(5) General Principles of Procedural Law
res judicata, estoppel,…
(5) General Principles of Procedural Law
- res judicata, estoppel, professional privilege [cts can do when they apply inherent powers]
- Consider: What are the sources of these principles; what is the extent to which they are shared across different systems; what is their importance; and what is the nature of their interaction with other sources?
- Where do cts draw the rule of resjud / estoppel / prof privi from? In most of the cases, the court will say it is taken from [XYZ].
How do these principles interact with ICJ / ICSID convention?
- intl procedural law relies on E
President Basdevant, Dictionnaire de la terminologie du droit international (1960)
- ‘procedural term taken from the Anglo-Saxon language which designates the peremptory objection which prevents one party to a proceeding from adopting a position which contradicts a position already taken expressly or tacitly’: p 263; translated here.
- estoppel as a proced principle of ITL.
- no mention here of detrimental reliance. If one party has taken one position (ie agreed to a line of argument during the course of litigation), this party is estopped from taking another position during the case
[ESTOPPEL IN ACTION]
- In Agility v P: if P had expressly/tacitly agreed to Agility's on jurisdiction of tribunal, then P would have been estopped from taking an opposite view.
- There need not be any kind of (detrimental) reliance in IDS before you are estopped from doing something in a proceeding [in a ct or tribunal].
- broader rule, easier to rely on than the traditional private law version of the rule.
- (King of Spain ICJ 1960): ‘In the judgment of the Court, Nicaragua, by express declaration and by conduct, recognized the Award as valid and it is no longer open to Nicaragua to go back upon [‘il n’est plus en droit de revenir’] that recognition and to challenge the validity of the Award. Nicaragua’s failure to raise any question with regard to the validity of the Award for several years after the full terms of the Award had become known to it further confirms the conclusion at which the Court has arrived.:’ p. 213.
- Estoppel: cannot go back on representation made.
- UK law: detrimental reliance must be present before someone is estopped from doing something.
- international law has adopted from domestic law. See: A38 ICJ statute: sets out sources of international law. E is known as "a general principle of law".
- BUT international law is more than uk law. In continental law, there is a strong sense of "good faith" that is not (really) present in UK contract law.
# 1 res judicata
- As a rule, where ct/tribunal have already made a decision on the matter, it stops parties from bringing up the same question again.
- Res judicata = A thing that has alr been adjudicated by the court
consider its purpose: protection of legal certainty
- Protection of legal certainty. If you decide to reopen the case, countries that act up on the law would have to change / bring more litigation. "it is to the interest of the public that there should be an end to litigation by the parties over a subject fully and fairly adjudicated" - in La Campana Development Corp. v. Development Bank of the Philippines, (2009)
- "chose jugee"
Bosnian Genocide (Bosnia and Herzegovina v Serbia and Montenegro) ICJ Rep 2007 p 43
- ‘That principle signifies that the decisions of the Court are not only binding on the parties, but are final, in the sense that they cannot be reopened by the parties as regards the issues that have been determined, save by procedures, of an exceptional nature, specially laid down for that purpose.’: para 115.
- could decision that was already made could be reargued at a later stage (p 115)? "that principle = res judicata". Ct stresses at the decision of the court is final [wrt issues that have been determined].
- contrast Agility: the tribunal merely dealt w the question by a sidewind, and the case was not covered by the principle of res judicata.
- ‘Two purposes, one general, the other specific, underlie the principle of res judicata, internationally as nationally. First, the stability of legal relations requires that litigation come to an end. The Court’s function, according to Article 38 of its Statute, is to “decide”, that is, to bring to an end, “such disputes as are submitted to it”. Secondly, it is in the interest of each party that an issue which has already been adjudicated in favour of that party be not argued again. … Depriving a litigant of the benefit of a judgment it has already obtained must in general be seen as a breach of the principles governing the legal settlement of disputes.’: para 116.
Agility v Pakistan [ICSID case]
There was a hearing on Jurisdiction and Admissibility
[AT JURISDICTION STAGE]
[at MERITS STAGE]
- 'does ct have jurisdiction of investment dispute?' tribunal said that they had (without listening to anything) because of
- (1) BILATERAL INVESTMENT TREATY (BIT) between kuwait and pakistan.
- (2) kuwait and paki were members of ICSID convention
- Pakistan changed lawyers -> to an international lawyer. QC. "is pakistan sure pakistan ratified the BIT that the tribunal said it has founded its jurisdiction on?" Pakistan then wants to reopen the issue if ct really had jurisdiction.
Agility argued "the question is already res judicata" as it has already been decided and cannot be reopened at a later stage.
inherent jurisdiction = inherent powers
- Inherent powers of intl cts and tribunals deals w competences [of the cts and tribunals]
- Supposed to maintain powers of their own judicial character (nuclear weapons) i.e. they should be able to shut down a case
- Judge Cott: fundamental requirements of good administration of justice -> inherent powers suggests cts/tribs can do the necessary to uphold fundamental administration of justice