دانلود کتاب Provisional Measures Before International Courts and Tribunals

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Cover
Half title
Series
Title
Copyright
Epigraph
Contents
Foreword
Preface
List of Abbreviations
Table of Cases
Table of Treaties and Documents
1 Introduction
I Provisional Measures in International Law
A Definition and Character of Provisional Measures
B Provisional Measures and the Inherent Powers of International Courts and Tribunals
II Scope of the Book
A Overall Purpose
B Coverage of International Courts and Tribunals
III Outline of the Book
Part I Preliminary Matters
2 Origins of Provisional Measures
I Introduction
II Municipal Law Origins
A Provisional Measures in Antiquity and the Middle Ages
1 Greco-Roman Origins
2 Provisional Measures in Canon Law
B Provisional Measures in the Common and Civil Law Traditions
1 The Common Law and the Interlocutory Injunction
2 The Civil Law Tradition and the Codifying Impulse
(a) France and the Code de Procédure Civile
(b) Germany and the Zivilprozessordnung
(c) Switzerland and the Conflation of Traditions
III Development by Early International Courts and Tribunals
A The Early International Codification Projects: 1873-1907
B The American Experience: 1902-1918
1 The Treaty of Corinto
2 The Central American Court of Justice
(a) Honduras v El Salvador and Guatemala
(b) The Bryan-Chamorro Treaty Cases
(i) Costa Rica v Nicaragua
(ii) El Salvador v Nicaragua
3 Provisional Measures in the Bryan Treaties
4 Assessing the Central American Experience
C Provisional Measures and Inter-War Arbitration
1 Inter-State Arbitration Treaties
2 The Mixed Arbitral Tribunals
IV The Permanent Court of International Justice
A The Statute of the Permanent Court of International Justice
1 The Advisory Committee of Jurists
2 Adoption of the Statute
B Procedural Rules of the Permanent Court of International Justice
1 The 1922 Rules
2 The 1931 Rules
3 The 1936 Rules
C The Jurisprudence of the Permanent Court of International Justice
1 The Sino-Belgian Treaty Case
2 Factory at Chorzów (Indemnities)
3 South-Eastern Greenland
4 The Prince von Pless Case
5 The Polish Agrarian Reform Case
6 Electricity Company
V Conclusions
A Towards a Modern Law of Provisional Measures
B Revisiting Two Premises
3 Constitutive Instruments and Procedural Rules
I Introduction
II The International Court of Justice
A Succeeding the Permanent Court of International Justice
B Article 41 of the ICJ Statute
C Provisional Measures and the ICJ Rules
1 The 1946 and 1972 Rules
2 The 1978 Rules
III Dispute Settlement Under UNCLOS
A UNCLOS Part XV and the System of Compulsory Dispute Settlement
1 UNCLOS III and the Codification of the Law of the Sea
2 Dispute Settlement Architecture Under UNCLOS
B UNCLOS Article 290
C Provisional Measures and the Procedural Rules of UNCLOS Part XV Dispute Settlement Bodies
1 The International Tribunal for the Law of the Sea
2 Annex VII Arbitration
IV International Investment Arbitration
A Treaty-Based Investor-State Arbitration
1 Bilateral and Multilateral Investment Treaties
2 ICSID and the ICSID Convention
3 The ICSID Additional Facility
B Treaty Provisions Governing Provisional Measures in International Investment Law
1 Article 47 of the ICSID Convention
2 NAFTA Article 1137
C Provisional Measures Under the ICSID Rules and ICSID (AF) Rules
1 Rule 39 of the ICSID Rules
2 Article 46 of the ICSID (AF) Rules
V Arbitral Tribunals and the UNCITRAL Arbitration Rules
A Arbitration and International Dispute Settlement
1 The Permanent Court of Arbitration
2 International Claims and Compensation Bodies
3 Non-ICSID Investment Arbitration
B The UNCITRAL Arbitration Rules
1 Drafting and Proliferation
2 The 2010 Amendments
C Provisional Measures Under the UNCITRAL Rules
1 Article 26 of the 1976 Rules
2 Article 26 of the 2010 Rules
VI Other International Courts and Tribunals
A The European Court of Justice
B International Human Rights Regimes
C International Commercial Arbitration
Part II Provisional Measures in General
4 Power to Order Provisional Measures
I Introduction
II Provisional Measures as Incidental Proceedings
III Legal Source of the Power to Order Provisional Measures
A Provisional Measures as a General Principle of International Law
B Provisional Measures as an Inherent Power of International Courts and Tribunals
C Provisional Measures as an Express Mandate
D Contours and Preconditions: Provisional Measures as Lex Specialis
1 Fixed Minimum Features of the Power
2 Constitutive Instruments and Lex Specialis
IV Prima Facie Jurisdiction
A The International Court of Justice
1 Early Debates and Discarded Alternatives
2 Settled Practice of the International Court of Justice
B Dispute Settlement Under UNCLOS
1 UNCLOS Article 290(1)
2 UNCLOS Article 290(5)
C Inter-State Arbitration
D Investor-State Arbitration
V Prima Facie Admissibility
A Jurisdiction and Admissibility Distinguished
B Prima Facie Admissibility and the International Court of Justice
C Prima Facie Admissibility in Other International Courts and Tribunals
1 Dispute Settlement Under UNCLOS
2 Inter-State Arbitration
3 Investor-State Arbitration
VI Admissibility of the Application for Provisional Measures Proper
VII Conclusions
5 Purpose of Provisional Measures
I Introduction
II Measures for the Preservation of Rights Pendente Lite
A Different Forms of the Measure
B Defining a Right Pendente Lite
C Relationship Between Measures Requested and the Merits Proper
1 The International Court of Justice
2 Dispute Settlement Under UNCLOS
3 Inter-State Arbitration
4 Investor-State Arbitration
(a) ICSID Arbitration
(b) UNCITRAL Arbitration
D Plausibility of the Rights Claimed and the Prospect of Success on the Merits
1 The International Court of Justice
(a) Merits Review in the Separate and Dissenting Opinions of the ICJ: 1951-2006
(b) Further Development and Scope: 2009 Onwards
2 Dispute Settlement Under UNCLOS
3 Inter-State Arbitration
4 Investor-State Arbitration
III Measures for the Non-Aggravation of the Dispute
A Protection of the Objective Interest
B The International Court of Justice
1 A Separate Power?
2 Preconditions for the Award of Measures for Non-Aggravation
3 Scope and Effect of Measures for Non-Aggravation: The Border Area Case
C Dispute Settlement Under UNCLOS
D Inter-State Arbitration
E Investor-State Arbitration
1 ICSID Arbitration
2 UNCITRAL Arbitration
IV Conclusions
6 Prejudice and Urgency
I Introduction
II The International Court of Justice
A The Standard of ‘Irreparable’ Prejudice
B Questions of Urgency
1 Risk of Materialization Prior to the Date of Judgment
2 Representations by the Respondent: The Effect of Certain Documents and Data
III Dispute Settlement Under UNCLOS
A Prejudice Under UNCLOS Article 290
1 The Emergence of ‘Irreparable’ Prejudice
2 Serious Harm to the Marine Environment
B Urgency Under UNCLOS Article 290
1 General Considerations of Urgency
(a) Urgency Under UNCLOS Article 290(1)
(b) Urgency Under UNCLOS Article 290(5)
2 Risk of Materialization and the Effect of Undertakings
3 Measures for the Protection of the Marine Environment and the Precautionary Principle
IV Inter-State Arbitration
V Investor-State Arbitration
A Prejudice Before Investor-State Arbitration Tribunals
1 ICSID Arbitration
2 UNCITRAL Arbitration
B Urgency Before Investor-State Arbitration Tribunals
1 ICSID Arbitration
(a) General Considerations of Urgency
(b) Risk of Materialization and Axiomatic Urgency
2 UNCITRAL Arbitration
VI Conclusions
7 Content and Enforcement
I Introduction
II The Binding Character of Provisional Measures
A Early Debates Concerning the Permanent Court of International Justice and Beyond
1 Arguments Concerning Article 41 of the PCIJ and ICJ Statute
2 Arguments Concerning the Binding Character of Provisional Measures as a General Principle of Law
3 Practice of the International Court of Justice Prior to LaGrand: Anglo-Iranian Oil and Bosnian Genocide
4 The Practice of Other Courts and Tribunals
(a) Dispute Settlement Under UNCLOS
(b) Investor-State Arbitration
(i) ICSID Arbitration
(ii) UNCITRAL Arbitration
B LaGrand and Its Discontents
1 Background
2 The Proceedings in LaGrand
(a) The Pleadings
(b) The Judgment
(c) Dissenting Opinions
C The New Status Quo
III Content of Provisional Measures
A Content of Provisional Measures Generally
1 Measures for the Protection of Substantive or Procedural Rights
2 Interim Judgments and Final Resolution of the Dispute
B Proportionality in Provisional Measures
1 Proportionality in Investor-State Arbitration
2 Proportionality Before Other International Courts or Tribunals
3 Proportionality and Custody of Persons or Moveable Property
C Duration of Provisional Measures
1 The International Court of Justice
2 Dispute Settlement Under UNCLOS
3 Inter-State Arbitration
4 Investor-State Arbitration
IV Breach and Enforcement of Provisional Measures
A Legal Consequences of Non-Compliance and Questions of Applicable Law
1 Application of the Law of State Responsibility to Provisional Measures
(a) Attribution
(b) Breach and Defences
(c) Invocation of Responsibility
2 Individual and Corporate Liability for Breach of Provisional Measures
B Enforcement of Provisional Measures
1 The International Court of Justice
2 Dispute Settlement Under UNCLOS
3 Investor-State Arbitration
(a) ICSID Arbitration
(b) UNCITRAL Arbitration
V Conclusions
Part III Specific Aspects of Provisional Measures
8 Questions of Substance and Procedure
I Introduction
II Provisional Measures and Questions of Substance
A Human Rights and Humanitarian Law
1 Cases in Which Humanitarian or Human Rights Law is the Subject of the Main Claim
2 Cases of Diplomatic Protection
3 Cases in Which the Link is Attenuated or Broken
4 Understanding the Practice
B Parallel Seisin of the International Court of Justice and UN Security Council
1 Interaction between the International Court of Justice and UN Security Council
2 Conflict Between Provisional Measures of the International Court of Justice and UN Security Council Resolutions
C Proceedings Before Other Courts and Tribunals
1 Domestic Civil Proceedings
(a) Identity of Parties
(b) Identity of Subject Matter
(c) Limitations to the Restraint of Domestic Civil Proceedings
2 Domestic Criminal Proceedings
3 Other International Proceedings
D Integarated Dispute Settlement
1 Integrated Approaches to International Dispute Settlement
2 Provisional Measures and Integrated International Dispute Settlement
(a) UNCLOS Article 290 and Provisional Measures for the Protection of the Marine Environment
(b) The International Court of Justice and Third Party Regulation of the Parties’ Behaviour
III Provisional Measures and Questions of Procedure
A Advisory Proceedings
1 Scope of the Advisory Jurisdiction
2 Provisional Measures and Advisory Proceedings
B Non-Appearing Parties
1 The Practice of Non-Appearance
2 Provisional Measures and Non-Appearing Parties
(a) General Practice
(b) The Errors of Arctic Sunrise
C Interpretation Proceedings
1 Interpretation of Judgments and Awards
2 Provisional Measures and Interpretation Proceedings
D ICSID Annulment Proceedings
1 The ICSID Annulment Mechanism
2 Provisional Measures in ICSID Annulment Proceedings
E Modification or Revocation of Provisional Measures
1 Procedures of Modification or Revocation
2 Justifying Modification or Revocation
9 Litigation Strategy and Provisional Measures
I Introduction
II Different Purposes of Provisional Measures
A Provisional Measures and the Future Conduct of Litigation
1 The International Court of Justice
2 Dispute Settlement Under UNCLOS
3 Inter-State Arbitration
4 Investor-State Arbitration
B Provisional Measures and Reputational Risks
1 Reputation and International Dispute Settlement
2 Benefits of Seeking Provisional Measures Notwithstanding Risk of Non-Compliance
3 Risks of Seeking Provisional Measures
C Provisional Measures as the Real Objective of Contested Proceedings
1 Time-Sensitive Situations
2 Custody of Persons or Moveable Property
D The ‘Proceed at Own Risk’ Principle
III Use and Abuse of Provisional Measures
A Abuse of Process in International Law
B Provisional Measures as an Abuse of Process
IV Conclusions
10 Conclusions
Appendix
Bibliography
Index