive court, the ECJ plays an
active political role within the union, primarily through the judicially active preliminary ruling procedure, which significantly expands
the ECJ's sphere of influence within both member states and the EU as a whole (<- change).
CA: An ineffective judicial review procedure is not a sufficient critique of the ECJ's judicially active conduct: it is exactly via such
activities of the Court that such institutional flaws may be addressed. As has been demonstrated, the ECJ's preliminary ruling
procedure and other kinds of judicial activism have sparked considerable institutional change in the EU; judicial activism is a
byproduct of integration.

*Critiques: 1) Lack of democratic accountability;

2) Bias. CA: Studies indicating that ECJ routinely decides against the most powerful EU MS (e.g. Germany), and that the Court's
judgements most closely match the supranational Commission's preferences have generally refuted the claim of bias towards big
nations. When it comes to accusations of prejudice by individual judges in favour of their particular member states, the judges'
engagement in private deliberations and concealment of all concurring and dissenting opinions make it difficult to determine the
level of national favouritism among judges.
Integrationist bias: It's been argued that the Court has a strong bias in favour of European integration, interpreting the treaties in a
manner that exceeds the intentions of MS when they drafted the original Treaties, and diminishing national sovereignty in the
process. The Court's legitimacy, in this and many other views, is attacked because of its pro-integration bias and inability to defend
the integrity of sovereign national legal regimes.
3) A common criticism of the European Court of Justice (ECJ) is that it engages in ‘activist’ rulings aimed at increasing its own power
as an institution. It's also criticised for making major political decisions concerning the direction and pace of European integration,
getting engaged in matters that should have been left to the MS as the 'masters of treaties'.
4) Poor legal reasoning. ECJ's decisions are laconic and ambiguous, in part because of ECJ's persistent prohibition on separate
concurring or dissenting opinions, as well as its collegial style of deliberation. This struggle for consensus has produced decisions
that reflect the judges' common views as much as possible, while trying to conceal any signs of dissent. This in return results in
poorly reasoned judgements and a deteriorated interaction with national courts, with even judges admitting that the Court's legal
reasoning in certain cases left a lot of room for improvement. Judges fail to properly explain their reasons or engage completely with
the concerns raised by national courts and the legal arguments of the parties, which undermines the Court's and its judgements'
legitimacy.
5) Lack of transparency // Opacity (sm. #7). In a 2008 decision, the CJEU echoed these claims, arguing that "a lack of information
and debate is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also
as regards the legitimacy of the decision-making process as a whole." Indeed, Art. 15 TFEU has established openness as a
judicially enforceable concept of EU public administration, reflecting and codifying the Court's long-standing jurisprudence on
openness, transparency, and access to documents in the administration of the European Union. The ECJ generally operates as a
public court, with a publicly accessible docket, hearings, and judgments; however, in the interests of judicial independence and
"serenity of judicial proceedings," the Court has restricted access to those proceedings in ways that have drawn significant
normative criticism. The case file is accessible only to the parties to the proceedings and interveners," and third parties, including
the general public, do not have a right of access to written submissions in current cases. Court argues that, “to allow a general
presumption that disclosure of the pleadings lodged by one of theinstitutions in court proceedings would undermine the
protection of those proceedings... while those proceedings remain pending.”
In terms of access to written submissions (a presumption of closure), oral hearings (public but not broadcast), and, most all,
deliberation and output, the CJEU is arguably less open and transparent than other international courts (all signs of voting and all
concurring and dissenting opinions suppressed). Defenders of the Court's practices can and do argue that the lack of transparency
is justified by other normative criteria like judicial independence, litigant confidentiality, and the tranquility of judicial proceedings, but
the end result is a court whose workings and reasoning are at least partially opaque to legal experts and the general public.
6) The ECJ has no choice in deciding whether or not to review a case, and must rule on all matters filed with its registry. As a result,
the Court's power to choose its workload on its own is severely constrained.
7) Confidentiality. The fact that rulings are made collegiately and judges' deliberations are kept private is the best safeguard of the
Court's independence. There are no indications of the votes taken in the judgments, and there is no dissenting opinion. The
governments would be able to monitor and control their nominees if the judges' votes and views were made public.
8) Little is known about how MS choose their members for ECJ. We know that the judges of the Court of Justice are mostly
professors of community, comparative, or IL, and that the majority of them have prior judicial experience in their Member State of
origin, frequently as judges of supreme courts or constitutional courts. We also know that, whereas the first Court of Justice featured
members with no prior judicial experience (e.g., a trade unionist and an economist) as well as low-profile and soon-to-retire jurists,
today's members of the Court have a high level of technical competence, with a strong intellectual component.

*Sociological legitimacy: behavior of national judges (do they submit preliminary references to the Court, and/or loyally
implement the Court’s rulings?) and national governments (do they comply with ECJ decisions, or do they try to overturn those
rulings or curb the Court as a whole?)