Equality of Arms in International Dispute Settlement

Raymundo Tullio Treves

doi:10.5771/9783689002497

Summary

This book defines the scope and content of the general principle of equality of arms: it identifies the rights and obligations of the parties and the powers and duties of the tribunals or courts deriving from the principle. It defines equality of arms in the light of the case-law of the ECtHR. It then analyses the principle in proceedings before the ICJ, ITLOS, international investment arbitration and international commercial arbitration. The book is structured according to the steps of international adjudication, analysed through the prism of equality of arms. Equality of arms is also analysed as a principle aimed at redressing inequality of resources between the parties, for example through funding mechanisms and security for costs.

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Bibliographic data

Copyright year: 2025
ISBN-Print: 978-3-68900-248-0
ISBN-Online: 978-3-68900-249-7
Publisher: Tectum, Baden-Baden
Series: Wissenschaftliche Beiträge aus dem Tectum Verlag: Rechtswissenschaft
Volume: 247
Language: English
Pages: 700
Product type: Book Titles

Titelei/Inhaltsverzeichnis No access Pages 1 - 24
1. 1. Section I Familiarity, vagueness and confusion No access
  2. Section II Absence in rules and statutes, evidence in pleadings and decisions No access
  3. Section III Research goals, methodology and scope No access
  4. Section IV Equality of arms and near concepts No access
2. 1. 1. 1. Equality of Arms as part of the right to a fair trial No access
    2. 2. Proceedings that must guarantee a fair trial and thus respect equality of arms No access
    3. 3. Definition of equality of arms No access
    4. 4. The implementation of the definition by the ECtHR: (i) equality of arms and the right to an adversarial proceeding No access
    5. 1. a. Equality of arms as a procedural guarantee – Cases regarding court appointed experts No access
      2. b. Equality of arms as a procedural guarantee – Cases regarding access to the case file No access
      3. c. Equality of arms as a procedural guarantee – Cases regarding the taking of and the examination of evidence No access
      4. d. Equality of arms as a substantive guarantee No access
    6. 6. The implementation of the definition by the ECtHR: (iii) Equality of arms and the concept of ‘party’ No access
    7. 7. Types of review by the ECtHR: reviewing the legitimacy of a law; reviewing the conduct of a party; reviewing the discretion of the national courts in conducting the procedure No access
    8. 8. Equality of arms: between a strict standard and the temptation of appearances – the appeal to a higher sense of justice No access
  2. Section II Waffengleichheit in German Civil Procedure No access
  3. Section III Conclusion No access
1. 1. 1. 1. Equality of arms and jurisdiction ratione paersonae of the ICJ No access
    2. 2. ‘Party’ status – non-appearance and intervention in ICJ proceedings No access
    3. 3. ‘Party’ status in ICJ Advisory Opinion cases No access
    4. 4. Parties before the ITLOS No access
  2. 1. 1. Jurisdiction ratione personae – the capacity of entering into an arbitration agreement No access
    2. 2. Equality of the parties in international commercial arbitrations No access
    3. 3. ‘Party’ status – default, intervention, joinder and consolidation No access
  3. 1. 1. Inequality of the parties in international investment arbitration No access
    2. 2. Jurisdiction ratione personae No access
    3. 3. ‘Party’ status – intervention and non-participating Party No access
2. 1. Section I Initiation of a case as an arm No access
  2. Section II Equality of arms in the principle of consent No access
  3. 1. 1. Mutuality No access
    2. 2. Reciprocity No access
  4. Section IV Equality of arms in the compulsory jurisdiction system of UNCLOS No access
  5. 1. 1. “Bilateral” arbitration agreements No access
    2. 1. a. Russkaya Telephonnaya Kompaniya v. Sony Ericsson Mobile Communications Rus LLC No access
      2. b. Rothschild v. Mme X No access
      3. c. Pittalis v. Sherefettin No access
      4. d. NB Three Shipping v. Harebell Shipping No access
      5. e. Debenture Trust v. Elektrim Finance and others No access
  6. 1. 1. The difficulty for a State to bring a claim or a counterclaim No access
    2. 2. The investor’s right to unilaterally bring a claim as required by equality of arms No access
3. 1. Section I Appointing ad hoc judges and arbitrators as an arm No access
  2. Section II Equality of arms and the appointment of ad hoc judges No access
  3. Section III Equality of arms and party-appointed arbitrators No access
  4. 1. 1. Multiparty ICJ cases No access
    2. 2. The ITLOS Rules on ad hoc judges when the EU is a party No access
    3. 3. Multiparty arbitration cases No access
  5. Section V Equality of arms and the impartiality of judges and arbitrators – The Croatia/Slovenia arbitration example No access
4. 1. Section I The arms at the disposal of the parties during the proceedings No access
  2. Section II Equality of arms and the power of the Court and Tribunals to conduct the proceedings No access
  3. 1. 1. Equal treatment of the parties No access
    2. 2. Parties must be granted an opportunity to present their case No access
    3. 1. a. The “two hats” worn by the State in investment treaty arbitration No access
      2. b. Selected issues regarding the taking of evidence No access
      3. c. The determination of the standard of privilege No access
    4. 4. Ensuring cost effective and expeditious proceedings – guaranteeing the parties a reasonable and relatively equal opportunity of presenting their case No access
    5. 5. Guaranteeing the parties a reasonable and relatively equal opportunity of presenting their case is the core content of equality of arms No access
    6. 6. Remedies in case of violations by arbitral tribunals of the duty of guaranteeing equality of arms No access
  4. 1. 1. Equal treatment of the parties No access
    2. 2. Parties must be granted an opportunity to present their case No access
    3. 3. Ensuring a cost effective and expeditious proceeding – guaranteeing the parties a reasonable and relatively equal opportunity of presenting their case No access
    4. 4. The exemplary saga of the “Appeals” against judgments of International Administrative Tribunals No access
  5. Section V Equality of arms and the timing for raising jurisdictional objections No access
  6. 1. 1. Sources of the duty of the parties to participate in the proceedings in good faith No access
    2. 1. a. The Qatar v. Bahrain ICJ Case – Forged Documents No access
      2. b. The Croatia v. Serbia ICJ Case – Intimidation of Witnesses No access
      3. c. The M/V Louisa ITLOS Case – Withholding a fundamental Document No access
      4. d. Methanex v. USA NAFTA Arbitration – Documents obtained Illegally No access
      5. e. Pope & Talbot v. Canada NAFTA Arbitration – Refusal to disclose Documents No access
      6. i. Libananco v. Turkey No access
        ii. Caratube v. Kazakhstan (Caratube I) No access
        iii. Quiborax v. Bolivia No access
        iv. Caratube v. Kazakhstan (Caratube II) No access
        v. Lao Hodings v. Laos No access
        vi. Churchill Mining v. Indonesia No access
        vii. Teinver v. Argentina No access
        viii. Timor Leste v. Australia (Provisional Measures ordered by the ICJ) No access
        ix. Conclusion No access
      7. g. Conclusion No access
  7. 1. 1. Non-appearance as an arm No access
    2. 2. Procedural rules on non-appearance and the aim of maintaining equality of arms No access
    3. 3. Risks of violating equality of arms while complying with the procedural rules on non-appearance No access
    4. 4. Conclusion No access
5. 1. Section I Resources as arms No access
  2. 1. 1. a. The Secretary-General’s Trust Fund to Assist States in the Settlement of Disputes through the International Court of Justice No access
      2. b. The Permanent Court of Arbitration Financial Assistance Fund for Settlement of International Disputes No access
      3. c. International Tribunal for the Law of the Sea Trust Fund No access
    2. 2. Pro Bono No access
    3. 3. Third Party Funding No access
  3. Section III Powers of the Court or Tribunal to level the playing field when no funding mechanism is available No access
  4. Section IV Allocation of costs in ICJ and ITLOS proceedings as evidence of equality of arms No access
  5. 1. 1. Payment of advance on costs – an equal responsibility bestowed on all the parties to the proceedings No access
    2. 2. Rules on the final apportionment of costs in the award – a final opportunity to level the playing field No access
    3. 3. Rules tackling default by one party in the payment of advance on costs and equality of arms No access
    4. 1. a. Seeking an award or order requesting the non-paying party to pay or reimburse its share of advance on costs No access
      2. b. Arguing that impecuniosity and the consequent inability of paying the advance on costs has rendered inapplicable or inoperable the arbitration agreement No access
      3. c. Requesting a national court to order the arbitral tribunal and institution to reinstate the arbitration and the arbitral tribunal to decide on the merits No access
      4. d. Seeking to set aside an award that did not address certain claims because the advance on cost pertaining to such claims had not been paid No access
      5. e. Techniques for arbitral tribunals and institutions to conduct a case with an impecunious party and avoid dismissing the case No access
  6. 1. 1. 2. Granting security for costs and guaranteeing equality of arms No access
      2. a. A decision on security for costs presupposes the “costs follow the event” rule on final apportionment of costs No access
      3. b. The power of the tribunal to order security for costs No access
      4. c. A prima facie case on the merits No access
      5. d. Proving a risk of irreparable harm and urgency – proving exceptional circumstances or a fundamental change in circumstances No access
      6. e. The role played by the presence of third-party funders in qualifying impecuniosity as “exceptional circumstances” No access
      7. f. Proving proportionality No access
1. 1. Section I Equality of arms as a general principle of law recognized by civilized nations No access
  2. Section II The emergence of international procedural law: a product of crosspollination due to the multiplication of international courts and tribunals No access
  3. Section III Equality of arms as a general principle of international procedural law No access
2. 1. Section I Equality of Arms as a source of powers of the Court or Tribunals No access
  2. Section II Equality of arms as a source of rights and duties of the Parties No access
3. 1. Section I Remedy: levelling the playing field during the course of the proceedings No access
  2. Section II Sanctions at the end of the proceedings: between ex-post levelling of the playing field and sanctioning misconduct No access
  3. Section III Extrema Ratio: Damages for breach of duty to maintain equality of arms, annulment, non-enforcement and regulatory action No access
  4. Section IV Six steps for arguing a violation of equality of arms No access
  5. 1. 1. The issue No access
    2. 1. a. First Step: Identifying the arm No access
      2. b. Second Step: Identifying the unbalance No access
      3. c. Third Step: Identifying the source causing the unbalancing effect on the arm No access
      4. d. Fourth Step: Identifying the effect and consequence of the inequality of arms No access
      5. e. Fifth Step: Identifying the actual disadvantage No access
      6. f. Sixth Step: Identifying the remedies that should be applied No access
Abstract in German No access Pages 653 - 662
Table of Cases No access Pages 663 - 682
List of Abbreviations No access Pages 683 - 684
Bibliography No access Pages 685 - 700