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International Dispute Settlement  

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Introduction

Introduction

to

Dispute Settlement in International Law

This Guide is heavily weighted toward litigation and arbitration, but the Introduction defines the other types of international peaceful means of dispute settlement because students may run across them in their reading. But litigation is the only peaceful means of dispute settlement that regularly publishes its results. Arbitral awards that come from an intergovernmental organization’s dispute settlement body such as the World Trade Organization (WTO) may be published. But not every intergovernmental organization’s dispute settlement body does so and the awards of ad hoc arbitration tribunals are generally confidential. Chapter VI of the UN Charter lists the following methods of peaceful settlement of disputes: negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

Litigation and arbitration are both considered to be judicial as opposed to political means of settlement because their results are both legally binding. The terms of arbitration are agreed on in advance either through an ad hoc agreement or a treaty. The former is called a compromis and the latter a compromissory clause. In both cases the parties agree to the jurisdiction of the arbitrators, the method of selecting the arbitrators, a definition of the dispute, the procedure to be followed, and sometimes the applicable law. Litigation results in opinions that are usually published; arbitration results in awards that are sometimes published.

Conciliation differs from arbitration in one very important respect: the result of the former is not legally binding and thus has no influence on any further litigation of the dispute. Boczek [1] defined conciliation as “...a diplomatic method of third-party peaceful settlement..., whereby a dispute is referred by the parties, with their consent, to a permanent or ad hoc commission, ...whose task is impartially to examine the dispute and to prepare a report with the suggestion of a concrete proposal.”

Mediation is clearly a political method of settlement. In mediation a third-party, acceptable to both parties to the dispute, effects communication between the parties and participates actively in the process of negotiation by offering proposals for settlement.

Similar to mediation is good offices, which is not mentioned in the UN Charter. Good offices is recognized by the Hague Convention for the Pacific Settlement of International Disputes of 1899 (187 CTS 410). It is like mediation except that the third-party does not participate actively in the negotiations. S/he merely effects communication between the parties saving them the difficulties of personal contact. And the parties have no prior commitment to the result.

Enquiry is also called inquiry or fact-finding, which is a good description of what it is. It may be used as an independent procedure or as a preliminary part of other methods of peaceful dispute settlement. It can and, in a few cases, it has led to settlements by exposing the truth of a situation to the parties involved.

Negotiation “...is a diplomatic procedure whereby representatives of states engage in discussing matters...between them...to clarify and reconcile their divergent positions and resolve the dispute.” [2]

There is much more to learn about international dispute resolution.  You can find this information in nearly any comprehensive general introduction to international law or in many specialized books.  Begin your search for these kinds of resources in our catalog, UCLID

[1] Boleslaw A. Boczek, International Law: A Dictionary 356 (Scarecrow Press, Dictionaries of International Law, No. 2, 2005)
[2] Id., at 379

 

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James Hart
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