DRAFT

The Prospects for International Adjudication:
A Roundtable Discussion on Legal and Policy Issues Arising from
the Emerging "Market" in International Courts and Tribunals

Organised by:

The Project on International Courts and Tribunals
Herbert Smith
Matrix Chambers

Tuesday 25 July

A Roundtable discussion was held on Tuesday 25 July 2000 as a side event to the International Law Association (ILA) 2000 conference at the Barbican Conference London. The aim of the session was to consider, in an informal setting, current issues and challenges posed by the recent increase in international courts and tribunals and their caseload.. This note highlights some of the main issues raised by the Roundtable participants, with a view to identifying possible areas for future work by the ILA in this area.

The three main areas for discussion were:

(1) relationships between international tribunals, and between international tribunals and national courts;

(2) procedural issues, including access to international courts and tribunals and rules of professional conduct as applicable to the international bar and bench; and

(3) evidentiary issues before international courts and tribunals.

1. Relationship between international courts and tribunals and between international and national courts

With regard to the relationship between the various international courts and tribunals, a number of challenging issues were raised including:

  • Jurisdiction: lis pendens
  • Forum shopping
  • Multiple cases before various tribunals arising out of the same set of facts (e.g. disintegration of the former Yugoslavia) - in particular where those actions involve difference actors, e.g. individuals (as plaintiffs in human rights cases or defendants in proceedings before international criminal tribunals) and states.
  • Cross-fertilisation of legal precedent
  • Related evidentiary issues - standards of evidence; treatment of findings of fact of another tribunals - res judicata
  • Coherence of international law

2. Procedural issues

In relation to access to international courts and tribunals, discussion focused on the issue of interventions by non-state actors before international courts and tribunals. A brief review of existing rules and practice highlighted that these vary widely between the various international courts and tribunals. The range of rights of access may include formal rights of third party intervention, the submission of amicus curiae briefs (often requiring the leave of the tribunal), or the informal submission of information and materials to the tribunal. The existence, nature and extent of access tend to depend, inter alia, on:

  • The nature of the proceedings/tribunal (e.g. arbitration cf. human rights)
  • The actors involved (e.g. state parties; NGOs; individuals)

It was suggested that this was an issue which the ILA might usefully consider further. For example, if extended rights to submit amicus interventions are to be permitted, then some degree of regulation may be desirable, addressing issues such as:

  • Availability of documents
  • Right to make oral arguments
  • Extent to which tribunals should address issues and arguments raised by an amicus
  • Circumstances in which leave to intervene as amicus may be granted
  • Time limits for interventions
  • Nature of permitted interventions

Time constraints did not permit detailed consideration of professional conduct issues arising in relation to international courts and tribunals.

3. Evidentiary issues

The question of evidence before international tribunals was raised in the light of the increased number and caseload of international tribunals, and the trend for international tribunals to be called upon increasingly to make findings of fact as well as law. The scientific and technical nature of much of the evidence before international tribunals was also mentioned. It was generally recognised that evidentiary rules of international courts and tribunals are flexible and that rigid universally applicable rules may not be desirable. The variety of international tribunals, and the types of evidence with which they are faced, was highlighted. Nonetheless, participants did note the need to consider evidentiary issues in more depth, and, in particular, to address the question of how far facts determined under the rules of evidence of one international tribunal could be relied upon in another.