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Every legal system contains a rule or principle as to the binding force of judgments. The salience of such a rule is found not in its existence, but in its scope and the extent to which it enables, constrains, or otherwise shapes judicial decision-making. In this piece, some reflections on the doctrine of precedent as understood by the icj will be laid out, both with respect to its potential law-making role and the theory of argumentation evinced by it. The core argument laid out here is that systematic reliance on previous decisions is not merely some form of judicial law-making, but a strategy of legitimation through which the Court puts forward its own claim to systemic authority. With a particular focus on the Court's 2022 judgment on preliminary objections in the dispute between The Gambia and Myanmar in relation to the application of the Genocide Convention, some reflections on the nature of precedent-based reasoning and its consequences for the icj, and for the international legal system, will be advanced. [ABSTRACT FROM AUTHOR]

The ICC represents a legal laboratory that is still consolidating itself, with multiple unclarities in evidence and procedural law requiring resolution through jurisprudence. Our paper draws on interaction analysis to unpack this process, focusing on the jurisprudential construction of 'dual status' victim participant testimony. To elucidate how this evidentiary/procedural element is locally negotiated, we examine an excerpt from the Ongwen hearing transcripts, in which the defense objects against the testimony by a dual status witness called by the victim participants' legal representative. The analysis traces how the defense counsel's objection is anchored in a trajectory of prior decisions, and demonstrates that the implementation of the criteria drawn from these decisions is mediated by deep-rooted common-sense assumptions about the 'ownership' of testimony. These unspoken assumptions open up a discursive space in which trial actors can discuss the interactional quality of testimony, which adds an element of contingency to the final decision. [ABSTRACT FROM AUTHOR]

One of the reasons adduced by the U.S. for paralyzing the WTO Appellate Body (AB) through the non-replacement of its outgoing members has been that the AB has developed a doctrine of binding precedent based on its previous decisions, thus allegedly departing from what had been agreed in the original negotiations. This article, based also on the author's past experience as a member of the AB, intends to show that this criticism is groundless. The AB has not followed such a doctrine but has developed a consistent interpretation of the multilateral trade agreements in accordance with the WTO objectives of promoting stability and predictability of the system. The AB statement that past interpretation of the WTO agreements provisions should be followed by Panels "absent cogent reasons" is in line with the practice of other international courts and tribunals. [ABSTRACT FROM AUTHOR]

Correctness of arbitral awards is a central concern in current multilateral efforts to reform investor-state dispute settlement (ISDS). Aside from protecting the disputing parties from mistakes by tribunals (retrospective correctness), corrective review also guides future interpreters not to repeat past mistakes (prospective correctness). This article assesses how effective the three existing ISDS correction mechanisms – (1) review by annulment committees or domestic courts, (2) review by the contracting parties, and (3) review by subsequent tribunals – are in promoting such prospective correctness. After assessing existing practice, the article finds that wrong decisions "don't die". Annulled or set-aside awards continue to be cited, contracting states' authoritative interpretations are disregarded, and subsequent tribunals do not converge around a jurisprudence constante. This failure of corrective mechanisms to achieve prospective correctness is due to lacking legal constraints, incentives to use favorable awards even if they have been invalidated, and the simple difficulty in telling whether an award still represents "correct" law in ISDS. The article concludes by proposing possible reforms to improve prospective correctness from the shepardization of awards, to rules on precedent, and broader institutional reform. [ABSTRACT FROM AUTHOR]

The United States criticizes the Appellate Body for 'making law' by interpreting and applying the World Trade Organization (WTO) agreements in disregard of the intention of WTO members. The criticism of the United States is not without legitimate basis in that Members have few tools with which they may weigh in on the interpretation of the WTO agreements, even if the Appellate Body makes an erroneous interpretation. As much as the Appellate Body's contribution to the security and predictability of the multilateral trading system warrants praise, the dysfunction of legislative and political mechanisms to counterbalance the growing de facto 'authority' of the Appellate Body should be a cause for concern. Against this background, this article proposes a new mechanism that would allow Members to disagree with interpretations by the Appellate Body and pronounce their own interpretations of the WTO agreements. The mechanism would be built upon 'interpretative declarations.' [ABSTRACT FROM AUTHOR]

In 1869, the British allowed Muslims to sit as judges on the High Court. This article explores the legal opinions of the first Muslim judge to be appointed to the High Court, Syed Mahmood. Straddling two competing worlds – that of Cambridge University and that of his native India – Justice Mahmood both legitimated and resisted colonial judicial power. In this essay I will demonstrate how British judges interpreted points of Islamic law within an English legal framework, and how these interpretations contradicted their translated texts of Islamic law, yet became the foundation of legal precedents established through the doctrine of stare decisis. Despite participating within the British colonial judiciary, Mahmood challenged these precedents, demonstrating his ability to navigate the paradoxes of colonial power to secure for himself a legitimate platform from which he could argue his juridical interventions. The efficacy of these challenges, however, ultimately was restrained by the institutions and structures of the colonial jural project. [ABSTRACT FROM AUTHOR]

This article considers the growing influence that de facto precedent, in the form of jurisprudence constante, has on the duties and interpretive powers of investor-state arbitration tribunals. Specifically, a review of case law from the past decade establishes that tribunals are consistently and coherently recognizing a delimitation between the “jurisdiction” of a tribunal and the “admissibility” of a claim, and the practical effect of those two individual concepts. This has therefore created a jurisprudence constante that, in appropriate circumstances, should be followed by investor-state arbitration tribunals. [ABSTRACT FROM AUTHOR]

This article reviews two critical “tipping point” moments in the evolution of international economic law, so-called given the overwhelming response by the international economic law community in each instance suggesting that the moment ought not be repeated as it called into question foundational tenets of the dispute resolution system. In each instance, an adjudicator was dismissed on the basis of his past decision-making, bringing into sharper focus questions about the mandate of the adjudicator and the checks and balances in relation to the adjudicatory role. This article surveys the availability of ethical or other doctrines to guide arbitrators in this respect and calls for change in the interest of preserving the legitimacy of the international economic law adjudicatory systems. [ABSTRACT FROM AUTHOR]

Judicial decisions are explicitly mentioned in Article 38 of the Statute of the International Court of Justice (ICJ) as "a subsidiary means for the determination of rules of law". Doctrine and judicial decisions are then usually categorised as subsidiary or material sources. Despite the absence of any mle on binding precedent in international law generally, references to previous cases of both the Permanent Court of International Justice and the ICJ, and increasingly also case law from other courts and tribunals, in the decisions of the ICJ and the International Tribunal for the Law of the Sea (ITLOS) are a widespread phenomenon. This article aims at mapping out and critically evaluating the practice of both the ICJ and ITLOS in using and relying on their own previous case law or external case law of other international courts and tribunals. I will first identify the conventional principles applicable to judicial and arbitral decisions as "sources" of international law. I will next map the practice of the ICJ by investigating the ways in which the ICJ has used its previous decisions, as well as those of its predecessor, and that of other international courts and tribunals. Finally, I will discuss and analyse the practice of the ITLOS. [ABSTRACT FROM AUTHOR]

Fed up with the decades-old violence plaguing the DRC, the UN Security Council broke new ground by granting peacekeepers an offensive mandate to pursue rebels rather than waiting to react in self-defence. This transformation in UN military operations alarmed several States, concerned over a perceived loss of sovereignty and a weakening of the principle of non-intervention. To allay these fears, Resolution 2098's drafters incorporated a provision expressly assuring Member States that offensive peacekeeping tactics in the DRC would not generate precedent for future UN action. However, examining past UN practice and 'slippery slope' theory alike reveals that explicit disavowal of precedent cannot guarantee that offensive peacekeeping will not be used as a template for future UN action. In fact, the incorporation of such language may foster the generation of a slippery slope in UN peacekeeping, ultimately paving the way for increased scope of UN intervention in situations of gross human rights violations. The article concludes by proposing a framework for how actors can manipulate slopes to generate or slow precedent for future UN action. [ABSTRACT FROM AUTHOR]

The use of internal and external precedent has been studied in relation to numerous international courts and tribunals. The participation of investment treaty tribunals in judicial dialogues or judicial cross-fertilization, by contrast, has remained underexplored. The present article closes this gap and analyses both the use of internal and external precedent by investment tribunals and the way other courts and tribunals, both international and domestic, engage with investment treaty jurisprudence. We argue that investment tribunals, after having used internal and external precedent to consolidate international investment law as a uniform legal regime and embed it in the fabric of international law, have generated a body of investment treaty jurisprudence that other courts and tribunals are now starting to use as an authoritative source for the determination of rules of general international law. In contributing to the development of general international law, investment treaty tribunals are slowly but steadily moving mainstream, from the periphery of international dispute settlement towards its center. [ABSTRACT FROM AUTHOR]

This article examines the notion of ‘persuasive value’ of external precedent in the context of international criminal law. It finds that, in a number of cases, individual judges have appeared to assess the relevance and persuasive value of the same judicial decision differently and suggests that an assessment of this notion may be contingent on the specific circumstances of the case, including the individual approaches of judges. The article proceeds to flesh out some extrinsic and intrinsic elements of this notion. With respect to the former, these include: (1) the specific attitudes of individual judges; (2) the authority of the forum, including the generalist or specialist character of the court and the potential role of judicial networks; (3) the effect of successive citations; and (4) the potentially uneven playing field of citations. With respect to the latter, these may include: (1) the nature of the law being applied and the consonance of the findings with the applicable law; and (2) the quality of the reasoning. While there potentially may be a link between the quality of reasoning of a given decision and an assessment of its persuasive value, this may depend on the circumstances of the case and, in particular, on the approaches of the individual judges, who may accord differing weight to the elements involved in the equation. Thus, the article concludes that, ultimately, any assessment of the notion of persuasive value may have to remain contingent and incomplete. [ABSTRACT FROM AUTHOR]

When faced with judicial decisions from other courts and tribunals which may appear to contradict their findings, international judges could, inter alia, potentially simply omit to take cognizance of such decisions or they could seek to distinguish or depart from them. In the context of international criminal courts and tribunals, this article examines cases in which judges have sought to distinguish or depart from external judicial decisions. It considers the assessment of relevance and suggests that the formulation of any a priori rules of relevance may not be feasible. The research came across relatively few instances of explicit departures from external judicial decisions. From a brief review of the literature, some potential explanations for which a conciliatory, rather than a competitive, approach may be preferred could include: (a) respect for the principle of comity and (b) a concern with the coherence of international law. [ABSTRACT FROM AUTHOR]

This article examines the notion of 'persuasive value' of external precedent in the context of international criminal law. It finds that, in a number of cases, individual judges have appeared to assess the relevance and persuasive value of the same judicial decision differently and suggests that an assessment of this notion may be contingent on the specific circumstances of the case, including the individual approaches of judges. The article proceeds to flesh out some extrinsic and intrinsic elements of this notion. With respect to the former, these include: (1) the specific attitudes of individual judges; (2) the authority of the fomm, including the generalist or specialist character of the court and the potential role of judicial networks; (3) the effect of successive citations; and (4) the potentially uneven playing field of citations. With respect to the latter, these may include: (1) the nature of the law being applied and the consonance of the findings with the applicable law; and (2) the quality of the reasoning. While there potentially may be a link between the quality of reasoning of a given decision and an assessment of its persuasive value, this may depend on the circumstances of the case and, in particular, on the approaches of the individual judges, who may accord differing weight to the elements involved in the equation. Thus, the article concludes that, ultimately, any assessment of the notion of persuasive value may have to remain contingent and incomplete. [ABSTRACT FROM AUTHOR]

General principles of law are a valid source of law for arbitral tribunals. The Vienna Convention1 allows recourse to general principles of law. In Bilateral Investment Treaty (hereinafter "BIT") interpretation but also in International Commercial Arbitration ("hereinafter IIA"), International Investment Arbitration ("hereinafter "IIA"), arbitrators can be guided by the Vienna Convention2 and in so doing may refer to a number of 'rules' and norms of international law' applicable to the relations between states, such as those mentioned herein including principles drawn from the lex mercatoria or other types of international customary law, e.g. the principle of pacta sunt servanda, which honours contracts between states and investors, as well as the principle of precedent. Additionally, they may refer to customary norms from other jurisdictions that can harmonise with Western law. [ABSTRACT FROM AUTHOR]

Russia is currently undergoing a spirited public debate over the role of precedent in a civil-law system. This article examines this debate from a theoretical and practical standpoint, exploring the nature of Russian court decisions and the extent to which they correspond to the Anglo-American theory of precedent. The article further analyzes how the Russian Higher Arbitrazh Court has carved out a narrow right to issue binding precedent and how this authority could impact Russia's civil-law understanding of such concepts as separation of powers and judicial independence. [ABSTRACT FROM AUTHOR]

Abstract This paper argues that not only does history matter to legal epistemology, but also that understanding legal epistemology can yield a certain understanding of the past. The paper focuses on the common law practice of precedent and argues that there is no set of rules, principles, reasons or material facts that constitute the fixed or foundational content of past decisions (a 'timeless what' that determines its own relevance), but rather that what is taken by a judge resolving a particular dispute to be the content of past decisions depends on the active and creative construal of relevance engaged in by that judge. Precedents are better thought of as 'thick resources with dynamic content'. Such content is constrained by a variety of stabilising practices, but never so constrained as to determine how it can be construed to be relevant. This image of law's past may offer a general view of the past as something with which we can actively and creatively relate in the course of coping with the present. [ABSTRACT FROM AUTHOR]

There has been much discussion recently, both in academic and practitioner circles, about inconsistency in international arbitration. The debate has concentrated on specific topics such as contradictory arbitral awards, the precedential value of arbitral awards, the creation of an appeal system, or the need for increased transparency. The present study argues that such debate has overlooked the fact that some, and perhaps most, of the perceived problems are a reflection of the underlying values that make international arbitration appealing to international economic actors. Specifically, the authors argue that instead of concentrating on far-reaching reforms, commentators should focus on refining currently existing techniques to deal with conflicting decisions in international arbitration. [ABSTRACT FROM AUTHOR]