Funding of and Access to
International Courts and
Dispute Settlement Bodies
Report of Meeting,
31 January - 1 February 1997
A meeting on the funding of and access to international dispute settlement bodies was held in London on 31 January and 1 February 1997, organised jointly by the Programme on International Law and Sustainable Development of the Foundation for International Environmental Law and Development (FIELD), and the Center on International Cooperation, New York University.
The meeting was convened in the context of the recent establishment of a number of new international dispute settlement bodies and the increased case-load of existing bodies. In particular, it sought to identify and assess the opportunities and challenges posed to the international community by the proliferation of international dispute settlement bodies and the apparent renewed willingness of states to submit their disputes to third party adjudication. The meeting focused primarily on two aspects:
- first, issues related to the financing of, and related arrangements for, the dispute settlement bodies themselves;
- second, issues related to access to these dispute settlement bodies.
The meeting considered that a coherent Project should be developed. It could be charged with continuing research, promoting education, conducting training, and providing practical assistance on the settlement of international disputes. Ten specific activities were identified amongst the various options.
Thirty-two participants, active in various aspects of international dispute settlement, were brought together. They all participated in their individual capacity, and the meeting was conducted under "Chatham House Rules". Participants included Registrars and senior officials of the registries or secretariats of most of the principal international dispute settlement bodies; former judges of international courts and dispute settlement bodies; senior academic practitioners with extensive experience in international litigation; government legal advisers (from both developed and developing countries); legal advisers to non-governmental organisations, and members of the private bar.
A full list of participants is set out at Annex I. Among them were individuals with direct experience, either currently or in the past, of the following bodies:
- the International Court of Justice;
- the World Trade Organisation (Dispute Settlement Body);
- the International Tribunal on the Law of the Sea;
- the International Centre for the Settlement of Investment Disputes;
- the Permanent Court of Arbitration;
- the United Nations Compensation Commission;
- the Inter-American Court of Human Rights;
- the European Court of Human Rights;
- the Iran-US Claims Tribunal; and
- the Implementation Committee of the Montreal Protocol to the Vienna Convention on the Protection of the Ozone Layer.
The meeting was chaired by James Crawford, Whewell Professor of International Law at the University of Cambridge and Co-Director of the Research Centre for International Law. It was convened jointly by Philippe Sands, Reader in International Law at the University of London (School of Oriental and African Studies) and Director of Studies of FIELD, and Dr Shepard Forman, Director of the Center on International Cooperation. The rapporteurs were Ruth Mackenzie, Programme Director at FIELD, and Cesare Romano, Research Fellow at the Center. Funding for the meeting was provided by The Ford Foundation.
The meeting opened with an address by Sir Tim Lankester, Director of the School of Oriental and African Studies and formerly Permanent Secretary of the Overseas Development Administration at the UK Foreign and Commonwealth Office. The agenda for the meeting is set out at Annex II. Two background papers, addressing the cost of international justice and issues affecting access to international justice, were prepared for the meeting. These are set out at Annexes III and IV. As part of the follow-up process they will be revised in the light of the discussions at the meeting, and further information provided by the participants.
The meeting was structured in two parts. During the first day the participants discussed the costs incurred by international courts and dispute settlement bodies (operational costs), how financing and related issues might affect their functioning and possible solutions. During the second day the participants discussed the issue of the costs incurred by the parties to proceedings before these organs (litigation costs) and the ways in which access to international justice could be enhanced.
Financing of International Courts and Other Dispute Avoidance and Settlement Bodies ("Dispute Settlement Bodies")
On the first day, the meeting considered the issue of the cost of international justice, including aspects of the financing of international courts and tribunals. Shepard Forman introduced the discussion by remarking that the meeting was probably the first time that senior officials and registrars of such a large number of dispute settlement bodies and mechanisms had been convened together. The meeting therefore offered to the participants a unique opportunity to compare and learn from the administrative and financial problems affecting a number of international courts and dispute settlement bodies.
Cesare Romano introduced his Background Paper (Annex III), which took into consideration eleven different international courts and dispute settlement bodies.
The issues identified for discussion were:
- heterogeneity of bodies considered;
- overall cost of international justice;
- cost reduction; and
- sources of financing.
The meeting took advantage of the presence among the participants of several senior officers and registrars of existing international courts and dispute settlement bodies, who provided a direct account of the problems affecting their functioning and financing. In general, in the ensuing discussion the participants agreed that limited budgets significantly hinder the capacity of some international courts and dispute settlement bodies to properly discharge their functions. In particular, limited resources may affect both the length of procedures and the quality of settlements, undermining confidence in their capacity to deal effectively and efficiently with international disputes. Moreover, reduced budgets and dependency on States' political will hinders significantly the capacity of the various registrars and secretariats to plan their activities strategically.
(1) Heterogeneity of bodies considered
At the outset of the discussion, the participants recognised the inherent difficulty of any comparative exercise which intends to analyse, within the same context, structurally different international bodies. Moreover, there was a general agreement among the participants that while an aggregate data analysis raised interesting questions about the overall cost of international justice, the financial and operational situation of the bodies considered varied considerably and warranted more specific institutional analysis. On the one hand, some international courts and bodies are affected by severe budgetary constraints and general scarcity of resources, others by a limited case-load, and yet others by both problems. On the other hand, some international courts and bodies are allocated sufficient resources to manage a crowded docket swiftly and efficiently. As a consequence, problems and measures identified for one body might not necessarily apply to the other.
Despite these difficulties, the participants recognised the timeliness and advisability of the exercise and recommended further investigation. In particular, the participants agreed that future research should not be limited only to inter-state disputes, but encompass also quasi-judicial mechanisms, and mechanisms available to disputes between states and non-state entities. The meeting recognised that individuals and non-state entities are playing an increasing role in international life. As a consequence, it was suggested that individuals and non-state entities be given due consideration when discussing measures to enhance access to international courts and dispute settlement bodies.
(2) Overall Cost of International Justice
Participants stressed the limited cost of the administration of international justice. The overall figure presented in Romano's paper ($240 million, scaled down to $100 million if the European Court of Justice is excluded) represents an extremely small share of the overall cost of international cooperation. It was noted, however, that resources are unevenly distributed among existing international courts and dispute settlement bodies.
Several senior officials and registrars present at the meeting underlined that the resources allocated to the respective bodies have generally remained stagnant and, despite a general increase in the case-load, have not grown in real terms. Finally, they emphasised that the benefits the international community derives from the existence of a system to administer international justice and peacefully settle disputes greatly outweighed its costs. In the light of the incompleteness and the methodological problems that assessing the overall cost of international justice implies, the meeting recommended further investigation on a case-by-case basis.
Several participants noted that while in principle resources allocated to the administration of international justice are rather limited, it might be useful to shift the focus of the discussion from the need to increase present resources allocated to the administration of international justice to cost reduction. To this end, participants noted the need to break down aggregate figures to determine which items in the budgets of international courts and dispute settlement bodies could be reduced to achieve greater efficiency.
Among others, the meeting identified two major areas of intervention:
Several senior officials and registrars, as well as practitioners, pointed out that translation costs can represent a significant share of operational costs. In certain cases (e.g. the Court of Justice of the European Communities) the weight of translation costs is due to the large number of languages allowed. More often, operational costs grow because of the length of the pleadings and documents submitted by the parties. Some of the participants suggested that litigants should voluntarily introduce a measure of self-restraint in order to maintain operational costs within reasonable limits. Others pointed out that restraint should be rather imposed on litigants through the adoption of more stringent rules of procedure.
There was a general feeling that translation costs should not be transferred back to parties because doing so might deter less well-endowed litigants from having access to international courts and dispute settlement bodies. Finally, some senior officials and registrars attending the meeting pointed out that translation of an increasing number of lengthy documents and pleadings not only causes a significant increase in the cost of procedures but also significantly hinders the capacity of international courts and dispute settlement bodies to deliver settlements swiftly. Length of proceedings was, indeed, generally recognised as being the most serious threat to the credibility of the international legal system.
- Statutes and Rules of Procedure
Several participants pointed out that statutes and rules of procedures of international courts and dispute settlement bodies in many instances significantly affect operational costs. In that regard, they welcomed the participation of registrars and senior officials at the meeting and noted the absence of any in-depth comparative study on this particular issue. The meeting stressed that further research on the working procedures of these bodies and mechanisms would be valuable in order to learn from each others best practices.
The meeting further considered the issue of the sources of financing for international courts and dispute settlement bodies. Several issues were considered under this topic.
First, during the meeting participants discussed the relative advantages and problems raised by direct and indirect funding. The meeting stressed that independence of international courts and dispute settlement bodies is paramount if their credibility, and as a consequence, their role is to be enhanced. For this reason, several participants pointed out that direct funding by states and non-state entities might raise ethical issues. However, certain activities, not strictly judicial, performed by international courts and dispute settlement bodies (i.e. publication of proceedings and general information on the activities carried out; promotion and cooperation with other bodies) might be, and in certain cases already are, conveniently funded ad hoc by state and non-state entities without raising ethical concerns. Contributions in kind (e.g. training, equipment and seconded personnel) are generally considered as highly desirable and might effectively help to overcome resources constraints that affect the work of international court and dispute settlement bodies.
The meeting further considered the possibility of endowing international courts and dispute settlement bodies with their own and independent sources of financing. However, while its desirability was generally recognised, it was pointed out that self-financing is hardly a politically viable option and, in any case, would result in the adoption of user-pays principles, or the adoption of filing fees. Indeed, there was general agreement among participants that shifting the burden of operational costs to participants to procedures is not a desirable solution because, unless coupled with some sort of financial aid, it could significantly deter less well-endowed parties to participate.
Finally, during the meeting it was noted that one possible way to help international courts and dispute settlement bodies to cover their operational costs might be to subject monetary awards to a deduction. However, this possibility seems to be subject to two main constraints. First, monetary awards in international litigation are rather exceptional. Second, withholding of a part of the monetary award might be carried out only when decisions are self-executing (e.g. when they can be immediately executed without the need of the intervention of domestic jurisdictions).
Access to Dispute Avoidance and Settlement Mechanisms
On the second day of the meeting the participants considered obstacles to effective access to dispute settlement bodies, particularly for developing countries and participants from these countries, and possible ways to enhance such access. Philippe Sands introduced his Background Paper (Annex IV), which identified the following issues for discussion:
- costs of proceedings to the disputant;
- court/tribunal procedures and institutional gaps;
- the role of the international legal profession;
- the need for training and capacity-building; and
- accessibility of information.
There was general agreement among the participants on a number of preliminary and general issues. First, that trends in recent years reflected a significant expansion in the number of dispute settlement bodies as well as a greater willingness to have recourse to them, especially by developing countries. Second, that in suggesting ways to enhance access to international dispute settlement Bodies it was imperative to respect the differing functions and working arrangements of the various bodies: each had been created with a particular purpose in mind and was subject to its own particular context. And third, as a consequence of this previous point, measures which might be appropriate in relation to one body might not necessarily be appropriate for another.
- The costs of international litigation were identified as an important barrier to access to international mechanisms for the settlement of disputes
The second part of the meeting considered the issue of costs incurred by parties in conducting international litigation. Discussion focused on three issues:
- the extent to which there was a public interest in the issue of how international litigation was financed, and whether there should, in effect, be a "right" to litigate. Although a range of different views were expressed, there was broad agreement that further research should be carried out on the topic, focusing in particular on whether the costs of different dispute settlement mechanisms significantly affected the extent of recourse to them, particularly amongst different groups of States.
- the experience under the International Court of Justice Trust Fund established by the UN Secretary General in 1989 to provide financial assistance to developing countries in the conduct of litigation brought to the Court by agreement of the disputants. It was noted that there had actually been few requests for assistance from the Fund, although at least one applicant had experienced a delay in obtaining a decision on an application for assistance. The limited availability of the Trust Fund to cases brought to the Court by special agreement of the parties to a dispute, as well as the limited sums available, were also considered to be disadvantages. The meeting agreed that further consideration should be given to establishing equivalent Trust Funds for other tribunals, noting that the Permanent Court of Arbitration had already established an equivalent.
- the role of pro bono assistance. The meeting recognised that whilst legal advice and assistance could be expensive, there were a considerable number of practitioners who had worked on a pro bono basis or for reduced fees in relation to certain cases. Again, a broad range of views was expressed as to merits of encouraging pro bono legal assistance for public international litigation. A number of participants expressed the view that where States' interests were at stake in a dispute they would always be willing to fund the costs of international litigation. Other participants considered that this view failed to recognise the practical realities facing impecunious States. The sense of the meeting was that the subject merited further consideration.
- Working procedures and institutional gaps
Continuing the discussion which was introduced during the first part of the meeting, there was some discussion about whether, and if so to what extent, the working procedures adopted by certain international dispute settlement bodies might themselves impede access to those mechanisms. There was agreement that further comparison of the different working procedures of these bodies and mechanisms was needed, with a view to identifying those working procedures which might make access more effective. Issues which might be addressed included rules and practices on documentation and translation, case timetables, and fees (if any) payable to the body. In addition, it was pointed out that institutional gaps might exist at the international level resulting in there being no redress mechanism available for certain types of complaints. Some participants suggested that the amicus curiae principle be allowed within the procedures of dispute settlement bodies so as to permit representation of the public interest (for example, by non-governmental organisations) in specific cases.
- The role of the international legal profession
The participants discussed at some length ways in which the international legal profession might contribute to improving access to dispute settlement bodies for states with limited financial or human resources. The meeting focused on three ideas: first, the possibility of establishing a public interest international law firm; second, the utility of drawing up a list or panel of international legal practitioners willing to provide advice and assistance to certain states on a pro bono basis in relation to international disputes; and third, the issue of a funding mechanism. In respect of each the participants emphasized that advice and assistance should be available not only in relation to disputes which had arisen, but should also play a preventive, dispute avoidance, function.
While there was general agreement that it was premature to attempt to establish a public interest international law firm at this time, further consideration could be given to the possibility. Certain practical difficulties with this option were raised, including the apparent need for two such firms to be available so as to ensure that both parties to a dispute might receive assistance if necessary.
There was more support for the idea of drawing up a list of international lawyers who might be available to provide pro bono advice and assistance. This would draw upon existing arrangements at the national level, and some international efforts already operational in certain areas. Such a list could be made widely available to states and other members of the international community. A number of practical issues would require further consideration, including: the criteria to be applied in determining who could qualify for the inclusion on the list or panel; the identification of the institution or institutions responsible for drawing up the list; and the means of disseminating the list. The meeting agreed that it would be important not to create the illusion of equality by making inexperienced advisors available to states with limited resources.
Related to the panel or list concept, the idea was also mooted of establishing on a more formal basis an international bar for cases before the International Court or other international tribunals or bodies, principally to provide a greater degree of quality control mechanism. Certain international courts, such as the European Court of Justice, already limit those persons available to appear before it, as do WTO Dispute settlement panels, applying different criteria. The meeting agreed that it would be timely for further consideration to be given to the issues raised by the idea, taking into account other regional and institutional practise. In this regard there was broad support for the view that the number of lawyers from developing countries appearing before the International Court and other tribunals should be significantly increased.
A further point on which the meeting was in general agreement concerned the need to ensure that where external advisors might be used they should always work with local lawyers at all stages of a dispute. Beyond the benefits that would flow to the case, this would develop local expertise and capacity. In this respect, it was also stressed that an important element in the management of international litigation was the need for good organisation, including an appropriate support network within the different levels of government.
As to funding mechanisms the participants noted the existence in a number of jurisdictions of Interest on Lawyers Trust Accounts (IOLTA) Programs, government-authorised programs permitting bar associations to accumulate interest earned from lawyers' trust accounts to fund public interest legal organisations. Although such trust accounts do not exist in international legal practise and there is no formal international bar, the meeting agreed that further consideration could be given to internationalising this and other innovative schemes.
- Training and capacity building
The meeting considered the need for further training and capacity building in the management of international disputes. It was noted that legal awareness training was required within all governments, not only those in developing countries or economies in transition, so that government officials were aware of their country's international legal commitments and might identify situations where disputes might arise.
A number of suggestions were made for enhancing capacity to utilise the various dispute settlement mechanisms. These included the possibility of secondments to, internships at or "stages" with specific dispute settlement bodies; and "shadowing" or "clerking" schemes, as exist at the national level. In relation to more formal training, it was suggested that the dispute settlement bodies might individually or jointly offer, or contribute to, short training courses on their organisation and procedures. In addition, special university courses might be offered addressing dispute settlement procedures.
As mentioned above, the need to build capacity by involving local lawyers in the work of external advisors in specific cases was emphasised.
- Information on Dispute Settlement Bodies
One of the key constraints identified to access to dispute settlement mechanisms was lack of accessible information about the various dispute settlement bodies and how they work. There was general agreement that it would be useful to develop a Handbook or Manual containing detailed information on organisational and procedural aspects of the various mechanisms. This might include a compendium of the statutes and rules of the different bodies. The guide could be aimed at a range of potential user groups, both governmental and non-governmental, and might also be made available through an Internet site.
It was also noted that many universities and other institutions in developing countries lacked basic documentation. A Handbook/Manual could help to meet this need, but other means to make documentation and up-to-date information available should also be considered.
There was general agreement amongst the participants that the international community had given inadequate attention to issues arising from the proliferation of international dispute settlement bodies and the increased recourse to these Bodies. Consequently it would be worthwhile to develop a coherent Project which addressed the issues discussed at the meeting and other, related issues.
The meeting considered that such a coherent Research Project could be charged with continuing research, promoting education, conducting training, and providing practical assistance on the settlement of international disputes. Specific activities might include:
- undertaking a research on the wider theoretical issue of the role of justice in the international system;
- continuing research on the structure and financing of international Dispute Settlement Bodies; and
- conducting research on the rules and procedures of the various bodies, including how they affect issues of cost, functioning and access
- conducting annual short courses for legal advisers from developing countries on international litigation and dispute management, beginning in the summer of 1998 and/or conducting in-country courses for developing countries and economies in transition on international litigation and dispute management, arranged individually or regionally;
- considering means of improving the conditions under which appropriate indigenous and outside international legal expertise can be made available to developing countries and economies in transition;
- to enhance the prospects for access by publishing and disseminating, particularly in developing countries, a practical Handbook on International Dispute Settlement Bodies;
- developing a resource base of materials associated with Dispute Settlement Bodies, including reports of decided cases, rules of procedure etc, which could be disseminated at no charge on the World Wide Web;
- providing a forum for discussion between policy-makers, both governmental and non-governmental, with a view to developing an agenda for the progressive development of law and policy in this field;
- contributing to the 1999 centennial commemoration of the establishment of the Permanent Court of Arbitration and the conclusion of the UN Decade of International Law;
- establishing and maintaining a permanent channel of communication between existing courts and dispute settlement bodies.