Forum shopping in international adjudication : the role of preliminary objections / Luiz Eduardo Salles.
2014
KZ6250 .S25 2014 (Map It)
Available at Cellar
Formats
| Format | |
|---|---|
| BibTeX | |
| MARCXML | |
| TextMARC | |
| MARC | |
| DublinCore | |
| EndNote | |
| NLM | |
| RefWorks | |
| RIS |
Items
Details
Title
Forum shopping in international adjudication : the role of preliminary objections / Luiz Eduardo Salles.
Published
Cambridge, United Kingdom : Cambridge University Press, 2014.
Call Number
KZ6250 .S25 2014
ISBN
9781107035966 (hardback)
1107035961 (hardback)
1107035961 (hardback)
Description
xlii, 320 pages ; 24 cm.
System Control No.
(OCoLC)863100746
Summary
"Forum shopping, which consists of strategic forum selection, parallel litigation and serial litigation, is a phenomenon of growing importance in international adjudication. Preliminary objections (or a party's placement of conditions on the existence and development of the adjudicatory process) have been traditionally conceived as barriers to adjudication before single forums. This book discusses how adjudicators and parties may refer to questions of jurisdiction and admissibility in order to avoid conflicting decisions on overlapping cases, excessive exercises of jurisdiction and the proliferation of litigation. It highlights an emerging, overlooked function of preliminary objections: transmission belts of procedure-regulating rules across the 'international judiciary'. Activating this often dormant, managerial function of preliminary objections would nurture coordination of otherwise independent and autonomous tribunals"-- Provided by publisher.
Note
Based on author's dissertation (doctoral) -- Graduate Institute of International and Development Studies (Geneva, Switzerland), 2011.
Bibliography, etc. Note
Includes bibliographical references (pages 299-311) and index.
Record Appears in
Table of Contents
Foreword
xiii
Acknowledgments
xv
List of acronyms and abbreviations
xvii
Table of cases
xxi
Table of treaties
xxxvii
Table of documents
xl
Introduction
1
The research question and this book's perspective
1
The importance of the framework suggested in this book
7
The thrust of the argument
11
The structure of this book
12
1.
The rise of forum shopping
16
1.1.
Introduction
16
1.2.
The transformation of international adjudication
17
1.2.1.
The multiplication of international tribunals
18
1.2.2.
From ad hoc consent to inbuilt consent to jurisdiction
21
1.2.3.
The "privatization" of international litigation
23
1.2.4.
The new market of international adjudication: let's go shopping
27
1.3.
Potential concerns arising from forum shopping
30
1.3.1.
The delegation function of procedural norms in a dynamic context: the puzzle of inbuilt consent
32
1.3.2.
The enabling and protective functions of procedural norms in a dynamic context: a balance between complainant's autonomy and fairness-to-the-defendant considerations
35
1.3.3.
The allocative function of procedural norms in a dynamic context: a system-based versus a regime-based approach to international tribunals
40
1.3.4.
Systemic- and party-driven concerns arising from conflicting rulings: the question of mutually (in)consistent rulings
43
1.4.
Concluding remarks
46
2.
Forum shopping and procedure
47
2.1.
Introduction
47
2.2.
Procedure
48
2.3.
Procedure in the context of forum shopping: a new, emerging role for preliminary objections
54
2.3.1.
Preliminary objections as procedural shields
56
2.3.2.
Preliminary objections as transmission belts of procedure-regulating rules
62
2.4.
Some limitations of the present approach
65
2.4.1.
Three levels at which politics, policies, and preferences influence the assessment of forum shopping
68
2.5.
Concluding remarks
75
3.
Preliminary questions and preliminary objections
76
3.1.
Introduction
76
3.2.
The concept of preliminary questions and objections in international adjudication
77
3.2.1.
Material character and effect of preliminary questions
81
3.2.2.
"Timeline-related" character and effect of preliminary questions
83
3.3.
Procedure versus substance, back again
90
3.3.1.
Procedure mutates into substance, and vice versa: a contextual distinction
90
3.3.2.
A functional and contextual demarcation method based on the object of the request and the controverted claims
93
3.4.
Preliminary questions and facts entangled with the merits: practical alternatives
97
3.4.1.
Alternative 1: postponing the decision on the preliminary question until the merits stage
99
3.4.2.
Alternative 2: provisionally concluding on facts related to the merits at the preliminary stage
101
3.4.3.
Alternative 3: definitively concluding on the issue related to the merits at the preliminary stage
102
3.5.
Concluding remarks
110
4.
The source and contours of international tribunals' authority to rule on preliminary questions
112
4.1.
Introduction
112
4.2.
Adjudicatory jurisdiction, principal jurisdiction, incidental jurisdiction, and the inherent power to rule on preliminary objections
114
4.2.1.
Disentangling the concept of adjudicatory jurisdiction
114
4.2.2.
Inherent powers (or inherent jurisdiction) in international tribunals
117
4.2.3.
Limitations to inherent jurisdiction
119
4.2.4.
The power to rule on preliminary questions as inherent jurisdiction
122
4.3.
The scope of the applicable law of preliminary objections
123
4.3.1.
Preliminary objections may draw on "all international law"
123
4.3.2.
Deriving the scope of preliminary objections in WTO adjudication from the scope of applicable law, and vice versa
124
4.4.
The stabilizing effect of a decision on a preliminary question
135
4.4.1.
Decisions within principal jurisdiction versus decisions beyond principal jurisdiction
135
4.4.2.
Decisions on preliminary questions (procedural res judicata) and decisions on the merits (substantive res judicata)
138
4.5.
Concluding remarks
140
5.
Jurisdiction and admissibility
141
5.1.
Introduction
141
5.2.
A distinction that makes a difference
142
5.2.1.
Traditional reasons for a dual categorization
146
5.2.2.
The dual categorization and forum shopping
155
5.3.
Three typical approaches to jurisdiction versus admissibility
160
5.3.1.
The indifference approach: jurisdiction and admissibility as acceptability
161
5.3.2.
The objectivist approach: jurisdiction as a tribunal-centered concept, admissibility as a claim-centered concept
163
5.3.3.
The "conventionalist--residualist" approach: jurisdiction as consent, admissibility as a residual category
168
5.4.
Addressing forum shopping strategies through preliminary questions: jurisdiction or admissibility?
173
5.4.1.
Forum shopping raises jurisdictional questions: the direct model of jurisdictional organization/procedural coordination
174
5.4.2.
Forum shopping raises questions of admissibility: the indirect model of procedural coordination
176
5.5.
Concluding remarks
178
6.
International tribunals' discretion to (not) exhaust principal jurisdiction and forum shopping
180
6.1.
Introduction
180
6.2.
Discretion and its dimensions
182
6.3.
Discretion to dismiss
186
6.3.1.
Stating the obvious: tribunals are meant to decide on the merits of admissible claims under their jurisdiction
186
6.3.1.1.
The prohibition of non liquet and discretion not to exhaust principal jurisdiction
188
6.3.2.
Discretion to dismiss and the purpose of adjudication: a survey on discretion not to exhaust jurisdiction over admissible claims
190
6.3.2.1.
The "essential third party" rule: discretionary or peremptory dismissal?
192
6.3.2.2.
Mootness, declaratory judgments, and the outer limits of discretion to dismiss
195
6.3.2.3.
Confirming discretion to dismiss in the context of purely declaratory judgments in the WTO context: measures revoked or modified after the panel request
198
6.3.2.4.
Confirming discretion to dismiss in the context of purely declaratory judgments in the WTO context: judicial economy
202
6.3.3.
Partial conclusion: the limited role of discretion to dismiss in relation to forum shopping
203
6.4.
Discretion to stay: a window of opportunity
205
6.4.1.
Discretionary stays as case management: survey of procedural rules
205
6.4.2.
Discretionary stays and the WTO DSU time limits
207
6.4.3.
Discretionary stays and forum shopping: examples from practice
212
6.5.
Abstention doctrines in international adjudication: a potential way forward?
217
6.6.
Concluding remarks
225
7.
Principles and rules permitting procedural coordination through the prism of preliminary objections
227
7.1.
Introduction
227
7.2.
Exclusive jurisdiction clauses
228
7.2.1.
Exclusive jurisdiction clauses generally
228
7.2.2.
Is Article 23 of the DSU an exclusive jurisdiction clause, and does this really make the WTO an "absolute" jurisdiction?
235
7.3.
Fork-in-the-road clauses
245
7.3.1.
Fork-in-the-road clauses generally
245
7.3.2.
Fork-in-the-road clauses in the investment arbitration context
247
7.3.3.
Fork-in-the-road clauses in the human rights context
251
7.3.4.
Fork-in-the-road clauses in the international trade context
257
7.4.
Subsidiary jurisdiction clauses
260
7.5.
Preferential jurisdiction clauses
265
7.6.
The protection of res judicata and collateral estoppel
267
7.7.
A protection of lis pendens?
277
7.8.
Aggregation doctrines
281
7.9.
Concluding remarks
287
Conclusion
290
A procedural tack on forum shopping
290
A summary of the book
290
Forum shoppers, preliminary objectors, and the case-by-case management of jurisdictional overlaps
295
References
299
Index
312