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In this article, the author examines the codification of soft law in arbitration and its consequences. In her analysis, the author discusses the identity of the actors creating such ‘soft codes’, the causes of this codification and the constraining power of the resulting ‘soft normativity’. She further entertains the questions whether soft codes lead to a loss of flexibility and a lack of democratic legitimacy. These themes are illustrated by reference to the International Bar Association (IBA) Rules on Evidence, the IBA Guidelines on Conflicts of Interest, the United Nations Commission on International Trade Law Model Law and the International Chamber of Commerce Arbitration Rules. [ABSTRACT FROM PUBLISHER]

The recent growth of international dispute resolution has led to a reinforcement of the intersection between private and public international law. The International Court of Justice is no stranger to this phenomenon. In reality, several disputes that have been or will be resolved by the International Court of Justice involve individuals or show aspects of private international law. The recently initiated case regarding jurisdiction and enforcement of judgments in civil and commercial matters, opposing Belgium to Switzerland, illustrates this evolution in the nature of the Court’s case load. This article examines, on an empirical basis, what has been so far the World Court’s approach to issues of private international law. It further argues that the Court, as the principal judicial organ of the United Nations, has a role to play in the development of private international law. [ABSTRACT FROM PUBLISHER]

Starting from the experience of the so-called Abyei Arbitration—which concerned Sudan’s highly political and emotive situation of the delimitation of the country’s oil-rich Abyei region—the authors discuss the appropriateness of arbitration to resolve deeply rooted conflicts between political factions and/or states and peoples. After having pondered the opportunities and limitations presented by arbitration for such disputes, and considered the record of implementations of awards, the authors conclude that arbitration can and does serve as a useful dispute resolution method. But a caveat is entered: if the integrity of the arbitral process and the rule of law is to be upheld, the understanding of the role of the arbitral tribunal needs to be given particular attention. [ABSTRACT FROM PUBLISHER]

In the relatively short time since the Kyoto Protocol’s entry into force, many types of disputes have arisen which have resulted in the commencement of a variety of dispute settlement proceedings. In addition to the international adjudicatory bodies charged with deciding disputes arising under the Kyoto regime, domestic courts and tribunals have also found themselves seized of such litigation. The purpose of this article is to survey the complex terrain of climate change litigation, and review the experience that States and non-State entities have had to date with the settlement of disputes arising under, and out of, the Kyoto Protocol. These include inter-State disputes, mixed disputes and private disputes. We have reasonably good knowledge of the international and mixed disputes that have arisen, but in contrast, comparatively little is known about the number of private disputes that have occurred, although the complexity and novelty of transactions under the Kyoto Protocol’s flexibility mechanisms, combined with fact that such transactions are subject to national regulation and international oversight, means that such disputes are likely to arise. In sum, experience to date indicates that the many methods of settling the range of disputes are being used effectively, and it is important for the future of the climate change regime that this multi-layered approach to dispute settlement is maintained. [ABSTRACT FROM PUBLISHER]

In this article, Emmanuel Gaillard discusses the competing mental constructs that allow an understanding of international arbitration as a coherent phenomenon. The author identifies three such mental constructs, or representations, each of which sheds light on the entire law and practice of arbitration, and captures the underlying beliefs of the different schools of thought in the field. The three representations approach the fundamental question of the source of validity and legitimacy of the arbitral process through the prism, respectively, of the legal order of the seat of the arbitration, the different legal orders that are willing to recognize the award resulting from the arbitral process, or a distinct transnational legal order—which the author characterizes as the arbitral legal order. Each of these philosophies of international arbitration lead to distinct branding, imaging, vocabulary, and concrete conduct of all players in the field, be it practitioners, arbitrators or courts. With the study of these three representations and their consequences, as well as their foundation in cognitive sciences, Emmanuel Gaillard delivers one of the first general scientific accounts of international arbitration. [ABSTRACT FROM PUBLISHER]

When should the United Nations, the United States or the European Union intervene in foreign conflicts? Should they intervene at all or would another entity be in a better position to do so? These are some of the underlying questions of this article, in which the authors discuss concrete ways to prevent destructive conflicts, typically international armed conflicts. They put forward a pragmatic framework, called the Prevention Principle, to recognize and prevent destructive conflict at the earliest possible time at the lowest legitimate level. The authors set out the nature of destructive conflicts, explain how early intervention should occur, and propose a model to identify the most appropriate and effective intervener. [ABSTRACT FROM PUBLISHER]