This chapter discusses possible avenues to access to justice outside the EU judicial system. More specifically, it assesses the possibility of using arbitration as a means to seek redress in situations where the EU has acted in violation of fundamental rights. Although this dispute settlement method exists outside the system of remedies within the EU, it has been an accepted form of dispute resolution in several instances by the Court of Justice of the European Union and EU institutions. The European Commission, for instance, relies on arbitration within EU competition law. Therefore, this chapter investigates into how much legal room exists for arbitration within the EU legal system and what drawbacks this could bring for the EU judicial system.

The ICJ is the primary court for legal disputes among governments. It hears cases in which one country claims that another country has violated its obligations under international law. This chapter introduces the ICJ by examining its legal foundation in the Statute of the ICJ, and shows its powers and limits in practice by looking at the cases of Belgium v. Congo (on genocide) and Australia v. Japan (on rights and obligations for whale hunting under the International Convention for the Regulation of Whaling).

It is said that ‘not many fields of law use comparative law as extensively as international arbitration’ (Vadi, 2010). Indeed, comparative approaches to international arbitration law have assumed greater importance in the study of both commercial and investment arbitration. This chapter explores the applications of comparative law methods in the developments of international arbitration law, reviews their key contributions, and suggests potential directions for future study. These methods, whether traditional, historical, linguistic, socio-legal, empirical, or economic have all been employed to varying degrees and varying effects in the study of international arbitration law. Drawing from key publications in the field, this chapter will explore the research focus, themes of enquiry, organisational structures, and analytical techniques of each method in turn as applied to comparative arbitration studies.

The author assesses the role of consent in processes of binding dispute resolution before international courts and tribunals. He seeks to demonstrate that ‘consent’ has a particular role in binding dispute resolution. This particular role derives from the special nature of binding dispute resolution processes. They are intrusive and characterized by their uncertain outcome: the implications of State consent to the dispute resolution process crucially depend on decisions of an independent entity, namely an international court or tribunal. Because this is so, States insist on the need for consent, as a precondition of any binding dispute resolution process. At the same time, once consent has been given, control shifts to the competent international court or tribunal. Moreover, by virtue of their decision-making authority, many international courts and tribunals have managed to assert at least a persuasive influence over proper construction of the legal rules at stake, extending beyond the cases immediately pending before them. The chapter traces these peculiarities and examines how the tension between State and courts’ authority plays out in particular disputes.

All states have an obligation to settle disputes peacefully in accordance with arts 2(3) and 33 of the Charter of the United Nations (‘UN Charter’), and the purpose of this chapter is to provide an introduction to the methods for the settlement of international disputes. It begins with an overview of international dispute settlement, including a discussion of the concept of a ‘dispute’, and the distinction between political and legal disputes. It then traces the evolution of the obligation to settle disputes peacefully through its broad phases: the 1899 and 1907 Hague Conventions for the peaceful settlement of international disputes, and the creation of the Permanent Court of Arbitration; the Covenant of the League of Nations of 1919, and the creation of the Permanent Court of International Justice (‘PCIJ’); and the Kellogg–Briand Pact of 1928, and the UN Charter of 1945. The chapter then considers the various methods of international dispute settlement, beginning with the diplomatic methods (negotiation, fact-finding and inquiry, the use of ‘good offices’, mediation, and conciliation) before turning to the adjudicatory forms of dispute settlement.

This chapter focusses on a narrow topic: the law applicable to post-award issues. It deals in turn with the law applicable to recognition and enforcement proceedings, to annulment proceedings, and to post-award issues in investment arbitration. Enforcement of arbitral awards typically takes place within the framework of the 1958 New York Convention, but this chapter will also refer to relevant provisions of the UNCITRAL Model Law on Commercial Arbitration, the 1961 Geneva Convention and the ICSID Convention. Issues covered include the law applicable to the following issues: the validity of the arbitration agreement, arbitrability, arbitral procedure, competence of the tribunal, scope of the dispute, public policy, finality of the award and annulment. Particular attention will be given to the extent to which potentially diverse answers arising from the designation of national law may be mitigated by evolving transnational norms for some of the issues examined.

The advent and development of soft law in international arbitration is no new phenomenon. More than thirty years ago, a proposition was advanced that soft law has become nearly indispensable in international arbitral practice (Reisma nn, 1988). Today, while there are many who fully support this proposition, a growing number of actors in international arbitration generally take a critical stance regarding the non-consensual use of soft law in arbitral proceedings. The aim of this chapter is to analyse these two poles in order to examine the current state of soft law in international arbitration. This chapter first discusses the theoretical concepts of soft law in international arbitration. Then, the application of soft law in international arbitration is explored, by taking into account its relevance to commercial and investment arbitration. Finally, prominent soft law instruments pertaining to procedure, ethics and the merits of an arbitration case will be assessed briefly both in terms of reasons for their development and reception in practice. The chapter concludes with some reflections on the role of soft law in today’s arbitral practice and possible future developments.

This chapter examines the regulation of counsel within international commercial courts, with particular attention given to such courts in Qatar, Dubai, Abu Dhabi and Singapore. The chapter begins by assessing debate on counsel ethics within international arbitration. Because debate within international arbitration is more developed, it offers a background for identifying challenges endemic to the ethical regulation of transnational lawyering in international commercial courts. The chapter then identifies three regulatory approaches to regulating counsel practising before these courts. It is argued that this diversity affords due space to the distinct institutional structures and needs of the various courts and that it would be imprudent and unnecessary to pursue greater harmonization.

As the international business community and their legal advisors have become more sophisticated in choosing the fora for resolving their disputes, a number of ‘international’ courts have been established to compete with arbitration in the lucrative international dispute resolution market. This chapter examines the features of these courts that have been designed in response to the perceived strengths and deficits of national courts in relation to arbitration so as to maximise those strengths and reduce those deficits for courts and improve their competitive advantages for those in need of international commercial dispute resolution services.

This chapter assesses international law-based possibilities to hold corporations accountable for their human rights impacts.The negotiations by the UN Human Rights Council on a binding international treaty on BHR is the most significant development in this regard. This chapter takes a detailed look at the idea and prospect of such a binding legal framework. Before doing so, some other potential accountability mechanisms in the realm of international law are assessed – namely, international investment law and international arbitration. The chapter takes a thorough look at international investment agreements and bilateral investment treaties and how these instruments could be improved to account for human rights. It also explores arbitration as an instrument to deal with BHR disputes. Finally, it briefly touches on the idea of a world court of human rights.

This chapter assesses the compliance of institutional DRMs with the fair trial criteria developed. Three types of DRMs will be subjected to scrutiny. These are permanent judicial mechanisms, arbitration and non-judicialised DRMs. As judicial mechanisms are principally established to resolve employment disputes, the focus is on the leading international administrative tribunals, namely, the UN Dispute and Appeals Tribunals and the Administrative Tribunal of the International Labour Organisation. Second, the chapter will focus on the role international arbitration plays in resolving claims against IOs. The chapter shows that little thought has been given to implement arbitration as a sustainable and viable option to resolve claims against IOs. Unless a specialised arbitral regime is created that takes into account the particularities of disputes involving IOs, the chances of arbitration providing for an appropriate DRM are dim. Finally, the chapter makes a brief comment on non-judicialised DRMs, such as ombudsperson processes. While such DRMs play an important complementing role, they cannot replace an independent and impartial forum empowered to render a binding judgment. Finally, the chapter highlights that alarmingly, in too many situations, private parties cannot access any DRM at the international level at all. Access to justice is thus comprehensively undermined.

This chapter examines the system of dispute settlement that is applicable to the Protocol. This system presents a rather unique combination of, on the one hand, the continued jurisdiction of the Court of Justice of the European Union (CJEU) and, on the other hand, an arbitration procedure. As has been rightly observed, these are two very different enforcement mechanisms. The former relies on an existing supranational court which monitors respect for the EU legal order, works together with national courts, and allows some measure of access to individuals. The role of the CJEU is controversial: its case law and jurisdiction were political drivers of the proponents of the withdrawal of the UK from the EU. The latter (arbitration), in contrast, represents a much more traditional public international law method that is new and available only to the parties of the WA.