Sources of Inherent Powers in International Adjudication

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SOURCES OF INHERENT POWERS Andrea K. Bjorklund and Jonathan Brosseau1 5 December 2017 INTRODUCTION ............................................................................................................................... 2 I. DEFINING INHERENT POWERS: EXERCISING, OR EXCEEDING, AN ADJUDICATIVE BODY’S FUNCTION? ..................................................................................................................................... 5 A. Origin in Domestic and International Law ......................................................................... 6 B. Necessary Judicial Powers ................................................................................................ 11 C. Scope of Powers—Private vs. Public Functions ............................................................... 17 D. Consent and Its Limits in International Adjudication ....................................................... 21 II. SOURCES AND TYPES OF INHERENT POWERS: THE MULTIPLE AND THE OVERLAPPING .. 33 A. Expressed Inherent Powers ............................................................................................... 34 B. Discretionary Inherent Powers.......................................................................................... 41 C. Implied Inherent Powers.................................................................................................... 46 D. Rule-Based Inherent Powers ............................................................................................. 53 CONCLUSION ................................................................................................................................ 57

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Andrea K. Bjorklund is the L. Yves Fortier Chair in International Arbitration and International Commercial Law at McGill University Faculty of Law. Jonathan Brosseau is a graduate from the B.C.L./LL.B. (Hons.) program at McGill University and the LL.M. program (Volterra Fietta Prize) at the University of Cambridge. We are grateful to Catherine Kessedjian and Martins Paparinskis for comments on an earlier draft of this paper. All errors, of course, are ours alone.

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INTRODUCTION In September 1984, the Full Tribunal of the Iran-United States Claims Tribunal (“IUSCT”) was scheduled to meet in administrative session when a dramatic incident occurred that appeared to be unprecedented in the history of international arbitration. An ongoing feud within the Tribunal ended with the two Iranian members grabbing and pounding their Swedish colleague until the police rushed in to rescue the 69-year-old arbitrator. One of the Iranian members even reportedly threatened to kill that same arbitrator two days later.2 The procedure to follow in these circumstances was, perhaps unsurprisingly, envisaged by no single provision of the Algiers Declarations or the Tribunal Rules.3 But this in no way prevented the President of the IUSCT from acting. He immediately canceled all further proceedings, relying on the “the powers inherent in the office of the President.”4 This anecdote illustrates themes central to this chapter. One is that international courts and tribunals have typically referred to, and relied on, inherent powers when unexpected and unusual issues not directly addressed by their constitutive instruments and procedural rules have arisen,5 especially in nascent fields of international law.6 Another theme that this anecdote brings 2

Roman Rollnick, Showdown in The Hague Brawl Stalls U.S.-Iranian Claims Tribunal, UNITED PRESS INTERNATIONAL, Sept. 15, 1984, http://www.upi.com/Archives/1984/09/15/Showdown-in-The-Hague-Brawl-stallsUS-Iranian-claims-tribunal/8388464068800/. 3 Letter of John R. Crook (Agent of the U.S.) to the Appointing Authority initiating the Challenge of Judges Mahmoud Kashani and Shafei Shafeiei (Sept. 17, 1984), reprinted in DAVID D. CARON & LEE M. CAPLAN, THE UNCITRAL ARBITRATION RULES: A COMMENTARY 235–36 (2d ed. 2013). 4 Letter of Gunnar Lagergren (Iran-U.S. Claims Tribunal President) to All Arbitrators, Mohammad K. Eshgrah (Agent of Iran), and John R. Crook (Agent of the U.S.) (Sept. 5, 1984), reprinted in Gunnar Lagergren, Iran-United States Claims Tribunal, in REALISM IN LAW-MAKING: ESSAYS ON INTERNATIONAL LAW IN HONOUR OF WILLEM RIPHAGEN 113, 128–29 (Adriaan Bos & Hugo Siblesz eds., 1986). 5 This chapter sometimes mentions constitutive instruments alone for reasons of brevity and style, even if procedural rules can equally shape inherent powers: see, e.g., CAMERON A. MILES, Ch. 3: Constituent Instruments and Procedural Rules, in PROVISIONAL MEASURES BEFORE INTERNATIONAL COURTS AND TRIBUNALS 82 (2017). 6 In the domestic context, see Paola Gaeta, Inherent Powers of International Courts and Tribunals, in MAN’S INHUMANITY TO MAN: ESSAYS ON INTERNATIONAL LAW IN HONOUR OF ANTONIO CASSESE 365 (Antonio Cassese & Lal Chand Vohrah eds., 2003) (“[T]o supplement the paucity of statutory regulations, courts of law [in common law jurisdictions] need to resort to the notion of inherent powers in order to deal with the multifarious occurrences copping up in judicial proceedings.”). In the international context, see Michele Buteau & Gabriel Oosthuizen, When the Statute and Rules Are Silent: The Inherent Powers of the Tribunal, in ESSAYS ON ICTY PROCEDURE AND

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to light is that adjudicative bodies have rarely attempted to define these powers and to map out their sources. 7 While commentators have debated various approaches to these issues, 8 there remain significant uncertainty and confusion in practice about the content and legal basis of inherent powers. This chapter takes part in a debate about the sources of inherent powers that has been particularly vibrant since the early 2000s. It also seeks to engage with the scope of inherent powers, but only insofar as it relates to the very existence—and not the limitations or boundaries—of these powers.9 Although the concept of inherent powers is closely tied to the procedural powers of an adjudicative body, the analysis goes beyond the conduct of the arbitration and includes “merits” or substantive issues, which are also essential to understanding these powers.10 Further, one of this chapter’s added contributions to the scholarship is the discussion of ad hoc commercial arbitration, which is mostly left out of pieces on international adjudication and addressed on its own in separate pieces.11 Numerous examples thus come from this field, although independent research was also conducted to ensure they depict broader trends applicable in international adjudication.12 EVIDENCE IN HONOUR OF GABRIELLE KIRK MCDONALD 65 (Richard May et al. eds., International Humanitarian Law Series, 2001) (stating that “[t]he main cause of the need to resort to such [inherent] powers lies in the relatively rudimentary nature of the [International Criminal Tribunal for the former Yugoslavia, or 'ICTY’]’s constituent instrument, the Statute, and its Rules and other formal documents.”). 7 Gaeta, supra note 6, at 358; Elihu Lauterpacht, “Partial” Judgements and the Inherent Jurisdiction of the International Court of Justice, in FIFTY YEARS OF THE INTERNATIONAL COURT OF JUSTICE: ESSAYS IN HONOUR OF SIR ROBERT JENNINGS 477 (A. V Lowe & M Fitzmaurice eds., 1996); Chester Brown, Inherent Powers in International Adjudication, in THE OXFORD HANDBOOK OF INTERNATIONAL ADJUDICATION 829 (Cesare Romanò et al. eds., 2014). 8 See infra § I.A. 9 On the limits of inherent powers, see Chester Brown, The Inherent Powers of International Courts and Tribunals, 76 BRIT. Y.B. INT'L L. 195, 237–244 (2006). 10 On procedural issues and inherent powers, see Jeffrey Waincymer, Powers, Rights and Duties of Arbitrators, in PROCEDURE AND EVIDENCE IN INTERNATIONAL ARBITRATION 71–74 (2012). 11 See, e.g., Margaret L. Moses, Inherent and Implied Powers of Arbitrators, in DEFINING ISSUES IN INTERNATIONAL ARBITRATION: CELEBRATING 100 YEARS OF THE CHARTERED INSTITUTE OF ARBITRATORS 209 (Julio César Betancourt ed., 2016). One notable exception is the practice of the IUSCT, although it too forms a relatively self-contained system in comparison to ad hoc commercial arbitral disputes. 12 On inherent powers comparatively in numerous fields of international law, see Brown, supra note 9,

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The main thesis of this chapter is that the distinguishing feature of inherent powers is not their absence from constitutive instruments, but rather the fact that they are powers necessary to fulfill the judicial function. This definition of inherent powers is broad mostly because the concept of inherent powers itself overlaps with other ideas in international law. Although inherent powers may partly differ as between interstate adjudication and international arbitration, they do share certain essential characteristics. For instance, it is possible that certain powers inherent in international adjudication, such as those necessary to ensure independent and impartial adjudication, should be considered immutable. In addition, this thesis emphasizes the primary role that constitutive instruments and procedural rules play in shaping the inherent powers of international courts and tribunals, which should alleviate concerns about the legitimacy of these powers. While inherent powers are indeed typically non-enumerated powers that originate from well-entrenched rules in international law,13 inherent powers can be set out in the expressed and discretionary provisions of constitutive instruments or inferred from these instruments as a whole. This chapter is divided into two. The first section aims to define the challenging concept of inherent powers, contemplating the broader issue of whether the use of these powers amounts to exercising, or exceeding, an adjudicative body’s proper function. The chapter thus considers the origin of inherent powers in domestic and international law, the idea that inherent powers are necessary judicial powers, and the scope of these powers. The analysis then focuses on the limits (or potential absence of limits) that state and private parties can (or cannot) impose on inherent powers. The second section of the chapter examines the multiple and overlapping sources and

13

Compare Filip De Ly et al., Report for the Biennial Conference in Johannesburg, INT'L L. ASS'N, COMM. ON INT'L COM. ARB. (Aug. 2016) (introducing the helpful term “non-enumerated powers”) with Brown, supra note 9, at 205 (opting for “extra-statutory powers").

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types of inherent powers. Inherent powers that are expressed, discretionary, implied, and rulebased are studied in turn.

I. DEFINING INHERENT POWERS: EXERCISING, BODY’S FUNCTION?

OR

EXCEEDING,

AN

ADJUDICATIVE

The task of defining inherent powers in international adjudication is a tall order for many reasons. First, the exact meaning of the term “inherent” itself is elusive. Second, drafters have refrained from using the specific term “inherent powers” in treaties, agreements, and rules. This is unsurprising given they have traditionally been understood as non-enumerated powers, but it remains the case that there is no authoritative definition of the concept—not even in soft law instruments or in secondary sources of international law.14 Third, the given meaning of these powers may vary from one adjudicatory body to another in international adjudication. Even the same adjudicatory body sometimes refers to the term as synonymous with other ones. For example, “the [ICTY] Chambers have in various instances referred to the power at issue as an ‘inherent’ or an ‘implied power’, and as an ‘incidental’ or ‘ancillary jurisdiction,’ often apparently interchangeably, in similar contexts.”15 Thus, the practice of international courts and tribunals on inherent powers is far from consistent. Yet, it is fundamental to have a working definition and understanding of the concept in order to have an informed discussion. Commentators have attempted to provide such a definition. Most notably, the ILA’s Committee on International Commercial Arbitration issued a report in 2016 suggesting a framework for understanding inherent powers, which includes three categories: (1) “powers implied by textual sources: powers particular to the parties’ agreement”; 14

Notably, the ILA’s Committee on International Commercial Arbitration could not agree on a definition of inherent powers, and revised its findings between the 2014 and 2016 versions of the report: De Ly et al., supra note 13, n.1. 15 Buteau & Oosthuizen, supra note 6, at 80.

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(2) “discretionary powers of procedure: the right to oversee proceedings”; and (3) “inherent powers: the duties of arbitrators to protect the integrity of proceedings and render an enforceable award.”16 While this report contains laudable insights, it fails to distinguish clearly between the concepts of implied powers and inherent powers. In this section, we will show that inherent powers should be defined as necessary judicial powers. But, first, the origin and development of inherent powers in both domestic and international law are examined.

A.

Origin in Domestic and International Law The doctrine of inherent powers gradually emerged from the practice of English courts

several centuries ago. As the concept of a substantive law independent from any particular sovereign developed, certain powers deriving from the royal prerogative were eventually recognized as inherent powers of the courts.17 In 1885, Lord Blackburn famously observed that “from early times (I rather think, though I have not looked at it enough to say, from the earliest times) the court had inherently in its power the right to see that its process was not abused by a proceeding without reasonable grounds.”18 The doctrine today has spread and flourished in multiple common law jurisdictions, including the United States, Australia, Canada, Singapore, and New Zealand.19 While there is a debate as to whether all courts or only superior courts possess inherent powers, it is agreed that the basis for them is not statutory, but rather “the authority of the judiciary to uphold, to protect and to fulfil the judicial function of administering

16

Id. at 80. Robert J. Pushaw, The Inherent Powers of Federal Courts and the Structural Constitution, 86 IOWA L. REV. 735, 800–06 (2001) (“English judges initially served as the king’s personal representatives in exercising his prerogative to do justice. . . . This bond with the executive branch was the source of the judiciary’s deep well of powers-including those that gradually came to be known as ‘inherent,’ such as contempt. Courts gradually became more autonomous as the idea emerged of a substantive law that existed independent of any particular ruler”). 18 Metropolitan Bank Ltd. v. Pooley [1885] 10 App. Cas. 210 (PC) per Lord Blackburn at 220–21. 19 De Ly et al., supra note 13, at 5. 17

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justice according to law in a regular, orderly and effective manner.”20 Common law courts have therefore exercised inherent powers to make rules of court and directions, to prevent abuse of process, to stay proceedings, and to exercise control over persons.21 While the doctrine of inherent powers is a cornerstone of judicial powers in common law jurisdictions, there is no exact equivalent to it in the civil law tradition. The primacy of codes and legislation in civil law jurisdictions is traditionally reinforced by ongoing skepticism towards the judiciary.22 The rules of civil procedure are hence mostly spelled out in constitutional law and statutes.23 In spite of these limitations, civil law judges do rely sometimes on non-enumerated powers as a source of procedural law, such as rules relating to fundamental rights in France, custom in Norway, or judicial decisions in Sweden. 24 Thus, some of the inherent powers described would indeed be recognized and exercised by civil judges.25 Given that inherent powers are essentially judge-made, one should approach them cautiously in the international adjudicatory realm since the canonical list of sources of international law assigns an evidentiary role to judgments that is closer to the civil rather than the common law. In international adjudication, the concept of inherent powers was seemingly first introduced with the principle of compétence de la compétence (“competence-competence” or

20

I.H. Jacob, The Inherent Jurisdiction of the Court, 23 CURRENT LEGAL PROBS. 23, 27 (1970). See also J.A. Jolowicz, Practice Directions and the Civil Procedure Rules, 59 CAMBRIDGE L.J. 53, 56–57 (2000); Connelly v. DPP, [1964] AC 1254 (PC) per Lord Morris of Borth-y-Gest at 1301. One may expect that lower courts would need to rely even more frequently on inherent powers than superior courts, as they are “on the front line” managing case developments and obstreperous litigants. 21 Brown, supra note 7, at 833 (footnotes omitted). 22 H. PATRICK GLENN, LEGAL TRADITIONS OF THE WORLD: SUSTAINABLE DIVERSITY IN LAW 155 (2014). 23 For example, the judge in Brazil is bound in procedural matters by the minutiae of the Code of Civil Procedure. CÓDIGO DE PROCESSO CIVIL [C.D.C] Lei No. 13.105 de Março de 2015, arts. 139–43. 24 Brown, supra note 9, at 206 n.71. 25 The prior examples of rules resembling inherent powers do not precisely correspond to court-made doctrine in the common law and have different purposes and scope of application. Jessica Liang, The Inherent Jurisdiction and Inherent Powers of International Criminal Courts and Tribunals: An Appraisal of Their Application, 15 NEW CRIMINAL LAW REVIEW: AN INTERNATIONAL AND INTERDISCIPLINARY JOURNAL 375, 377 (2012) (“Although commentators have cited examples of principles resembling [those] of inherent powers in European civil law systems, these do not fully correspond to the common law version.”) (footnotes omitted).

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“kompetenz-kompetenz”). In the case of The Betsy (1797), the question arose whether the commissioners of the Mixed Commissions organized under the Jay Treaty between the United States and Great Britain had the power to determine their own jurisdiction. US Commissioner Gore opined: “[a] power to decide whether a Claim preferred to this board is within its Jurisdiction, appears to me inherent in its very Constitution, and indispensably necessary to the discharge of any of its duties.”26 A century later, the report of Baron Descamps to the First Hague Conference of 1899 on Article 48 of Convention No I suggested that rejecting the principle would place the tribunal in the condition of a court incapable of acting: “[t]he more arbitration assumes the character of an institution of international common law, the more the power of the arbitrators to decide upon this matter appears to be of the very essence of the arbitral function and one of the inherent requirements for the exercise of this function.”27 The advent of the International Court of Justice (“ICJ”) has strengthened the position that international courts and tribunals have inherent powers, including the power of determining their own jurisdiction. Article 36(6) of the ICJ Statute provides that “[i]n the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.”28 In its early years, the ICJ reflected upon the origin and purpose of this provision in the Nottebohm case: Paragraph 6 of Article 36 merely adopted, in respect of the Court, a rule consistently accepted by general international law in the matter of international arbitration. Since the 26

JOHN BASSETT MOORE, HISTORY AND DIGEST OF THE INTERNATIONAL ARBITRATIONS TO WHICH THE UNITED STATES HAS BEEN A PARTY 2278 (1898). 27 JAMES BROWN SCOTT, THE REPORTS TO THE HAGUE CONFERENCES OF 1899 AND 1907, at 83 (1917) (“The parties may, of course, limit as they may agree the extent of the powers of the arbitrators; they may submit the exercise of this power to such reservations as they deem necessary or opportune. They may, if they choose, formulate the principles which the arbitrators shall follow to guide them in their decision. But it does not seem possible to refuse the arbitrators the power of deciding in case of doubt whether the points are within or without their jurisdiction.”). 28 Statute of the International Court of Justice art. 36, ¶ 6, June 26, 1945, 59 Stat. 1055, T.S. No. 993. Art. 53, ¶ 2 also envisages that in the absence of an appearance by a party, the Court has to satisfy itself “that it has jurisdiction.”

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Alabama case, it has been generally recognized, following the earlier precedents, that, in the absence of any agreement to the contrary, an international tribunal has the right to decide as to its own jurisdiction and has the power to interpret for this purpose the instruments which govern that jurisdiction . . . . Article 36, paragraph 6, suffices to invest the Court with power to adjudicate on its jurisdiction in the present case. But even if this were not the case, the Court, “whose function is to decide in accordance with international law such disputes as are submitted to it” (Article 38, paragraph 1, of the Statute), should follow in this connection what is laid down by general international law. The judicial character of the Court and the rule of general international law referred to above are sufficient to establish that the Court is competent to adjudicate on its own jurisdiction in the present case.29

In other words, the Court asserted that its power to decide on its own competence may well be expressly laid down in its Statute, but also that this power could derive from the nature of the Court or general international law. Thus, the Court is suggesting that a provision in its constitutive instrument may simply recognize a power it already possesses.30 Although international courts and tribunals have referred to, and relied on, inherent powers commonly in the last decades, few have offered detailed explanations about the legal basis of these powers.31 The Nuclear Tests case of 1976 contains the ICJ’s most elaborate analysis of its inherent powers: the Court possesses an inherent jurisdiction enabling it to take such action as may be required, on the one hand, to ensure that the exercise of its jurisdiction over the merits, if and when established, shall not be frustrated, and on the other, to provide for the orderly settlement of al1 matters in dispute, to ensure the observance of the “inherent limitations on the exercise of the judicial function” of the Court, and to “maintain its judicial character.”32

The Court further exposed in this decision the sources or rationale of its “inherent jurisdiction”: Such inherent jurisdiction, on the basis of which the Court is fully empowered to make whatever findings may be necessary for the purposes just indicated, derives from the 29

Nottebohm (Liech. v. Guat.), Preliminary Objections, 1953 I.C.J. 111, ¶¶ 119–20 (Nov. 18). See GERALD FITZMAURICE, THE LAW AND PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE 451–57 (1986). See also infra § II.A. 31 Gaeta, supra note 6, at 358; Lauterpacht, supra note 7, at 477; Brown, supra note 7, at 829. 32 Nuclear Tests (Austl. v. Fr.), Judgment, 1974 I.C.J. 253 ¶ 23 (citing Northern Cameroons (Cameroons v. U.K.), Preliminary Objections, 1963 I.C.J. 15, at 29 (Dec. 2)). 30

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mere existence of the Court as a judicial organ established by the consent of States, and is conferred upon it in order that its basic judicial functions may be safeguarded.33

Interpreting this passage, Professor Brown identified three different bases of inherent powers: the nature of an international court as a judicial body, the doctrine of implied powers, and the basic judicial functions of an international court.34 He also adds that there is a fourth possible source of inherent powers, that is, general principles of law.35 Relying on the case law of international courts and tribunals and scholarship more broadly, commentators have generally favored one of these four approaches to the sources of inherent powers. First, some have argued that these powers stem from the judicial nature of the adjudicative body itself.36 Second, another group of commentators has preferred to rely on the doctrine of implied powers in international law and has derived inherent powers from the unexpressed will of the drafters of the constitutive instrument establishing international courts and tribunals. 37 Third, others have claimed that inherent powers come from the need for international courts and tribunals to fulfill their functions.38 Finally, a last group has derived them from general principles of international law or from general principles of law recognized by

33

Austl. v. Fr., 1974 I.C.J ¶ 23. Brown, supra note 7, at 838. 35 Id. at 841–42. 36 See, e.g., FITZMAURICE, supra note 30, at 770–71; Anthony Arnull, Does the Court Have Inherent Jurisdiction?, 27 COMMON MKT. L. REV. 683, 700–07 (1990); Buteau & Oosthuizen, supra note 6, at 79 ("[W]here the Statute is silent, the tribunal’s inherent power may be invoked nonetheless as a legal basis for resolving an issue. This power automatically flows from the tribunal’s judicial nature and has been an inherent feature since its creation."). 37 See, e.g., Lauterpacht, supra note 7, at 477–78; Martins Paparinskis, Inherent Powers of ICSID Tribunals: Broad and Rightly So, in INV. TREATY ARB. AND INT'L L. 11, 14 (Ian A Laird & Todd Weiler eds., 2012). 38 See, e.g., Brown, supra note 7, at 841–42; Dinah Shelton, Form, Function, and the Powers of International Courts, 9 CHI. J. INT’L L. 537, 571 (2009) (“While all courts, by virtue of being courts, have inherent powers derived from their judicial functions – including the need for independence and control over the administration of justice – each court’s specific functions are coupled with express and implied powers that are particularly important to fulfilling that function. An understanding of the different functions and the implications of them for the type and scope of implied powers is necessary to properly evaluate the work of the international judiciary.”). 34

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civilized nations.39 These four approaches may only be correctly assessed in light of a sound definition of inherent powers, which is what the following subsection strives to provide.

B.

Necessary Judicial Powers One meaning of the term inherent refers to something “[v]ested in or attached to a person

[or] office . . . as a right or privilege.”40 The definition of “inherent power” in Black’s Law Dictionary relies on such an understanding, stating that it is “[a] power that necessarily derives from an office, position, status.”41 This meaning, however, seems to apply specifically to the domestic context where the concept of inherent powers developed in common law jurisdictions.42 The term inherent also pertains to that which “exist[s] in something as a permanent attribute or quality; forming an element, esp[ecially] a characteristic or essential element of something; belonging to the intrinsic nature of what is spoken of.”43 This definition better reflects the practice of international adjudication and the case law of adjudicative bodies, as this subsection demonstrates.44 Thus, the concept of inherent powers relates to the nature of the powers.45

39

See, e.g., Gaeta, supra note 6, at 367; Liang, supra note 25, at 386. See also MALCOLM N. SHAW, ROSENNE’S LAW AND PRACTICE OF THE INTERNATIONAL COURT, 1920-2015, at 600–07 (5th ed. 2016). Most commentators have resisted any suggestion of overlap between these approaches with the exception of Paparinskis, supra note 37 passim. 40 J.A. SIMPSON & E.S.C. WEINER, THE OXFORD ENGLISH DICTIONARY, 969 (2d ed. 1989) (emphasis in original). 41 BLACK’S LAW DICTIONARY 1358 (Bryan A Garner ed., 2014). 42 For instance, the definition of “inherent” in the Oxford English Dictionary refers to a law report of 1891, which notes, “[e]very Court had an inherent power to allow a person who had invoked its jurisdiction to withdraw his application.”. SIMPSON & WEINER, supra note 40, at 969. 43 Id. 44 See also Iran v. U.S., Decision No. DEC 134-A3/A8/A9/A14/B61-FT ¶ 59 (July 1, 2011) (Iran–U.S. Cl. Trib.) (quoting CARON & CAPLAN, supra note 3 (“Something inherent is something necessarily a part of the object in question.”)). 45 Paparinskis, supra note 37, at 14; Moses, supra note 11, ¶ 12 (“Inherent powers . . . come into play when some conduct that is generally unexpected and unusual must be dealt with in order to prevent the arbitral process from being undermined.”) (emphasis added) (footnote omitted).

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As in domestic law,46 inherent powers are “necessary” or “essential” judicial powers. The ICJ made this finding in the passage of the Nuclear Tests case referred to above. The Appeals Chamber of the Special Tribunal for Lebanon took a similar stance in 2010, when it commented: [T]he power . . . to determine incidental legal issues which arise as a direct consequence of the procedures of which the Tribunal is seized by reason of the matter falling under its primary jurisdiction. This inherent jurisdiction arises as from the moment the matter over which the Tribunal has primary jurisdiction is brought before an organ of the Tribunal . . . . The inherent jurisdiction is thus ancillary or incidental to the primary jurisdiction and is rendered necessary to ensure a good and fair administration of justice.47

The International Criminal Tribunal for Rwanda, furthermore, noted that the use of inherent powers for the purpose of granting compensation in one case was warranted because the provision of an effective remedy was “essential for the carrying out of its judicial functions, including the fair and proper administration of justice . . .”48 In sum, inherent powers are those that go to the core of the mandate given to an adjudicatory body in international law. Dispute settlement is one of the four functions states have expressly allocated to international courts and tribunals.49 Natural justice, subsumable under “general principles of law” referred to in Article 38(1)(c) of the ICJ Statute, 50 reflects the requirements to respect the

46

In the United States, see Pushaw, supra note 17 (“The Supreme Court has long defined ‘inherent powers’ as those which ‘cannot be dispensed with . . . because they are necessary to the exercise of all others.’”) (footnote omitted). 47 In the Matter of El Sayed, Case No. CH/AC/2010/2, Decision on Appeal of Pre-Trial Judge’s Order Regarding Jurisdiction and Standing (Spec. Trib. for Lebanon, App. Ch.) ¶ 45 (Nov. 10, 2010) (emphasis added). 48 Prosecutor v. Rwamakuba, Case No. ICTR-98-44C-T, Decision on Appropriate Remedy, (Trial Chamber III) ¶ 49 (Dec. 31, 2007). See also Juan Antonio Carrillo-Salcedo, The Inherent Powers of the International Criminal Tribunal for the Former Yugoslavia to Issue “Subpoena Duces Tecum” to a Sovereign State, in MÉLANGES EN L’HONNEUR DE NICOLAS VALTICOS: DROIT ET JUSTICE 269 (René-Jean Dupuy ed., 1999) (“[T]he [ICTY] must be deemed under international law to have those powers which . . . are conferred upon it by necessary implication as being essential to the performance of its duties.”) (emphasis omitted). 49 The other functions are compliance assessment, enforcement, and legal advice. “There is undoubtedly overlap between these functions and courts may undertake more than one of them, but each court has a dominant function at a given time”. Shelton, supra note 38, at 539. Although the mainstream public international law position emphasizes consent as the conceptual tool enabling international courts and tribunals to carry on these various functions, there is increasing support for a position based on delegation instead. See YUVAL SHANY, QUESTIONS OF JURISDICTION AND ADMISSIBILITY BEFORE INTERNATIONAL COURTS 22 (2016). 50 HUGH THIRLWAY, THE SOURCES OF INTERNATIONAL LAW 24 (2014) (opining that natural law operates as a synonym for “general principles of law” in Article 38[1][c]).

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minimum considerations of fairness, reciprocity, and particular aspects of the case.51 In practice, these basic conditions translate into a number of essential characteristics of adjudicative bodies in international law: i) a body composed of independent and impartial members, ii) is called to take a decision binding upon the parties to the dispute, iii) after an adversarial procedure during which the parties benefit from an equality of rights, and, iv) . . . the decision—usually an award in the case of arbitration, a judgment when given by a permanent body—will generally be based on exclusively legal consideration but might be founded on pure equity (ex aequo et bono) if the parties so agree.52

In a few words, international courts and tribunals are independent bodies that answer legal questions according to rules of law, and inherent powers are those powers necessary for a tribunal to fulfill this specific judicial mandate. What,

however,

qualifies

as

a

necessary

power

in

international

dispute

settlement? 53 Although examples are certainly context-dependent and their application is potentially unlimited,54 this book aims to answer this tough question through a number of chapters on inherent powers in practice. A theoretical distinction can be drawn between procedural inherent powers ﴾i.e., “la police de l’audience”﴿ and the inherent powers that go to the substance of the case and the art of judging. In practice, however, many chapters in this book confirm that inherent powers apply to both procedural and substantive issues.55 One reason why

51

Alexander Orakhelashvili, Natural Law and Justice, in MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW ¶ 47 (2007). Reliance on natural law is perhaps less fashionable today than it was a few decades ago. Yet, it does provide some answers where positive law fails to do so (id. ¶¶ 35–50). 52 Alain Pellet, Judicial Settlement of International Disputes, in MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW ¶ 25 (2013). 53 CARON & CAPLAN, supra note 3, at 828 (“The debate then becomes precisely what powers are necessary for an institution to possess a judicial nature.”). 54 See Buteau & Oosthuizen, supra note 6; De Ly et al., supra note 13, at 7; Brown, supra note 9. 55 See, e.g., chapters on corruption and competition law (in this book). Professor Brown also opines that “[i]t is well established that notwithstanding the absence of an express power, international courts having jurisdiction over a dispute also have as an essential part of that jurisdiction the power to award remedies”, and that “the source of the jurisdiction of international courts to award remedies . . . has been referred to . . . as an inherent power.” Brown, supra note 9, at 221–22. See also Buteau & Oosthuizen, supra note 6, at 80.

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inherent powers apply to both is that a given right can have a procedural and substantive component.56 Commentators have identified various categories of inherent powers possessed by international courts and tribunals. They include the powers to: (1) interpret the submissions of the parties to isolate the issue(s) in the case and identify the object(s) of the claim; (2) determine whether the court is competent to hear a particular matter; (3) determine whether the court should refrain from exercising jurisdiction that it has; and (4) decide all issues concerning the exercise of its jurisdiction, including ruling on questions about evidence, burden of proof, due process, and questions of law relevant to the merits of the dispute.57

While extremely broad (especially the latter), these categories are still likely not exhaustive. However, they illustrate well that inherent powers are typically instrumental in the adjudication of the main claim, are intended to safeguard the judicial character of courts, and strive to regulate the proceedings.58 Powers that relate to—or are a prerequisite for—the exercise of an adjudicative body’s primary jurisdiction should be considered inherent. In common law jurisdictions, the distinction between the concepts of inherent powers and inherent jurisdiction has mostly been blurred in

56

LARRY MAY, GLOBAL JUSTICE AND DUE PROCESS 43 (2011). The line between substance and procedure itself is not an easy one to draw: see Martins Paparinskis, Procedural Aspects of Shared Responsibility in the International Court of Justice, 4 J. INT’L DISP. SETTLEMENT 295 (2013). 57 JOOST PAUWELYN, CONFLICT OF NORMS IN PUBLIC INTERNATIONAL LAW: HOW WTO LAW RELATES TO OTHER RULES OF INTERNATIONAL LAW 447–48 (2003). 58 Gaeta, supra note 6. See also In the Matter of El Sayed, Case No. CH/AC/2010/2, Decision on Appeal of PreTrial Judge’s Order Regarding Jurisdiction and Standing (Spec. Trib. for Lebanon, App. Ch.) ¶ 46 (Nov. 10, 2010) (noting international courts and tribunals have exercised many inherent powers, including "the power to take interim measures, to request stays of domestic proceedings or to stay its own proceedings, to order the discontinuance of a wrongful act or omission, to appraise the credibility of a witness appearing to testify under solemn declaration before the international court, to pronounce upon instances of contempt of the court, to order compensation in appropriate circumstances, to consider matters or issue orders priprio motu, and to rectify material errors contained in a court’s judgment.”) (emphasis in original) (footnotes omitted).

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practice since the seminal piece of Sir Jack Jacob in 1970. 59 According to him, inherent jurisdiction includes a court’s inherent power to control its own processes. Although it has been debated whether this is proper in the common law given the origin and development of inherent powers,60 this convergence has in fact occurred in international law since the decision of the ICJ in the Nuclear Test case.61 Moreover, it seems appropriate that the jurisdictional mandate of international courts and tribunals determines in large part the powers they need to have, especially in this system where state consent and party autonomy are paramount.62 Inherent powers are necessary to fully discharge the jurisdiction of international courts and tribunals and to safeguard their judicial function.63 In international law, adjudicative bodies are vested with a primary or original jurisdiction from which they often derive an incidental or inherent jurisdiction.64 The exercise of this primary jurisdiction can implicate powers and rules not expressly contemplated by constitutive instruments. For instance, an investment tribunal vested with the mandate to examine a state’s conduct against international law standards could be called on—by a substantive obligation in an investment treaty—to apply domestic law, even if the applicable law clause does not envisage this possibility.65 The ICTY Chamber is thus right 59

Jacob, supra note 20. Marcello Rodriguez Ferrere, The Inherent Jurisdiction and Its Limits, 13 OTAGO L. REV. 107, 111 (2013) (“[T]he terms ‘jurisdiction’ and ‘powers’ are separable by arguing that jurisdiction is a substantive power to hear and determine a matter whereas powers, in contrast, are simply incidental . . . .”). 61 Nuclear Tests (Austl. v. Fr.), 1974 I.C.J. 253. See also SHAW, supra note 39, at 580. 62 Professor Mitchell and Mr. Heaton, for instance, use the terms “inherent jurisdiction” and “inherent powers” interchangeably to “refer to applicable law deriving from the WTO Tribunal’s position as an international tribunal.” See Andrew D. Mitchell & David Heaton, The Inherent Jurisdiction of WTO Tribunals: The Select Application of Public International Law Required by the Judicial Function, 31 MICH. J. INT’L L. 559 (2010). 63 Buteau & Oosthuizen, supra note 6, ¶ 79. 64 Prosecutor v. Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Int’l Crim. Trib. for Former Yugoslavia) ¶ 14 (Oct. 2, 1995); In the Matter of El Sayed, Case No. CH/AC/2010/2, Decision on Appeal of Pre-Trial Judge’s Order Regarding Jurisdiction and Standing (Spec. Trib. for Lebanon, App. Ch.) ¶ 45 (Nov. 10, 2010). With respect to the inherent character of the power to establish the primary or original jurisdiction of an adjudicative body, see also JACKSON H. RALSTON, THE LAW AND PROCEDURE OF INTERNATIONAL TRIBUNALS 44–48 (1926); SHAW, supra note 39, at 600–07; KENNETH SMITH CARLSTON, THE PROCESS OF INTERNATIONAL ARBITRATION 76 (1946). 65 Jonathan Brosseau, The Application of Domestic Law in Investment Arbitration (2016) (unpublished LL.M. Thesis, University of Cambridge). 60

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in claiming that by relying on inherent powers in the Blaškić case, it “is not seeking to extend its competence beyond that laid down in the Statute, . . . but merely exercising its necessary incidental judicial functions in fulfillment of its purpose.”66 Furthermore, the above discussion begs the question of whether there exists an independent or stand-alone doctrine of inherent powers in international law, or simply a set of rules or powers tied together under the label of inherent powers. This issue has not been analyzed in the case law and scholarship, but it could be key to better understanding inherent powers. This legal vacuum makes it difficult to answer this question. What is clear, however, is that the historical origin of the concept in international law differs from that in common law jurisdictions, as the previous subsection has shown. Moreover, the development of multiple and overlapping sources and types of inherent powers suggests it is improbable there is stand-alone doctrine in international law,67 at least at the present time. A result of inherent powers’ status as a set of disparate rules is that some may be less subject to removal by party consent than others due to the potential to negate the judicial function of an adjudicative body.68 The present definition of inherent powers certainly is broad, and risks encompassing many powers possessed by international courts and tribunals. The case law and scholarship, however, support focusing on powers necessary for a tribunal to fulfill its judicial function.69 This definition recognizes that states and private parties can expressly limit certain inherent powers in constitutive instruments. It also acknowledges that some powers provided for in these instruments, given that they are expendable, are not and should not be considered inherent

66

Prosecutor v. Blaškić, Case No. IT-95-14-PT, Decision on the Objection of the Republic of Croatia to the Issuance of Subpoena Duces Tecum (Int'l Crim. Trib. for Former Yugoslavia) ¶ 49 (Jul. 18, 1997). 67 See generally § II. 68 See infra § I.D. 69 On the reasoning behind the functional approach, see Brown, supra note 7, at 841–42; Brown, supra note 9, at 228–29.

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powers.70 Another potential set of concerns with the definition is that it may conflate inherent powers with other concepts in international law, such as judicial discretion and incidental jurisdiction. Properly viewed, this definition does not blur the line between these concepts, but acknowledges the fact that inherent powers may overlap with and sometimes encompass them. For instance, incidental jurisdiction is a principle of international law which the concept of inherent powers covers as the capacity to exercise this incidental jurisdiction. Looking further into the scope of inherent powers, as the subsequent subsection does, provides insights about the existence and sources of inherent powers.

C.

Scope of Powers—Private vs. Public Functions It is a fact of life in international adjudication that courts and tribunals are routinely

required to determine the meaning and scope of their own powers. Analyzing inherent powers in international arbitration, Professor Moses exposes the field in which they work: On the spectrum of proper arbitrator powers, there is an area of sunshine, and an area of shadow. In the sunny area are any powers defined in the arbitration agreement of the parties, in any rules of an arbitral institution adopted by the parties, and in any arbitration law at the seat of the arbitration . . . . Nonetheless, there will always be some areas of shadow, because even the most complete agreement, laws, or rules cannot cover every situation where an arbitrator may be required to act.71

Operating within this shadow, an adjudicative body called upon to exercise an inherent power not only has to ascertain whether it has that specific power, but also to assess whether it is exercising or exceeding its jurisdiction.72 In performing this task among the many others proper to their mandate, international courts and tribunals should rely on traditional techniques of

70

On the limits of inherent powers, see Brown, supra note 9, at 237–244. Moses, supra note 11, ¶¶ 4–5. 72 Liang, supra note 25, at 393. 71

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comparative and functional analysis to determine the scope and content of their inherent powers.73 Certainly, inherent powers differ in interstate adjudication and international arbitration. This divergence arises primarily from the sources regulating each of these judicial processes. Interstate adjudication is not subject to any review in domestic courts. In contrast, international arbitration derives at least some of its normative force from its acceptance in domestic law, and proceedings often depend on procedures before domestic courts.74 Proceedings under the ICSID Convection represent a hybrid case, as the Convention establishes a largely self-contained system that leaves a minimal role to domestic courts and domestic law (at least in the conduct of the arbitration and in the annulment stage of the proceedings).75 Moreover, while principles of interpretation come from the Vienna Convention on the Law of Treaties (“VCLT”) in interstate adjudication and investment arbitration, interpretive principles come from potentially multiple sources in international arbitration, including notably the UNIDROIT Principles of International Commercial Contracts (“UNIDROIT Principles”).76 What powers are necessary depends on the field(s) of law in which an adjudicative body operates and its constitutive instrument. Ms. Buteau and Mr. Oosthuizen explained that the scope of the ICTY’s inherent powers is predicated not only elements shared by international courts and tribunals, but also on some features specific to this adjudicative body: 73

Paparinskis, supra note 37. CARON & CAPLAN, supra note 3, at 828. Cf. EMMANUEL GAILLARD, LEGAL THEORY OF INTERNATIONAL ARBITRATION 35 (2010) (endorsing “the idea that the juridicity of arbitration is rooted in a distinct, transnational legal order, that could be labeled as the arbitral legal order, and not in a national legal system, be it that of the country of the seat or that of the place or places of enforcement.”). 75 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States [ICSID Convention] arts. 53-55, Mar. 18, 1965, 575 U.N.T.S. 159, entered into force Oct. 14, 1966. One could say that the ICSID Convention has been ratified domestically and thus that ICSID Member States have accepted it domestically as well as internationally. 76 Vienna Convention on the Law of Treaties, arts. 31–32, May 23, 1969, 1115 U.N.T.S. 331; International Institute for the Unification of Private Law (UNIDROIT), Principles of International Commercial Contracts (1994), 34 I.L.M 1067 (1995) [hereinafter UNIDROIT Principles], arts. 4.1–4.5, as revised in 2010. 74

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Questions may also be raised with respect to the scope of such powers, which should be determined by various considerations, including the Tribunal’s independent and effective functioning in a decentralised international legal environment, the rights of the accused, the concerns of the international community and the [Security Council]’s grant of powers to the Tribunal.77

To further depict how certain fields differ, one has only to think of the much-discussed differences between commercial and investment disputes, where the former primarily involve private interests and the latter often have significant implications—and potentially even a governance aspect—that extends beyond resolving the dispute.78 These differences suggest there may be a different and perhaps more substantial authority for the use of inherent powers in some fields of international law, such as interstate adjudication, than in others, such as commercial arbitration. Whether an adjudicative body is seen as having a private or public function ought to shape the necessary powers it possesses. Considering an adjudicator as a service- or justiceprovider affects the broad or narrow scope of his or her inherent powers.79 Yet all international courts and tribunals in fact have some degree of both private and public aspects. Professor Brown details how adjudicators resolve the dispute between the parties, but also ensure, among other matters, the proper administration of justice, the development of international law, and the

77

Buteau & Oosthuizen, supra note 6, at 81. See Stephan W. Schill, The Jurisprudence of Investment Treaty Tribunals: Between Public Good and Common Concern, in FOREIGN INVESTMENT, INTERNATIONAL LAW AND COMMON CONCERNS (Tullio Treves et al. eds., 2014); Stephan Schill, Crafting the International Economic Order: The Public Function of Investment Treaty Arbitration and Its Significance for the Role of the Arbitrator, 23 LEIDEN J. IN’TL L. 401 (2010). On the particular conception of the judicial function as a private vs. governance-related enterprise, see José E. Alvarez, What Are International Judges for? The Main Functions of International Adjudication, in THE OXFORD HANDBOOK OF INTERNATIONAL ADJUDICATION 158 (Cesare Romanò et al. eds., 2014). Cf. JOHN G. COLLIER & A.V. LOWE, THE SETTLEMENT OF DISPUTES IN INTERNATIONAL LAW: INSTITUTIONS AND PROCEDURES 10–18 (2000). 79 See Panel Discussion, The Inherent Authority of an ICSID Tribunal: What Is the Limit?, in INVESTMENT TREATY ARBITRATION AND INTERNATIONAL LAW 77 (Ian A Laird & Todd Weiler eds., 2012). Potential disagreement on what judicial functions are also raises the more challenging question of how to properly delineate the scope of inherent powers for fulfilling these functions. See generally CATHERINE A. ROGERS, ETHICS IN INTERNATIONAL ARBITRATION ch. 9 (2014) (“Duck-Rabbits, a Panel of Monkeys and the Status of International Arbitrators”). 78

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consideration of public interests.80 In performing each one of these functions, international courts and tribunals exercise inherent powers they consider necessary in the fulfillment of that end. Furthermore, there are essential characteristics of international adjudicative bodies that determine their inherent powers.81 All types of international adjudication are basically consentbased and adjudicative bodies perform significant judicial functions in accordance with rules of international law, such as having independent and impartial members and respecting due process.82 To take once more the case of commercial and investment disputes, the tribunal in EDF v. Romania was right to see common ground between these fields, noting that both “[p]rocedural integrity and non-aggravation of the dispute are objectives meant to preserve the parties’ right to be heard on an equal footing and to be able to collect and provide the necessary evidence in support of their claims and defences.”83 Even in commercial arbitration, adjudicators arguably have to consider certain public law aspects in resolving disputes, for instance, by taking into account how their decision on a point of law would square with trends in the available case law or by considering mandatory rules.84 Finally, there is no reason to believe principles of treaty interpretation and principles of contractual interpretation always lead to diametrically opposing outcomes even if they originate from different sources; indeed, consideration of concepts as 80

Brown, supra note 9, at 237. Moses, supra note 11, ¶ 16 ("Increasingly, arbitrators in both investment arbitrations and commercial arbitrations find that when there is silence regarding an arbitrator’s power to deal with a certain issue, the implication is not that there is no authority to act, but rather that there is no prohibition on acting in ways that are called for in the circumstances.") (footnotes omitted). 82 Pellet, supra note 52, ¶ 25. 83 EDF (Services) Limited v. Republic of Rom., ICSID Case No. ARB/05/13, Procedural Order No. 2, ¶ 46 (May 30, 2008). 84 See ROGERS, supra note 79, at 236–37 (“Arbitral awards are not endowed with any formal precedential effect on subsequent cases or other arbitral tribunals. They have nevertheless incrementally built up into a body of informal international arbitration precedent, in both investment arbitration and, to a lesser extent, in international commercial arbitration. Cumulatively, these awards have become an important source of guidance for subsequent parties and tribunals. Because they are the products of private sources, however, they are not pronounced or promulgated like public laws. They are, instead, disseminated through private channels.”). See also Gabrielle Kaufmann-Kohler, Arbitral Precedent: Dream, Necessity or Excuse? The 2006 Freshfields Lecture, 23 ARB. INT’L. 357 (2007) (investment arbitration); Pierre Mayer, Mandatory Rules of Law in International Arbitration, 2 ARB. INT’L. 274 (1986) (commercial arbitration). 81

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ordinary meaning, context, object and purpose, and good faith is similarly provided by both types of interpretation.85 Just as the (perceived and) real functions of international courts and tribunals evolve over time, so too may their inherent powers. For example, Professor Shelton notes that the InterAmerican Court of Human Rights (“IACtHR”) “was exclusively engaged in issuing advisory opinions during its first decade, thereafter gradually shifting toward hearing contentious cases as states increasingly accepted the optional jurisdiction of the court to hear human rights complaints.”86 The necessary judicial powers of the IACtHR—i.e. its inherent powers—must have developed accordingly. More broadly, what are considered necessary powers in international law is not static: this is because adjudicative bodies “uncover” their true powers when unexpected and unusual issues arise,87 but also because general principles of law by definition evolve over a long period of time. 88 While some inherent powers are arguably immutable, the vast majority are not, and may change with the mores of international adjudication.89 This idea is explored in greater detail in the next subsection.

D.

Consent and Its Limits in International Adjudication Another important issue is whether inherent powers are immutable. First of all, states and

private parties can undoubtedly restrict or modify certain inherent powers. There is no doubt that state consent and party autonomy are paramount in international adjudication.90 Article 33 of the

85

Alan Scott Rau & Andrea K. Bjorklund, BG Group and Conditions to Arbitral Jurisdiction, 43 PEPP. L. REV. 577, 624–25 (2016) (noting similar principles between the VCLT and US contract law). 86 Shelton, supra note 38, at 539 n.13. 87 See infra § II.C. 88 See infra § II.D. 89 See generally Joshua Karton, Norms Arising from the Values Shared by International Commercial Arbitrators, in THE CULTURE OF INTERNATIONAL ARBITRATION AND THE EVOLUTION OF CONTRACT LAW (2013); WON KIDANE, THE CULTURE OF INTERNATIONAL ARBITRATION (2017). 90 See THIRLWAY, supra note 50, at 10–13. See generally ANDREA MARCO STEINGRUBER, CONSENT IN INTERNATIONAL ARBITRATION (2012).

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UN Charter recognizes that states have the option to delegate the settlement of international disputes to adjudicative bodies, but also that they can resort to other peaceful solutions, including negotiation, mediation, resort to regional agencies or arrangements, etc.91 Domestic arbitration laws and institutional arbitration rules similarly acknowledge that private parties are free to opt for commercial arbitration over other means of dispute settlement such as mediation or litigation in domestic courts.92 In contrast with domestic legal systems, where courts have protection—in democracies at least—by virtue of their status and position in the government structure, international courts and tribunals operate in a decentralized system and depend on the will of their very own architects.93 Through expressed terms in the constitutive instruments of international courts and tribunals, disputing parties, both public and private, can circumscribe the jurisdiction of an adjudicative body, the substantive law it may apply, and some inherent powers it would otherwise hold.94 This was recognized by the ICJ in the Nottebohm case, where the Court found that an international tribunal had an inherent power to determine its own jurisdiction “in the absence of agreement to the contrary.”95 In practice, states and private parties have increasingly regulated the framework for the judicial and arbitral settlement of international disputes in the last few years—through, for instance, elaborate rules of adjudication and codes of conduct for

91

U.N. Charter art 33, ¶ 1. Richard H. Kreindler & Thomas Kopp, International Commercial Arbitration, in MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW ¶¶ 2, 13–17 (2013). 93 See Pellet, supra note 52, ¶ 5; JAMES CRAWFORD, BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL LAW ch. 31 (8th ed. 2012). 94 Shelton, supra note 38, at 542–43. However, party consent is subject to mandatory rules in international arbitration (Mayer, supra note 84). 95 Nottebohm (Liech. v. Guat.), Preliminary Objections, 1953 I.C.J. 111, ¶¶ 119–20 (Nov. 18). 92

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decision makers—and have thus constrained the relative autonomy of international courts and tribunals.96 Against this backdrop, one extreme view posits that international courts and tribunals are emanations of the states and private parties who create them and who have full control over their functions and powers, and that these adjudicative bodies established by constitutive instruments have no inherent powers or could have none.97 Along that line of thought, Professor Thirlway, for instance, has been especially skeptical about the inherent powers of the ICJ. He believes the Court’s incidental jurisdiction—based on its inherent powers—only amounts to deciding whether to exercise its jurisdiction or not. To him, jurisdiction is “not . . . a general property vested in the court or tribunal . . . [but] the power, conferred by the consent of the parties, to make a determination on specified disputed issues which will be binding on the parties because that is what they have consented to.”98 Thus, the exercise of inherent powers can not restrict the notion of consent. Another line of thought is that Professor Thirlway overemphasizes the consensual character of international adjudication. The notion of consent has never been entirely respected in international law, specifically because “international courts and tribunals have always benefited from an incidental jurisdiction.” 99 Professor Briggs explained that the incidental

96

See, e.g., Comprehensive Economic and Trade Agreement, Can.-E.U., Oct. 30, 2016. Contra UNCITRAL Model Law on International Commercial Arbitration, G.A. Res. 61/33, U.N. Doc. A/61/33 (Dec. 4, 2006), G.A.O.R Supp (No. 17), U.N. Doc. A/40/17 (June 21, 1985), as amended in 2006, at 56 (new Art. 17 gives arbitrators extensive power to order interim measures and issue preliminary orders). 97 Shelton, supra note 38, at 542–43. Professor Shelton refers to the position of Advocate General Warner in a case before the European Court of Justice, where he made the following comments about the powers of the European Commission: “A body that is created by a legal instrument does not have ‘inherent’ powers. It has only the powers that are conferred on it by that instrument, either expressly or by necessary implication” (quoting Case 792/79R, Camera Care Ltd. v. Comm’n, 1980 ECR 119, at 135 (A.-G. Warner, Separate Opinion)). 98 HUGH THIRLWAY, THE LAW AND PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE: FIFTY YEARS OF JURISPRUDENCE 693 (2013). Professor Thirlway also accepts the court’s inherent power “‘to interpret the submissions of the parties’ in order to ‘isolate the real issue in the case and to identify the object of the claim’, asserted by the Court in the Nuclear Test cases.” Id. (citing Nuclear Tests (Austl. v. Fr.), 1974 I.C.J. 253 ¶ 29). 99 Pellet, supra note 52, ¶ 24

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jurisdiction of the ICJ should be seen in light of the inherent powers the Court may use— regardless of the consent of states—in support of the exercise of its principal jurisdiction, for example, in regard to the power to determine its own jurisdiction, the indication of provisional measures, the power to grant remedies, and the interpretation of judicial decisions.100 It is correct that international courts and tribunals cannot exercise powers, including those that would normally be regarded as inherent, expressly removed by their constitutive instruments and procedural rules. However, international law can impose basic limitations in certain circumstances—which will be examined below—on what states and private parties can agree to when they create an adjudicative body, which would prevent them from restricting or taking away typical inherent powers in accordance with international law. This principle finds its clearest expression in commercial and investment arbitration. In these fields, the New York Convention and the ICSID Convention, among others, provide that the proceedings and resulting award must respect the rules of international due process to be enforceable.101 International law thus prohibits restricting or taking away typical inherent powers that are essential to ensuring due process.102 Beyond international arbitration, when states refer a particular type of dispute to judicial settlement—as the term is understood in international law103—, then they have to provide basic

100

Alexander Orakhelashvili, Judicial Competence and Judicial Remedies in the Avena Case, 18 LEIDEN J. INT’L L. 31, n.17 (2005) (citing Herbert W. Briggs, The Incidental Jurisdiction of the International Court of Justice as Compulsory Jurisdiction, in VÖLKERRECHT UND RECHTLICHES WELTBILD: FESTSCHRIFT FÜR ALFRED VERDROSS 87, 95 (Friedrich von der Heydte et al. eds., 1960)). 101 Moses, supra note 11, ¶¶ 21–22. See, e.g., Convention on the Recognition and Enforcement of Foreign Arbitral Awards, art. V(1)(b), Jun. 6, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38. For a discussion of numerous cases, see Dirk Otto & Omaia Elwan, Article V(2), in HERBERT KRONKE ET AL., RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS: A GLOBAL COMMENTARY ON THE NEW YORK CONVENTION 345 (2010). 102 On due process in arbitration, see Lucy Reed, Ab(use) of due process: sword vs. shield, 33 ARB. INT’L 361 (2017). 103 The distinction between “arbitration” and “judicial settlement” has been entrenched in a number of treaties and constitutions of international organizations. See PHILIPPE COUVREUR, THE INTERNATIONAL COURT OF JUSTICE AND THE EFFECTIVENESS OF INTERNATIONAL LAW 18 (2016). See also Cesare Romanò et al., Mapping International Adjudicative Bodies, the Issues, and Players, in THE OXFORD HANDBOOK OF INTERNATIONAL ADJUDICATION 3, 9

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rule of law guarantees. As Professor Shelton has observed, “the control that states exercise cannot exceed certain limits if they intend to maintain the judicial nature of the institution.”104 These limits are the essential character of international adjudication described above.105 It is true that states are not required to resort to judicial settlement or international arbitration.106 But once they do, they must relinquish parts of their sovereign powers and abide by the rule of law so to have a judicial process.107 What consequences would follow, then, from states’ attempts to establish an adjudicative body while restricting its inherent powers in a way that comprises due process? The most likely response is that the process simply does not amount to judicial settlement, but rather would be negotiation, conciliation, or resort to regional agencies or arrangements, as defined and authorized by Article 33 of the UN Charter.108 Following from this position is the argument that the concept of international due process limits in part state’s ability to restrict or take away typical inherent powers of international courts

(Cesare Romanò et al. eds., 2014) (“what differentiates adjudicative bodies from expert and sundry quasi-judicial bodies is the ability to issue binding rulings.”). 104 Shelton, supra note 38, at 543. 105 Pellet, supra note 52, para. 25. 106 For instance, the United Nations Compensation Commission operated perfectly well despite its unusual mandate. However, it does not really qualify as a judicial process. See Report of the Secretary-General Pursuant to Paragraph 19 of Security Council Resolution 687 (1991), U.N. Security Council, 46th Sess., U.N. Doc. S/22559 (1991) ¶ 20 (“[t]he Commission is not a court or an arbitral tribunal before which the parties appear; it is a political organ that performs an essentially fact-finding function of examining claims, verifying their validity, evaluating losses, assessing payment and resolving disputed claims. It is only in this last respect that a quasi-judicial function may be involved.”) (emphasis added). 107 Perhaps states can withdraw their consent and then there will be no judicial settlement or international arbitration, but these processes will not occur on terms that they impose, such as no due process, no independent and impartial adjudicators, etc. See generally Romanò et al., supra note 103, at 5. See also Alec Stone Sweet & Giacinto Della Cananea, Proportionality, General Principles of Law, and Investor-State Arbitration: A Response to Jose Alvarez, 46 N.Y.U. J. INT’L L. & POL. 911, 943–944 (2013–2014) (“At the heart of due process is the idea that adjudication cannot be considered legitimate if it does not prevent arbitrariness from the standpoint of the parties. Indeed, at this point in time, the rule of law requires that every participant in a court proceeding possess rights to due process. These rights, the product of case law, are enshrined as general principles.”) (footnote omitted). 108 For examples of each method, see Christian Tomuschat, Article 33, in I BRUNO SIMMA ET AL., THE CHARTER OF THE UNITED NATIONS: A COMMENTARY 1069, 1076–1081 (3d ed. 2012).

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and tribunals.109 To be clear, the requirements of international due process do not emanate from any policy-oriented understanding of international law or soft law, but rather from a legal positivist perspective and hard law,110 namely general principles of law.111 As early as the middle of the 20th century, there existed “a rudimentary code of principles of ‘due process,’ i.e., certain minimum standards in the administration of justice of such elementary fairness and general application in the legal systems of the world that they have become international legal standards.”112 Messrs. Kotuby and Sobota explain that general principles of law and rules of international due process establish certain requirements in international law, such as judicial independence and impartiality, procedural equality and the right to be heard, and the principle of res judicata.113 109

Contra THIRLWAY, supra note 98, at 693ff (arguing that states can create whatever institutions they want— or none at all). This position does not in itself address the point we are making. Certainly states do not have to create a court or tribunal, but once they do, that entity must have certain powers to fulfill the judicial function – to be a court or tribunal. 110 On classical positivism, see Bruno Simma & Andreas L. Paulus, The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View, 93 AM. J. INT’L L. 302, 304 (1999) (“Law is regarded as a unified system of rules that, according to most variants, emanate from state will. This system of rules is an ‘objective’ reality and needs to be distinguished from law ‘as it should be.’ Classic positivism demands rigorous tests for legal validity. Extralegal arguments, e.g., arguments that have no textual, systemic or historical basis, are deemed irrelevant to legal analysis; there is only hard law, no soft law.”). 111 Professor Hirsch notes that “proponents of the voluntarist/positivist approach to international law seeking to base international legal rules on states’ consent tend to under-evaluate the role of general principles as a source of international law” (citations omitted). See Moshe Hirsch, Sources of International Investment Law, in INTERNATIONAL INVESTMENT LAW AND SOFT LAW 9, 22 (Andrea K Bjorklund & August Reinisch eds., 2012). General principles of law, however, are complementary rules to be applied when treaties or custom is silent on the matter at hand (id. at 35). In this way, they may be superior to other sources of international law listed in Article 38 of the ICJ Statute. See BIN CHENG, GENERAL PRINCIPLES OF LAW, AS APPLIED BY INTERNATIONAL COURTS AND TRIBUNALS 383 (1953). 112 Wolfgang Friedmann, The Uses of “General Principles” in the Development of International Law, 57 AM. J. INT’L L. 279, 290 (1963) (emphasis in original). 113 CHARLES T. KOTUBY & LUKE A. SOBOTA, GENERAL PRINCIPLES OF LAW AND INTERNATIONAL DUE PROCESS: PRINCIPLES AND NORMS APPLICABLE IN TRANSNATIONAL DISPUTES ch. 3 (2017). See id at xi: The “general principles” were seen as a necessary link between the developed systems of municipal law and the inchoate system of international justice. They provided a positive law footing upon which a system of international justice could function and a means to bind parties to basic juridical concepts to which no one could object, even if they had not been codified in the “law of nations.” By design, this was not natural law or equity, to which the earlier claims commissions had resorted, but the determination that certain concrete legal principles obtaining in virtually all legal systems should also apply in the emerging international system. It was believed that a legal principle common to domestic legal systems across the globe would have the legitimacy and clarity to serve as a binding source of international law.

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This due process standard was meant to apply primarily to the assessment of domestic courts against international law.114 But one can also argue that the concept of international due process has been relatively slowly extended to international law as it moved from a system of brute force to one where peaceful means of dispute settlement are preferred and respected.115 Professor Cheng, for instance, believed that the core legal rules of law common to domestic jurisdictions around the world that he identified in his seminal 1953 contribution on general principles of law were applicable to international courts and tribunals as well. He relied on many examples, including on the findings of an arbitral tribunal which noted that a body with international law aspects should follow a judicial procedure “in the course of which both parties are heard.” 116 Moreover, contemporary efforts to codify principles of transnational civil procedure, including international due process, have arguably established “by their source, formulation and content . . . a recognized category of transnational law.”117 In addition, numerous elements support the argument that international due process equally applies to international to courts and tribunals. First, logic suggests that certain type of activities should follow a judicial process to accord with international law. For instance, should See generally FABIÁN RAIMONDO, GENERAL PRINCIPLES OF LAW IN THE DECISIONS OF INTERNATIONAL CRIMINAL COURTS AND TRIBUNALS (2008). 114 KOTUBY & SOBOTA, supra note 113, at xiv (2017) (“this book is largely dedicated to the general principles of law applied to private conduct, including the substantive principles relating to state interaction with private parties and the procedural norms governing the adjudication of disputes arising from this interaction.”). 115 See MAY, supra note 56, ch. 2. See also ANDREW CLAPHAM, BRIERLY’S LAW OF NATIONS: AN INTRODUCTION TO THE ROLE OF INTERNATIONAL LAW IN INTERNATIONAL RELATIONS 392 (2012) (noting that “the methods of peaceful settlement arise against a background of the possibility of countermeasures. In the past, and in previous editions of this book, these countermeasures were referred to under the headings reprisals and retorsion; and these topics were included in the chapter on the use of force. Today, war and the use of force are not permitted as responses to violations of international law.”). 116 CHENG, supra note 111, at 257–58 (this was the Greco-Bulgarian Mixed Arbitral Tribunal in the Arakas [The Georgios] Case [1927] reviewing the decision of a Bulgarian Military Commission sitting as a prize court) (footnote omitted). 117 H. Patrick Glenn, The Ali / Unidroit Principles of Transnational Civil Procedure as Global Standards for Adjudication?, 9 UNIF. L. REV. 829, 843 (2004). See AMERICAN LAW INSTITUTE & UNIDROIT, ALI/UNIDROIT PRINCIPLES OF TRANSNATIONAL CIVIL PROCEDURE (2006) (Courts and tribunals must “ensure equal treatment and reasonable opportunity for litigants to assert or defend their rights.”, princ. 3.1; “The parties have the right to submit relevant contentions of fact and law and to offer supporting evidence.”, princ. 5.4).

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an international tribunal reviewing the independence of a domestic court not itself satisfy at the minimum basic guarantees of independence? On the international plane, the application of due process means that a decision cannot be made without an independent judiciary taking into account the arguments of each party.118 To take another example, should someone be sentenced to jail by an international tribunal without benefiting from due process? “Among these basic principles of due process are the principles that no one shall be subjected to unlimited arrest or detention without judicial trial, that there shall be no identity between prosecutor and judge, and that no condemnation shall occur without the accused being given a fair opportunity to be heard.”119 Second, there is a developing practice common to international courts and tribunals with regard to international due process that has implications for the inherent powers of international courts and tribunals. Chester Brown, for one, has devoted an entire monograph—A Common Law of International Adjudication—to analyze key issues relating to procedure of these courts and tribunals, and found relevant international jurisprudence to demonstrate that there is sufficient commonality to establish general principles of law on procedure.120 Similar conclusions can be drawn about the independence of international courts and tribunals. Any examination of judicial independence of an adjudicative body needs to acknowledge the particularities of that body in terms of structure, subject matter, applicable law, parties, resources, etc. However, “it is both possible and desirable to identify certain common core guidelines for judicial independence applicable to all international judges, regardless of the tribunal on which they sit. Indeed, close

118

Dombo Beheer BV v. Netherlands, ECtHR, App. No. 1448/88, Merits and Just Satisfaction, ¶ 33 (Oct. 27,

1993).

119

Friedmann, supra note 112, at 290. Brown, supra note 7, at 888–89. Professor Brown emphasizes, howeer, that the use of general principles of law relating to evidence must not contradict the constitutive instruments or procedural rules of the relevant adjudicative body. 120

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scrutiny of existing relevant rules, guidelines, and practices may reveal that agreement on these core criteria already exists.”121 Third, the growing role that individuals play in international law raises the question of whether states are entirely free to affect these newly found subjects of the system without due process,122 at least once they attempt to create an adjudicative body. As the debate surrounding notes of interpretation in investment arbitration exemplifies, international due process might impose limits on states’ power to create or modify the mandate of international courts and tribunals. A difficult scenario is whether treaty parties can adopt a treaty interpretation after a claim has been filed and make it retroactive and thus binding on the arbitral tribunal hearing their case? Article 28 of the VCLT provides a general rule against the retroactivity of treaties in international law, but it also contemplates that states can expressly derogate from this rule when a different intention “appears from the treaty” or “is otherwise established.”123 Thus, a treaty interpretation that affects solely treaty parties appears to accord with international law. In contrast, it is doubtful that it would be lawful when the rights and obligations of non-treaty parties are at play, such as those of third states or arguably of nationals of the treaty parties.124 The crux of the concern has been whether one of the disputants is changing the rules to its benefit during the pendency of a case. The focus has usually been on the rights of the other

121

Ruth Mackenzie & Philippe Sands, International Courts and Tribunals and the Independence of the International Judge, 44 HARV. INT’L L.J. 271, 285 (2003). 122 Andrea K. Bjorklund, Private Rights and Public International Law: Why Competition Among International Economic Law Tribunals Is Not Working, 59 HASTINGS L.J. 241, 244 (2007) (“Individuals . . . need to have recognized status and be treated as third-party beneficiaries of such treaties, rather than as owners of derivative rights . . . .”). 123 Vienna Convention on the Law of Treaties, art. 28, supra note 76. 124 Anthea Roberts, Power and Persuasion in Investment Treaty Interpretation: The Dual Role of States, 104 AM. J. INT’L L. 179, 202 (2010) (observing that “[w]hen the treaty involves the rights and obligations of the treaty parties only, courts and tribunals might adopt a no-harm, no-foul policy, as all of the relevant rights holders have agreed to the amending interpretation. Whether tribunals would or should be as deferential when the treaty creates rights for nontreaty parties is less clear.”).

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disputant rather than on the interplay with tribunal powers, but the latter are worth emphasizing given the potential of the change to interfere with the judicial nature of dispute settlement.125 Two examples of typical inherent powers stand out. First, it would seem problematic to limit the inherent power of international courts and tribunals to conduct the proceedings fairly between the parties. In his seminal book, Professor Cheng found that the “maxim audiatur et altera pars or audi alteram partem . . . may be regarded as a general principle of law translating into practice the fundamental requirement of equality between the parties in judicial proceedings.” 126 Today, mandatory provisions in domestic arbitration laws and institutional arbitration rules, which provide a minimum standard of justice and fairness,127 are examples supporting this point. A main feature of the UNCITRAL Model Law, which has been adopted as the domestic arbitration laws of many countries, is the inclusion of mandatory provisions restricting the autonomy of the parties and arbitrators to ensure fair and efficient proceedings.128 Notably, Article 18 requires that “[t]he parties shall be treated with equality and each party shall be given a full opportunity of presenting his case.”129 French arbitration law, which has its own singular approach to international arbitration, similarly stipulates that “[w]hatever may be the chosen procedure, the arbitral tribunal shall ensure equality among the parties and shall abide by the principle of due process.”130 Finally, Article 17 of the UNCITRAL Arbitration Rules states:

125

Charles H. Brower II, Why the FTC Notes of Interpretation Constitute a Partial Amendment of NAFTA Article 1105, 46 VA. J. INT’L L. 347 (2006). 126 CHENG, supra note 111, at 291. 127 Professor Mayer defines mandatory law as “an imperative provision of law which must be applied to an international relationship irrespective of the law that governs that relationship” (Mayer, supra note 84, at 274). Mandatory rules are typically associated with the practice of commercial arbitration, although there are a few instances where they may apply as well in investment arbitration. Andrea K. Bjorklund, Investment Arbitration, in MANDATORY RULES IN INTERNATIONAL ARBITRATION 233 (George A Bermann & Loukas A Mistelis eds., 2011). 128 Kreindler & Kopp, supra note 92, ¶ 16. 129 UNCITRAL Model Law on International Commercial Arbitration, supra note 96, art. 18. 130 Décret No. 2011-48 du 13 janvier 2011 portant réforme de l'arbitage [Decree No. 2011-48 of January 13, 2011 on Arbitration Reform], JOURNAL OFFICIEL DE LA RÉPUBLIQUE FRANÇAISE [J.O.] [OFFICIAL GAZETTE OF FRANCE], Jan. 14, 2011, art. 1510, unofficial translation of Denis Bensaude available at https://www.bensaudeparis.com/.

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Subject to these rules, the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and that at an appropriate stage of the proceeding each party is given a reasonable opportunity of presenting its case. The arbitral tribunal, in exercising its discretion, shall conduct the proceedings so as to avoid unnecessary delay and expense and to provide a fair and efficient process for resolving the parties’ dispute.131

Professor Wälde explained, “inherent powers is the key concept that provides substance to fulfill the tribunal’s duty to restore, proactively, the equality of arms. Based on this concept, the tribunal has sufficient means at its disposal to safeguard the fairness and integrity of its judicial process.”132 Notwithstanding the principle of equlity, it is possible that within an area of international law, and its corresponding adjudicative body, one party may be granted a procedural advantage over the other. For example, at the IUSCT the United States, but not Iran, could rely on the Security Account.133 In investment arbitration, one party only can initiate a treaty claim, with counterclaims possible in some but not all circumstances.134 Nevertheless, these examples do not undermine the position that limiting the inherent power of a tribunal to conduct the proceedings, once they have commenced, fairly and equally between the parties, would be questionable at best in light of the minimum standard of justice in international law. 135 Second, it would seem problematic—albeit less so—to revoke the inherent power of international courts and tribunals to decide their own jurisdiction, particularly in interstate 131

G.A. Res 65/22, UNCITRAL Arbitration Rules, U.N. Doc. A/RES/65/22, art. 17, (Dec. 6. 2010). Thomas Wälde, “Equality of Arms” in Investment Arbitration: Procedural Challenges, in ARBITRATION UNDER INTERNATIONAL INVESTMENT AGREEMENTS: A GUIDE TO THE KEY ISSUES 161, 182 (Katia Yannaca-Small ed., 2010) (emphasis added). 133 See, e.g., John R. Crook, Applicable Law in International Arbitration: The Iran-U.S. Claims Tribunal Experience, 83 AM. J. INT’L L. 278, 306–7 (1989). 134 See Andrea K. Bjorklund, The Role of Counterclaims in Rebalancing Investment Law, 17 LEWIS & CLARK L. REV. 461 (2013); Jean E. Kalicki, Counterclaims by States in Investment Arbitration, Investment Treaty News (Jan. 14, 2013), http://www.iisd.org/itn/2013/01/14/counterclaims-by-states-in-investment-arbitration-2/. 135 GARY BORN, INTERNATIONAL ARBITRATION: LAW AND PRACTICE 148 (2012). See also Hugh Thirlway, Dilemma or Chimera?--Admissibility of Illegally Obtained Evidence in International Adjudication, 78 AM. J. INT’L L. 622, 626 (1984) (“If states setting up an international body classify it as a court or tribunal, then there is no need for them to spell out in its constitutive document that it is under an obligation to hear both sides before deciding; by calling it a court they are already implicitly giving it that instruction.”). 132

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adjudication where few other alternatives would preserve the judicial independence and impartiality of these bodies. 136 Nowadays, almost every state provides for an independent judiciary in its law, and this consensus has been mirrored on the international plane as well.137 According to Article 10 of the Universal Declaration of Human Rights, “[e]veryone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”138 The Appeals Chamber discussed the difficulty of removing the competence-competence power of an international tribunal in the Tadić case, where it held that the power to decide its own jurisdiction “can be limited by an express provision in the arbitration agreement or in the constitutive instruments of standing tribunals, though the latter possibility is controversial, particularly where the limitation risks undermining the judicial character or the independence of the Tribunal.139 As another tribunal explained in the early days of modern interstate adjudication, this is because the power to determine its jurisdiction is “inseparable from and indispensable to the proper conduct of business,”140 and this power goes at the heart of the judicial mandate.141 In other words, an

136

Contra THIRLWAY, supra note 98 (arguing that the agreement establishing a tribunal could exclude the principle of competence-competence, as it is not a matter of jus cogens). A potential counterexample to our argument is the “tax veto” in the NAFTA, where the home and host states essentially decide upon a particular aspect of competence of the tax claim; the arbitral tribunal can rule on other issues and merits of an alleged improper expropriation under NAFTA Article 1110 only if these States jointly let it. See William W. Park, Arbitration and the Fisc: NAFTA’s “Tax Veto,” 2 CHI. J. INT'L L. 231, 236 (2001). However, in this example the independence of the arbitral tribunal is in no way compromised, as once the states have agreed to submit the dispute to the tribunal they have no further gatekeeping role to play. 137 KOTUBY & SOBOTA, supra note 113, at 168 (footnote omitted). See also CHENG, supra note 111, at 279; Compare Eric A. Posner & John C. Yoo, Judicial Independence in International Tribunals, 93 CALIF. L. REV. 1, 14 (2005) (arguing that “one should be skeptical of the claim that states would submit disputes to judges over whom they have no influence.); with Laurence R. Helfer & Anne-Marie Slaughter, Why States Create International Tribunals: A Response to Professors Posner and Yoo, 93 CALIF. L. REV. 899, 902 (2005) (asking whether “dependent judges really contribute more to the global rule of law or to international cooperation than their independent brethren.”, and answering in the negative). 138 Lauri Lehtimaja & Matti Pellonpää, Article 10, in THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: A COMMENTARY 159 (Asbjørn Eide & Theresa Swinehart eds., 1992). 139 Prosecutor v. Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Int’l Crim. Trib. for Former Yugoslavia) ¶¶ 18–19 (Oct. 2, 1995) (emphasis added). 140 Arbitral Tribunal (Great Britain-United States) Constituted under the Special Agreement of August 18, 1910, in REPORTS OF INTERNATIONAL ARBITRAL AWARDS 3, 135–36 (United Nations Law Collection, 1956)

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inherent power like the principle of competence-competence appears to be immutable in international adjudication—or tough to displace, especially when there is no alternative forum— because of the application of international due process. In any case, international courts and tribunals should adopt a narrow interpretation of provisions like clause contraires or others that aim to limit typical inherent powers: “the more [inherent] powers are necessary to the judicial nature of the tribunal, then the more strictly the limitation or denial is construed so as to preserve the overall intention of the parties.”142

II.

SOURCES AND TYPES OF INHERENT POWERS: THE MULTIPLE AND THE OVERLAPPING One criticism about the very concept of inherent powers is based on the premise that

“international courts can only exercise expressly conferred powers.” 143 Ms. Buteau and Mr. Oosthuizen have written that reliance by courts on inherent powers, because they are nonenumerated powers, “involves the potential for arbitrariness.” 144 Professor Lauterpacht also called on the ICJ to “identify” and “discuss” the contour of its power to issue partial judgments so that stakeholders can properly prepare themselves.145 The exercise of these powers seems more accepted in certain fields, such as investment arbitration, 146 than others, such as international trade law.147 But it remains the case that much of the skepticism and confusion in

(“Whatever be the proper construction of the instruments controlling the Tribunal or of the rules of procedure, there is inherent in this and every legal Tribunal a power, and indeed a duty, to entertain, and, in proper cases, to raise for themselves, preliminary points going to their jurisdiction to entertain the claim.”) 141 CHENG, supra note 111, at 276–77. 142 CARON & CAPLAN, supra note 3, at 828. 143 Brown, supra note 9, at 209–11. See also De Ly et al., supra note 13, at 3. 144 Buteau & Oosthuizen, supra note 6, at 81. 145 Lauterpacht, supra note 7, at 483. 146 Professor Paparinskis states that “[a]ll those involved in ICSID arbitrations support the existence of broad inherent powers” (supra note 37, at 19). Reality, however, is more nuanced. Disputing parties like them when they are helpful to their case—and less when they are not. States, such as United States and Canada, and the European Commission, have all recently sought to rein in tribunal power. 147 Friedl Weiss, Inherent Powers of National and International Courts: The Practice of the Iran-U.S. Claims Tribunal, in INTERNATIONAL INVESTMENT LAW FOR THE 21ST CENTURY: ESSAYS IN HONOUR OF CHRISTOPH

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the case law and scholarship about inherent powers derives from the discomfort with what is perceived as their lack of formal source. Although rule-based inherent powers do not necessarily derive from constitutive instruments, realizing that these instruments play an important role in shaping many inherent powers—expressed inherent powers, discretionary inherent powers, and implied inherent powers—should put these concerns to rest. When properly used, inherent powers enable international courts and tribunals to carry out the choices of states and private parties and can thus be seen as promoting state consent and party autonomy.148 This is brought to light, first, by expressed inherent powers.

A.

Expressed Inherent Powers Constitutive instruments and procedural rules can make express otherwise inherent

powers. Professor Weiss has explained, “[w]hen faced with a possible inherent power, international tribunals, typically, have to deal with two issues: the intent of the parties, usually expressed in some constitutive document, and the necessity for the court to exercise the contemplated inherent power.”149 Certainly, any analysis of sources in international law should start with Article 38 of the Statute of the ICJ, which is widely considered as having general

SCHREUER 185, 185–86 (Christina Binder et al. eds., 2009) (“WTO Members are concerned about the potential accumulation of power by dispute settlement fora, especially the Appellate Body [AB], through the use of ‘inherent powers’; and civil society groups submitting amicus curiae briefs to the AB and to arbitration tribunals respectively are concerned about whether and to what extent these adjudicative bodies make use of their ‘inherent powers’ to balance, in a transparent manner, the interests of governments, corporations, and individuals in a manner conducive to the public good and to broader conceptions of social justice, including human rights.”) (emphasis in original) (footnote omitted). 148 De Ly et al., supra note 13, at 15. 149 Weiss, supra note 147, at 186.

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application to international courts and tribunals.150 This article provides, in relevant part, that the Court shall apply “international conventions.” On several occasions, the ICJ has termed those powers expressly laid down in its Statute as inherent.151 While international conventions tend to play the paramount role in interstate adjudication, the core source of jurisdiction and procedural law in international arbitration is the parties’ agreement. This principle is contemplated, inter alia, by Article II(1) of the New York Convention and Article 7(1) of the UNCITRAL Model Law.152 The ILA Report rightly notes that “[a] tribunal is uniquely shaped by the circumstances under which it is constituted, and the inherent or implied powers it may properly exercise will depend upon the distinct configuration of direction and autonomy produced by the parties’ choices.”153 Inherent powers have been spelled out expressly in constitutive instruments and procedural rules in practice. Although these sources do not refer to the concept of inherent powers themselves, they do in fact spell out powers that can also be viewed as inherent. Very few commentators concede that inherent powers can be expressly set out; in other words, their view is that making them express negates their inherent status.154 Yet, there is no shortage of examples to support the existence of expressed inherent powers. For instance, the rules on

150

CRAWFORD, supra note 93, at 22 (“[Article 38] reflect[s] the previous practice of arbitral tribunals, and [it] is often put forward as a complete statement of the sources of international law.”). For (potentially) additional sources of international law, see THIRLWAY, supra note 50, ch. 1.6. 151 Gaeta, supra note 6, at 363. 152 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, art. II(1), supra note 101 (“Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.”). UNCITRAL Model Law on International Commercial Arbitration, art. 7(1), supra note 96 (“‘Arbitration agreement’ is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.”). 153 De Ly et al., supra note 13, at 6. 154 Lauterpacht, supra note 7, at 476–77.

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competence-competence, 155 interim protection, 156 preliminary objections, 157 and the power to revise judgments and awards 158 are all inherent and expressly set out in the constitutive instruments of international courts and tribunals. Similarly, the rules of procedure of courts and tribunals may expressly outline powers frequently regarded as inherent. Examples of such rules include the ICJ’s 1978 Rules of Court and ICSID’s 2006 Arbitration Rules. Furthermore, the framework of international arbitration depicts the interesting relationship between not one, but many sources of expressed inherent powers. Messrs. Blackaby and Partasides observe, “the best approach when considering the powers of an arbitral tribunal is to look first at the arbitration agreement (including any applicable rules), then at the law governing the arbitration agreement, and finally at the law governing the arbitration (if different).”159 There is a debate in the scholarship as to whether the New York Convention and the lex arbitri are themselves legal bases of inherent powers. Mr. Wachter claims the Convention and domestic arbitration law based on the UNCITRAL Model Law are not sources of inherent powers, but rather that they simply operate as a boundary on an arbitral tribunal’s inherent authority.160 However, as the process of determining the existence and scope of inherent powers

155

See, e.g., Statute of the I.C.J., supra note 28, art. 36, ¶ 6. ICSID Convention, supra note 75, art. 41(1); Décret No. 2011-48 du 13 janvier 2011 portant réforme de l'arbitage [Decree No. 2011-48 of January 13, 2011 on Arbitration Reform], JOURNAL OFFICIEL DE LA RÉPUBLIQUE FRANÇAISE [J.O.] [OFFICIAL GAZETTE OF FRANCE], Jan. 14, 2011, art. 1465 (“The arbitral tribunal has exclusive jurisdiction to rule on objections to its jurisdictional power.”); European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 32(2), Nov. 4, 1950, 312 E.T.S. 5, 213 U.N.T.S. 222, as amended by Protocol No. 11, E.T.S. 155; and Protocol No. 14, C.E.T.S. No. 194, entered into force Sept. 3, 1953 (Protocol No. 11 on Jan. 11, 2014, Protocol No. 14 on Jan. 6, 2010). 156 See, e.g., Statute of the I.C.J., supra note 28, art. 41. ICSID Convention, supra note 75, art. 47; American Convention on Human Rights, art. 63(2), Nov. 22, 1969, 9 LL.M. 673. 157 See, e.g., Statute of the I.C.J., supra note 28, art. 36, para. 6. 158 See, e.g., id. art. 61. ICSID Convention, supra note 75, art. 51. 159 Nigel Blackaby & Constantine Partasides, Chapter 5: Powers, Duties, and Jurisdiction of an Arbitral Tribunal, in REDFERN AND HUNTER ON INTERNATIONAL ARBITRATION 305, 307–9 (2015). 160 Robert Wachter, The Arbitrator and the Arbitration Procedure: On the Inherent Powers of Arbitral Tribunals in International Commercial Arbitration, in AUSTRIAN YEARBOOK ON INTERNATIONAL ARBITRATION 65, 78 (Christian Klausegger et al. eds., 2012).

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amounts to identifying sources of tribunal authority, the lex arbitri must be able to be a source of inherent powers in certain circumstances, even if rarely.161 In spite of the multiple examples to the contrary, the view adopted by the majority of international courts and tribunals and commentators posits that the distinguishing feature of inherent powers is specifically the fact that they are non-enumerated powers. The IUSCT, for instance, endorsed the definition of inherent powers as “those powers that are not explicitly granted to the tribunal but must be seen as a necessary consequence of the parties’ fundamental intent to create an institution with a judicial nature.”162 The first finding of the 2014 ILA Report stated that international arbitral tribunals “have powers that are inherent and implied . . . [i]n addition to the powers expressly conferred by the parties’ agreement and by the laws and rules governing the arbitration.”163 Professor Lauterpacht, for his part, drew a dividing line between the inherent powers of the ICJ as defined in the Nuclear Test case and the powers listed in its Rules under the heading “Incidental Proceedings”: interim protection, preliminary objections and intervention are expressly covered by provisions in the Statute which provide specific authority for the Court to deal with them. Although it would no doubt be the case that, even in the absence of statutory provision, the Court would be entitled to deal with these matters in the exercise of its “inherent” jurisdiction, the fact that they are specifically covered in the Statute means that it is unnecessary to treat them under th[e] heading [of inherent powers].164

Once a power was expressly set out in the Statute or Rules, Professor Lauterpacht believed, reliance on the relatively controversial concept of inherent powers was unnecessary, if not undesirable. These comments are somewhat to be expected given that the vast majority of 161

De Ly et al., supra note 13, at 19. Iran v. U.S., Decision No. DEC 134-A3/A8/A9/A14/B61-FT ¶ 59 (July 1, 2011) (Iran–U.S. Cl. Trib.) (citing DAVID D. CARON ET AL., THE UNCITRAL ARBITRATION RULES: A COMMENTARY 915 (2006)). 163 De Ly et al., supra note 13, at 20. The 12 March 2012 draft by the Rapporteurs had described inherent powers “as those powers of a tribunal that are not expressly provided for or denied by the sources of arbitral power, but which the tribunal has in order to perform its function and fulfill its mandate” (Report of the International Law Association, country report of England) (on file with the authors). 164 Lauterpacht, supra note 7, at 476–77 (footnote omitted). 162

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inherent powers were indeed non-enumerated powers, especially in the nascent days of modern international adjudication where the rules and procedure found in constitutive instruments and procedural rules were often extremely rudimentary.165 These apparently conflicting views—inherent powers can be enumerated vs. inherent powers are by definition not enumerated—can be reconciled. This is because inherent powers can be both. The above examples demonstrate that necessary judicial powers have been explicitly set out in constitutive instruments and procedural rules. As Ms. Buteau and Mr. Oosthuizen noted, the inherent powers of the ICTY “may be expressed in the Rules, without sacrificing [their] constituted independent existence outside the content of those Rules.” 166 Moreover, two scenarios related to the principle of competence-competence illustrates why still referring to these powers as inherent powers is compelling. The first relates to the way inherent powers may stand the test of time. Professor Moses has written: Powers that may have been viewed as inherent or implied in the past are today frequently expressed as part of the rules chosen by the parties, or are generally considered within the parties’ expectations of what an arbitrator is allowed to do. For example, the concept of competence-competence, which provides that arbitrators can determine their own jurisdiction, was not always as widely accepted as it is today, and parties could dispute whether an arbitrator had such power.167

As the power of international courts and tribunals to decide their own competence increasingly found its way in constitutive instruments in the last two centuries, it would be absurd to claim this power is no longer inherent simply on the basis that it is now expressly provided. Other inherent powers have similarly made their way into treaties, rules, agreements, laws, etc. in the modern era of international adjudication. 168 The second scenario compares the powers of

165

In the domestic context, see Gaeta, supra note 6, at 365. In the international context, see Buteau & Oosthuizen, supra note 6, at 65. 166 Buteau & Oosthuizen, supra note 6, at 80. 167 Moses, supra note 11, para. 16. 168 See, e.g., chapters on interim relief, the taking of evidence, and decisions on costs (in this textbook).

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different courts and tribunals.169 While the ICJ and ICTY arguably have the same power to rule on their competence, it is expressly set out in the constitutive instrument of the former and not in the one of the latter. In the Tadić case, the Appeals Chamber held that while its Statute was silent as to whether it had to power to decide its own competence, it did enjoy such a power in light of a principle of general international law.170 It would be absurd to claim this power is inherent in the ICJ but not in the ICTY.171 As a practical matter tribunals would ordinarily refer to the expressed power; the idea of inherent powers need rarely come into play so long as there is a textual basis for the exercise of power. Yet given our intent to address inherent powers across a range of international tribunals we concluded that omitting “expressed” inherent powers from our list of sources would be inconsistent both with the definition adopted in the previous section and our attempt to set forth universal rules. Moreover, the scope of express powers might not be clearly delineated, and the idea of inherent powers could be resorted to in ascertaining the scope of the express power or in comparing, for example, what an expressed inherent power and a rule-based inherent power might concurrently provide on the same issue. As inherent powers can be expressly set out and come from other sources, this raises the question: in the event of a conflict which one would be superior? One response could be that expressed inherent powers have the upper hand given the primacy of state consent and party 169

See De Ly et al., supra note 13, at 6–7 (“While a tribunal overseeing a dispute governed by sophisticated arbitral rules and detailed curial law may find textual support for a particular action it sees fit to take during the course of an arbitration, another tribunal—operating without similar instruction and guidance in the same measure— might need to predicate the very same action on its implied or inherent authority. A third tribunal, by contrast, may find that same action prohibited by the parties’ arbitration agreement or the set of rules governing its arbitration.”). 170 Prosecutor v. Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Int’l Crim. Trib. for Former Yugoslavia) ¶ 19 (Oct. 2, 1995). In a like manner, Judge Crawford has claimed that just because the constitutive instrument of one international court contains an express power while another does not, this “should not be used to justify, a contrario, a failure to develop necessary or desirable rules of general international law.” James Crawford, International Law as an Open System, in JAMES CRAWFORD, INTERNATIONAL LAW AS AN OPEN SYSTEM: SELECTED ESSAYS 17, 35 [2002]. 171 Buteau & Oosthuizen, supra note 6, at 80.

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autonomy in international adjudication,172 as written sources should trump unwritten ones.173 For example, an expressed inherent power would supplant a rule-based inherent power specifically because treaties supersede general international law.174 A different response would provide that when instruments expressly set out inherent powers, they seemingly only grant powers international courts and tribunals already enjoy. The ICJ has indeed opined that Article 36(6) of its Statute “reflected”—rather than “conferred”—its competence to decide matters concerning its jurisdiction.175 This supported the earlier view expressed by Judge Fitzmaurice in his separate opinion in the Northern Cameroons case, where he noted certain expressed powers in the ICJ Statute were “really an inherent jurisdiction, the power to exercise which is a necessary condition of the Court—or any court of law—being able to function at all.” 176 Professor Weiss has similarly noted, “inherent powers are separate from, if not superior to, the constitutive powers of legislation and international agreements.”177

To sum up, constitutive instruments expressly set out some inherent powers of international courts and tribunals, the framework of international adjudication enables these

172

See infra § I.D. By its very nature, a specific treaty rule must exclude the application between the signatories of any rule of general international law that would otherwise govern the matter. Otherwise, the whole exercise of treaty making would be futile. This idea is reinforced by the doctrine of jus cogens, which is based on the assumption that certain rules of customary law can be ousted while some others cannot. See THIRLWAY, supra note 50, at 133. 174 The ICJ confirmed that “the application of [certain] rules of customary international law . . . could only be operative, at the very most, in the absence of treaty provisions that had the effect of excluding them.” See Dispute regarding Navigational and Related Rights (Costa Rica v. Nicar.), Judgment, 2009 I.C.J. 213 ¶ 35. 175 Legality of Use of Force (Serb. and Montenegro v. Belg.), Preliminary Objections, 2004 I.C.J. 279, ¶ 34 (Dec. 15). See also THIRLWAY, supra note 98 (“The principle of la compétence de la compétence is regarded as universally applicable to international judicial bodies, but is also enshrined in Article 36, paragraph 6, of the Court’s Statute: here the text is merely confirmatory of a power which exists independently of it.”); FITZMAURICE, supra note 30, at 451–57; Brown, supra note 9, at 212. 176 Northern Cameroons (Cameroon v. U.K.), Preliminary Objections, 1963 I.C.J. 15, at 103 (Dec. 2) (Fitzmaurice, J., Separate Opinion). 177 Cf. Weiss, supra note 147, at 191. 173

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documents to do so, and examples from the practice of international courts and tribunals show that states and private parties have in certain circumstances selected this option.

B.

Discretionary Inherent Powers A variation or extension of expressed inherent powers set out in constitutive instruments

and procedural rules is discretionary inherent powers, to which this subsection now turns. In a seminal book, Justice Barak defined judicial discretion as “the power given to a person with authority to choose between two or more alternatives, with each of the alternatives being lawful.”178 He explained that judicial discretion most commonly arises from the absence of textual rules, although textual sources too may bring it about.179 Justice Barak further identified three objects of judicial discretion: facts, the application of norms, and norms themselves. Certainly, the concepts of inherent powers and judicial discretion overlap. In any case, discretionary inherent powers in practice are textual rules which themselves afford decisionmaking power to the tribunal and offer different alternatives.180 Against this backdrop, and in light of the definition of inherent powers articulated in the previous subsection, many discretionary powers can and should be considered inherent powers in international law. For instance, according to Article 44 of the ICSID Convention, “[i]f any question of procedure arises which is not covered by this Section [of the ICSID Convention] or the Arbitration Rules or any rules agreed by the parties, the Tribunal shall decide the question.”181 Article 19 of the ICSID Arbitration Rules also provides that “[t]he Tribunal shall make the

178

AHARON BARAK, JUDICIAL DISCRETION 7 (1989). Id. at 96–101. 180 Moses, supra note 11, ¶ 9 (discretionary powers are when adjudicators are “given specifically given broad discretion to make certain determinations”). See also De Ly et al., supra note 13, at 15 (“[I]t may be possible to find a textual foothold from which to imply the power to take a particular action that could also be justified as an exercise of a tribunal’s discretion over procedure.”). 181 ICSID Convention, supra note 75, art. 44. 179

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orders required for the conduct of the proceeding.”182 Commenting on these provisions, Professor Paparinskis explains that “[d]eciding on questions of procedure necessary for the resolution of the case is simply a roundabout way of describing inherent powers that are necessary for the fulfillment of judicial function.”183 Discretionary powers in constitutive instruments resonate as having an inherent quality since they grant international courts and tribunals an intrinsic and essential degree of control over the application of specific rules.184 In other words, when provisions put forward more than one lawful alternative, international courts and tribunals must possess the inherent power to choose between one of these alternatives. The rationale supporting the existence of these provisions lies in the balancing of considerations and interests that are central to any judicial mandate. For instance, adjudicative bodies in international law generally reach a decision on issues of procedure by using their discretion in evaluating competing interests, such as the opportunity to present one’s case vs. the desirability of having an expeditious process (but still within the confines of due process). Discretionary inherent powers are primarily associated with the authority of international courts and tribunals to oversee their proceedings and regulate their own procedure. These powers have also been referred to as “residual powers,” “residual procedural powers,” and “general procedural powers.”185 In international arbitration, virtually all applicable sources recognize that tribunals have a large degree of procedural flexibility. Examples of such sources include Article 17 of the UNCITRAL Arbitration Rules, Article 18 of the UNCITRAL Model Law, and

182

ICSID Arbitration Rules, art. 19, entered into force Apr. 10, 2006. Paparinskis, supra note 37, at 20 (emphasis added) (footnote omitted). 184 See De Ly et al., supra note 13, at 15 (footnotes omitted). 185 Paparinskis, supra note 37, at 20 (footnotes omitted). 183

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Article 44 of the ICSID Convention.186 Article 16(1) of the American Arbitration Association International (ICDR) Rules similarly states that “[s]ubject to these Rules, the tribunal may conduct the arbitration in whatever manner it considers appropriate, provided that the parties are treated with equality and that each party has the right to be heard and is given a fair opportunity to present its case.” If anything, the powers of international courts and tribunals over procedure are even larger in interstate adjudication. For instance, the ICTY Rules of Procedure and Evidence can—and regularly have been—amended following the adoption by the majority of the permanent judges composing the tribunal.187 Discretionary inherent powers regulate more than just the procedure of international courts and tribunals. They play a role in many other aspects of international adjudication, including “merits” or substantive issues. Three examples in investment arbitration are particularly telling. First, tribunals can have discretion on the question of applicable law.188 In CME v. Czech Republic, the applicable law clause in the treaty was broadly worded.189 The tribunal recognized that this choice of law clause granted it discretion without according any precedential ranking to the systems of law identified in the clause, and, accordingly, that there was no ranking of applicable sources of law or exclusivity in the application of these laws.190

186

UNCITRAL Arbitration Rules, supra note 131, art. 17; UNCITRAL Model Law on International Commercial Arbitration, supra note 96, art. 18; ICSID Convention, supra note 75, art. 44. 187 ICTY Rules of Procedure and Evidence, arts. 6(A)., Feb. 11, 1994, IT/32/Rev.50. 188 Moses, supra note 11, ¶ 21.20 (“[E]ven without specifically stated powers, a tribunal is generally considered to have the authority to determine the applicable law, if it has not been chosen by the parties.”). See, e.g., Décret No. 2011-48 du 13 janvier 2011 portant réforme de l'arbitage [Decree No. 2011-48 of January 13, 2011 on Arbitration Reform], JOURNAL OFFICIEL DE LA RÉPUBLIQUE FRANÇAISE [J.O.] [OFFICIAL GAZETTE OF FRANCE], Jan. 14, 2011, art. 1511 (“The arbitral tribunal shall decide the dispute in accordance with the rules of law chosen by the parties, failing which, in accordance with the rules of law the tribunal considers appropriate . . . .”); ICSID Convention, supra note 75, art. 42(1) (“The Tribunal shall decide a dispute in accordance with such rules of law as may be agreed by the parties. In the absence of such agreement, the Tribunal shall apply the law of the Contracting State party to the dispute [including its rules on the conflict of laws] and such rules of international law as may be applicable.”). 189 CME v. Czech Republic, Final Award, UNCITRAL, ¶ 402 (Mar. 14, 2003) (“[t]he Arbitral Tribunal shall decide on the basis of the law, taking into account in particular though not exclusively . . . .”). 190 Id.

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Second, the fair and equitable treatment (“FET”) standards in approximately 3,000 BITs afford relatively broad discretion to tribunals.191 Even in the NAFTA context, where the treaty Parties have sought to limit tribunal discretion by tethering FET to the international minimum standard at customary international law, tribunals have diverged over what customary international law entails.

In Glamis Gold the tribunal found the contention that BIT

jurisprudence has converged with customary international law in the area of FET to be an overstatement,192 whereas in Merrill & Ring the award posits a two-scenario approach to FET, with one standard appearing in the human rights context and the other in the commercial and business context.193 More generally, the FET standard confers a great deal of discretion on a tribunal entrusted with applying an indeterminate standard to different factual contexts. Third, the requirement in investment treaties to compensate investors for a state’s violation of substantive protections bestows discretion on tribunals to estimate the correct compensation so long as it explains the process leading to this estimation.194 In all of these examples, discretionary inherent powers represent the capacity of tribunals to choose between one of the available alternatives, subject, of course, to the applicable conditions for the set-aside, annulment, and enforcement of awards.195 But, as is the case with expressed inherent powers, can discretionary inherent powers come from separate sources? Put another way, would international courts and tribunals have 191

Investment Policy Hub, Mapping of IIA Content, available at http://investmentpolicyhub.unctad.org/IIA (compare qualified with unqualified FET standards in the database). 192 Glamis Gold, Ltd. v. U.S., Final Award, UNCITRAL, ¶ 609 (June 8, 2009). 193 Merrill & Ring Forestry L.P. v. Canada, Award, UNCITRAL, ICSID Administrated, ¶ 201–10 (Mar. 31, 2010) (In the first track, “the minimum standard became part of the international law of human rights, applicable to aliens and nationals alike”, while a second track “is also discernible in so far [as] it concerns business, trade and investment”; the standard in the second track “protects against all such acts or behavior that might infringe a sense of equity, fairness and reasonableness.”). 194 See, e.g., Tidewater Investment SRL and Tidewater Caribe (C.A. v. Bolivarian Republic of Venez.), Decision on Annulment, ICSID Case No. ARB/10/5, ¶ 192 (Dec. 27, 2016). See generally BORZU SABAHI, COMPENSATION AND RESTITUTION IN INVESTOR-STATE ARBITRATION: PRINCIPLES AND PRACTICE ch. 5–7 (2011). 195 UNCITRAL Model Law on International Commercial Arbitration, supra note 96, arts. 34-35; ICSID Convention, supra note 75, arts. 52-55.

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discretionary inherent powers even in the absence of textual reference to them in their constitutive instruments and procedural rules? This seems highly likely, at least with respect to their powers over the conduct of the proceedings, where a rule-based inherent power would equally provide this authority.196 Commenting on Article 44 of the ICSID Convention, Professor Schreuer notes that “[a]n ICSID tribunal’s power to close gaps in the rules of procedure is declaratory of the inherent power of any tribunal to resolve procedural questions in the event of lacunae.”197 The ILA Report opines, “[a] tribunal proceeding without the advantage of . . . a provision [granting discretionary procedural powers to the tribunal] cannot be said to lack the practical power to carry its mandate to completion.”198 Similarly, Judge Shahabuddeen took account, in his dissenting opinion in the Kanyabashi case, of “the inherent competence of a judicial body, whether [engaged in]civil or criminal processes, to regulate its own procedure in the event of silence in the written rules, so as to assure the exercise of such jurisdiction as it has, and to fulfil itself, properly and effectively, as a court of law.”199 These discretionary inherent powers apply in the absence of contrary instructions or constraints expressed by states and private parties: “[a]s such, they may be seen as a default or background authority that the parties’ elections may supersede.” 200 For instance, the WTO Appellate Body has noted with respect to inherent powers that, “[a]lthough panels enjoy some discretion in establishing their own working procedures, this discretion does not extend to

196 197

See infra § II.D. CHRISTOPH SCHREUER ET AL., THE ICSID CONVENTION: A COMMENTARY 688 (2d ed. 2009) (first emphasis

added). 198 199

De Ly et al., supra note 13, at 16. Prosecutor v. Kanyabashi, Case No. ICTR-96-15-A, Dissenting Opinion of Judge Shahabuddeen, 17 (June 3,

1999).

200

De Ly et al., supra note 13, at 16. See also Nottebohm (Liech. v. Guat.), Preliminary Objections, 1953 I.C.J. 111, at 119–20 (Nov. 18).

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modifying the substantive provisions of the DSU. . . Nothing in the DSU gives a panel the authority either to disregard or to modify . . . explicit provisions of the DSU.”201 Yet, expressed and discretionary provisions in constitutive instruments and procedural rules are not the only source of inherent powers in international adjudication. Rather, inherent powers that are implicit and those that derive from accepted rules are the most common. Drafters of constitutive instruments have not, and could not have, envisaged every possible power of international courts and tribunals.202 These courts and tribunals fill legal gaps or lacunae in these documents through custom, general principles of law, and judicial decisions.203 They have also relied on the exercise of powers that are not conferred on them expressly by their instruments and rules.204 The next section examines these implied powers.

C.

Implied Inherent Powers While the express and discretionary inherent powers of international courts and tribunals

are spelled out in the specific provisions of their constitutive instruments, the legal basis of implied inherent powers derives from the effective interpretation of these instruments as a whole and the intent of the drafters.205 For instance, Professor Lauterpacht explained that the inherent powers of the ICJ must presumably come “from the overall power of the Court to operate, as

201

Appellate Body Report on India – Patent Protection for Pharmaceutical and Agricultural Chemical Products ("India — Patents (US)"), WT/DS50/AB/R, adopted January 16, 1998, ¶ 92. 202 Buteau & Oosthuizen, supra note 6, at 65. 203 Highly critical of the concept of lacunae in both domestic and international law is Professor Douglas. ZACHARY DOUGLAS, THE INTERNATIONAL LAW OF INVESTMENT CLAIMS 130 (2009) (stating “[o]nly adherence to an extreme form of legal positivism permits the discovery of lacunae within a functional legal system.”). While the position of Professor Douglas is extreme, it is true that some decision makers may be overly keen to see legal gaps even when this is unnecessary or unwarranted. 204 Brown, supra note 7, at 832; Gaeta, supra note 6, at 367 (“The doctrine of inherent powers thus constitutes an appropriate legal construct for enabling international judicial bodies to fill the lacunae in their constitutive instruments”). 205 Paparinskis, supra note 37, at 14. These implied inherent powers are derived as well from the ordinary and special meaning of the terms “court” and “tribunal” in constitutive instruments and procedural rules.

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established generally by the Statute.”206 Professor Gaeta also posits that the exercise of inherent powers was clearly envisaged by the constitutive instruments of international criminal courts.207 This source of inherent powers “essentially rests on the canon of treaty interpretation known as effet utile, according to which the terms of treaties . . . are to be interpreted so as to make them effective rather than ineffective.”208 Implied inherent powers are formally introduced into the interpretative process by way of Article 31(1) of the VCLT, using “good faith and the objects and purposes of the treaty” to “enable treaty to have appropriate effect.”209 In commercial arbitration, the UNIDROIT Principles of International Commercial Contracts tell us they should be incorporated by reference into the “the nature and purpose of the contract,” in order to “give effect to all terms rather than to deprive some of them of effect.”210 International courts and tribunals have inherent powers by implication to ensure the effective exercise of their jurisdiction and mandate. Professors Sorel and Eveno note that several courts and tribunals have become ardent proponents of the teleological or ends-focused aspect of Article 31(1) of the VCLT when interpreting their constitutive instruments.211 They claim that effectiveness has been used “widely in a simple appeal to logic” or “as a lever towards a broader interpretation.”212 The LaGrand case is a good example. There the ICJ had to decide whether it had the power to order binding provisional measures. Given that “[t]he context in which Article 41 has to be seen within the Statute is to prevent the Court from being hampered in the exercise

206

Lauterpacht, supra note 7, at 477 (footnote omitted). Gaeta, supra note 6, at 358. 208 Brown, supra note 7, at 839 (citing RICHARD K. GARDINER, TREATY INTERPRETATION 159–161 (2008); HERSCH LAUTERPACHT, THE DEVELOPMENT OF INTERNATIONAL LAW BY THE INTERNATIONAL COURT 227–228 (1958)). 209 Paparinskis, supra note 37, at 15; citing International Law Commission, Draft Articles on the Law of Treaties with Commentaries, in 2 Y.B. INT'L L. COMM'N 1966 112, 219 (1967). 210 UNIDROIT Principles of International Commercial Contracts, supra note 76, arts. 4.4-4.5. 211 Jean-Marc Sorel & Valérie Boré Eveno, 1969 Vienna Convention—Art 31, in THE VIENNA CONVENTIONS ON THE LAW OF TREATIES: A COMMENTARY 804, 831 (Olivier Corten & Pierre Klein eds., 2011). 212 Id. 207

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of its functions because the respective rights of the parties to a dispute before the Court are not preserved,” the Court reached the conclusion—based on the principle of effectiveness—that its provisional measures had mandatory force.213 Although implied inherent powers derive from no one specific provision in the constitutive instruments, key provisions predominantly shape these powers. These are usually provisions related to the exercise of the primary jurisdiction of international courts and tribunals. For example, Article 1 of the Rome Statute states: An International Criminal Court . . . is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.214

In the WTO context, Article 11 of the Dispute Settlement Understanding describes the function of panels, noting in relevant part that “[t]he function of panels is to assist the [Dispute Settlement Body] in discharging its responsibilities under this Understanding and the covered agreements.”215 More general or residual provisions also influence implied inherent powers. To take once more the example of the International Criminal Court, Article 4(2) of the Rome Statute states that the Court “may exercise its functions and powers, as provided in th[e] Statute, on the territory of any State party, and, by special agreement, on the territory of any other state.” This provision should be interpreted as meaning that the Court is authorized to exercise inherent

213

LaGrand (Ger. v. U.S.), 2001 I.C.J. 466, ¶¶ 102, 109. Rome Statute of the International Criminal Court (July 17, 1998), U.N. Doc. A/CONF.183/9 of July 17, 1998, entered into force July 1, 2002. 215 Understanding on Rules and Procedures Governing the Settlement of Disputes (Apr. 15, 1994), Marrakesh Agreement Establishing the World Trade Organization, Annex 2, art. 1, THE LEGAL TEXTS: THE RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS 354 (1999), 1869 U.N.T.S. 401, 33 I.L.M. 1226 (1994). 214

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powers even if not expressly laid down in its Statute.216 For its part, Article 42 of the ICC Arbitration Rules indicates that “[i]n all matters not expressly provided for in the Rules, the Court and the arbitral tribunal shall act in the spirit of the Rules and shall make every effort to make sure that the award is enforceable at law.”217 Analyzing this article, a commentator notes: When referring to the spirit of the ICC Rules, at least five guiding principles come immediately to mind: (i) party autonomy. Where there is mutual agreement by the parties on issues not expressly covered by the Rules, such agreement will normally prevail over other considerations; (ii) fair and equal treatment of the parties; (iii) impartiality of the arbitral process; (iv) efficiency of the arbitral process; and (v) limited state court intervention.218

The purpose of this article is thus to provide guidance—on the basis of implications drawn from the rules as a whole—to both the ICC Court and arbitrators whenever an issue arises in the conduct of the arbitration that the rules do not address. Despite their similitude, it is best not to conflate the implied inherent powers of international courts and tribunals and the doctrine of implied powers in the law of international organizations because they each have developed in their own particular context.219 The former, again, refers to inherent powers which are implied or deduced from the effective interpretation of the constituent instruments of courts and tribunals. The doctrine of implied powers, for its part, has its origin in the law of international organizations and was developed chiefly by the ICJ in the mid 20th century. The main authority on the topic is the advisory opinion of the ICJ in the Reparation for Injuries case, where the Court noted that “[u]nder international law, the

216

Cf. Gaeta, supra note 6, at 372 (arguing the provision authorizes the application of general principles of inherent powers). 217 I.C.C. Arbitration Rules, art. 42, entered into force Mar. 1, 2017. 218 Michael Buhler, The Arbitration Rules of the International Chamber of Commerce, in PRACTITIONER’S HANDBOOK ON INTERNATIONAL COMMERCIAL ARBITRATION ¶ 15.1250 (Frank-Bernd Weigand ed., 2d ed. 2009) (footnotes omitted). 219 There is certainly a lot of confusion surrounding the relationship between inherent powers and implied powers. The ILA Report even “refrain[ed] from formulating definitions as to the concepts of inherent and implied powers of arbitral tribunals” because of what it referred to as “conceptual difficulties” with both concepts. See De Ly et al., supra note 13, at 14.

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Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication, as being essential to the performance of its duties.”220 Professor Gaeta notes compelling reasons to refrain from blindly applying the doctrine of implied powers to international courts and tribunals. The first is that inherent powers have a different function than the doctrine of implied powers, which extends to “expanding the powers of international institutions so as to narrow correlatively those of member States.”221 The doctrine of implied powers is peculiar to the constitutional regime of each international organization. Article 6 of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations provides that “[t]he capacity of an international organization to conclude treaties is governed by the rules of that organization.”222 This reference to the “rules of that organization” is interpreted in that specific setting as being not static, but rather preserving the evolving constitutional regime of each organization.223 The second reason is the case law does not support the use of the doctrine for international courts and tribunals.224 While the doctrine of implied powers itself is not pertinent in international adjudication, inherent powers can derive from constitutive instruments by implication. As Professor Moses writes in the context of international arbitration, “if certain objectives or duties are expressly imposed on the arbitrators, one could imply that they have the authority to take steps to

220

Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 I.C.J. 174, at 182 (Apr. 11). 221 Gaeta, supra note 6, at 363. 222 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, art. 6, Mar. 12, 1986. 223 Nicolas Levrat, 1986 Vienna Convention—Art 6, in THE VIENNA CONVENTIONS ON THE LAW OF TREATIES: A COMMENTARY 117, ¶ 16 (Olivier Corten & Pierre Klein eds., 2011). 224 Gaeta, supra note 6, at 362.

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implement those objectives.” 225 Coming to this realization resolves the confusion in the scholarship about the distinction between implied powers and inherent powers, with commentators sometimes using the terms interchangeably.226 Although it is not exclusive, one source of inherent powers is indeed that they are inferred from the constitutive instruments of international courts and tribunals—and especially from their primary jurisdictions and functions as set out in those documents.227 What is often considered by commentators three separate approaches to the sources of inherent powers—implied powers, the nature of international courts as judicial bodies, and the functional approach—are actually one and the same. In the Nuclear Test case, which is considered one of the main authorities on inherent powers, the ICJ in fact hinted that the source of inherent powers was a combination of all of these.228 In addition, these three supposedly separate approaches rely or should rely on the same formal source of law, that is, the effective interpretation of the constitutive instruments. Much of the confusion in the case law and scholarship on inherent powers derives from the discomfort with what is perceived as a lack of formal source. 229 Recognizing, however, that inherent powers can often be inferred from constitutive instruments should put these concerns to rest. States and private parties do consent (and even expect) to set up functioning judicial processes, where international courts and

225

Moses, supra note 11, ¶ 8 (emphasis added). See, e.g., Wachter, supra note 160, at 67 n.16. 227 Emmanuel Gaillard, Anti-Suit Injunctions Issued by Arbitrators, in INTERNATIONAL ARBITRATION 2006: BACK TO BASICS? 235, 237 (Albert Jan van den Berg ed., ICCA Cong. Ser. No. 13, 2007) (“The agreement by which two or more parties undertake to submit to international arbitration the disputes which may arise in relation to their contract unquestionably grants arbitrators the power to decide all questions related to the merits of the dispute brought before them.”). 228 Nuclear Tests (Austl. v. Fr.), 1974 I.C.J. 253, ¶ 23. 229 For example, one of the two criticisms identified by Professor Brown as levied against inherent powers is based on the premise that “international courts can only exercise expressly conferred powers.” Brown, supra note 12, at 209–11. 226

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tribunals “exercise the authority implied by their mandate to enable them to manage and decide a dispute within the parameters provided.”230 The courts approach and functional approach are essentially two sides of the same coin. While the former is primarily theoretical, top-down, and status-oriented, the functional approach instead is practical, bottom-up, and function-oriented. Perhaps it is right that the latter sits more comfortably with the ethos of international adjudication,231 according to which states carefully chip away at their sovereignty by delegating powers to third-party decision makers.232 There is indeed no shortage of examples where adjudicators and commentators have invoked the need of international courts and tribunals to ensure the fulfillment of their functions in support of the exercise of inherent powers.233 But an interpretation of the courts approach based on the specific context of each adjudicative body would likely come to the same result.234 Professor Paparinskis notes there is nothing in this approach that “would preclude appropriately taking into account the relevant differences between judicial bodies dealing, for example, with individual responsibility, inter-State claims or individual-State claims in different procedural and substantive contexts.”235

230

De Ly et al., supra note 13, at 3. Liang, supra note 25, at 393 (referring to the functional test adopted by international courts and tribunals in justifying the use of an inherent power). 232 See MARTTI KOSKENNIEMI, FROM APOLOGY TO UTOPIA: THE STRUCTURE OF INTERNATIONAL LEGAL ARGUMENT 221 (1989) (explaining state sovereignty is the foundational basis of international law just as individual liberty is in domestic law). 233 For comprehensive examples, see Brown, supra note 7, at 841 ("Significantly, it is consistent with the dicta of a range of international courts and tribunals on the basis of inherent powers, including the ICJ, which held that it had such powers, inter alia, ‘in order that its basic judicial functions may be safeguarded.’ Other international tribunals that have relied on their functions as the source of inherent powers include the ICTY Appeals Chamber, the WTO Appellate Body, the Iran–United States Claims Tribunal, the Special Tribunal for Lebanon, and a number of ICSID tribunals. In addition, this “functional justification” for the existence of inherent powers has found support in doctrinal writings . . . .”) (footnotes omitted). 234 See Shelton, supra note 38, at 538 n.7. (noting that “[t]he terms ‘court’ and ‘tribunal’ are used interchangeably to refer to judicial institutions, notwithstanding the fact that states sometimes attach these names to arbitral bodies as well as to judicial ones. The decision to deny an institution the appellation ‘court’ or ‘tribunal’ may indicate its nonjudicial nature, but attaching the name is not always dispositive as to its character.”). 235 Paparinskis, supra note 37, at 15 (footnotes omitted). 231

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The reason that the courts approach and functional approach should ultimately provide similar answers is because they both infer these inherent powers from the constitutive instruments and procedural rules of international courts and tribunals. Both are consent- and context-dependent. It is true the case law and scholarship supporting both approaches rarely, if ever, identify the formal sources on which they rely.236 However, “courts” and “functions” are not mystical concepts stemming from the clear blue sky. Rather, both concepts have been used as labels or, more precisely, as shortcuts, to describe necessary judicial powers that are sometimes defined in the express and discretionary provisions of constitutive instruments, but more commonly inferred from these instruments and rules as a whole. This holistic approach enables the concept of inherent powers to develop alongside broader shifts in the international legal order and thereby to reflect contemporary views of judicial functions. Professor Gaeta is right, however, in claiming that effective interpretation cannot explain all inherent powers since this would “lead to the inference that almost all courts and tribunals do indeed possess the self-same class of unexpressed powers.”237 But this argument does not cast doubt about the existence of implied inherent powers. Rather, it shows there must be another source of inherent power that serves this very purpose—providing rule-based inherent powers applicable almost universally to international courts and tribunals—, as the following section shows.

D.

Rule-Based Inherent Powers In contrast with the previous sources of inherent powers, rule-based inherent powers do

not stem from constitutive instruments, but rather from well-entrenched rules in domestic and 236

Lauterpacht, supra note 7, at 477 (“[T]he [ICJ] does not appear publicly to have discussed the source, character or limits of the exercise of [its] inherent powers. [Their] existence seems to have been assumed. [T]hey must, however, have some source.”). 237 Gaeta, supra note 6, at 364 (emphasis omitted).

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international law. This source of inherent powers is commonly associated in the case law and scholarship with “general principles of law,” but it is properly viewed as broader in scope. As Dr. Orakhelashvili observes, “[t]he normative basis for inherent powers can be the concept of inherent norms in the same way that this concept operates in other fields of international law.” 238 This is an agreeable proposition. For instance, international courts and tribunals have the inherent power to indicate provisional measures since there is an inherent rule requiring that parties not frustrate by their own actions the rights at play in the proceedings.239 The Permanent Court of International Justice (“PCIJ”) indeed held it had the power to indicate provisional measures given the general principle of law that parties must abstain from actions which would prejudice the subject matter of the litigation.240 Similarly, a commercial arbitral tribunal has noted, “the parties must refrain from any conduct (whether action or inaction) which may aggravate the dispute, and . . . arbitrators sitting under the ICC Rules have the power to issue decisions prohibiting such conduct.”241 Upon this basis, the tribunal was satisfied there were risks of imminent and irreparable harm, and, ultimately, granted the interim relief requested by the manufacturer.242 Criticizing the “general principles” approach, Professor Brown noted that the methodology of international courts and tribunals who rely on it is not consistent, and claims it

238

Orakhelashvili, supra note 51, ¶ 46 (emphasis added). Id. 240 Electricity Company of Sofia and Bulgaria (Belg. v Bulg.), Interim Protection Order, 1939 P.C.I.J. (ser. A/B) No. 79, 194, at 199 (Dec. 5) (“Whereas [Article 41, paragraph 1, of the Statute] applies the principle universally accepted by international tribunals and likewise laid down in many conventions to which Bulgaria has been a party—to the effect that the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given and, in general, not allow any step of any kind to be taken which might aggravate or extend the dispute . . . .”). 241 ICC Case No. 10596, Interlocutory Award, 2000, in XXX Y.B. COMM. ARB. 2005 66, ¶ 17 (Albert Jan van den Berg ed., 2005). 242 Id. ¶¶ 18, 21. 239

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cannot provide a basis for all exercise of inherent powers.243 It is true that there may be confusion in the case law with rule-based inherent powers, but it is certainly no different from the confusion related to inherent powers more broadly, given the difficult nature of the topic.244 In addition, it is correct that rule-based inherent powers cannot explain all use of inherent powers and account for the particularities of every adjudicative body—but they do not need to since the other sources of inherent powers already examined play this role.245 Rule-based inherent powers, in short, are well-established principles that complement the instruments of courts and tribunals. Rule-based inherent powers are multifold. These rules can potentially be found in general principles of domestic law, general principles of international law, and customary international law: The application of “general principles of law” by international courts as a source of judicial procedure is well established. This concept was originally intended to refer exclusively to general principles applicable in domestic legal orders, although general principles of international relations have also been applied by international courts. There is a somewhat blurred distinction between a rule deriving from the “customary practice” of international tribunals, and a rule constituting a “general principle of law” under Article 38(1)(c) of the ICJ Statute. The overlap in these categories is evident from Professor Cheng’s inclusion in his work on general principles of law of rules such as that relating to audi alteram partem, the rule on the allocation of the burden of proof, and res judicata, while these might equally be said to have been developed as customary rules of practice. There is also much overlap concerning the use of judicial decisions as a subsidiary source of international law; . . . international courts frequently refer to international judicial practice as a source of procedural rules.246

General principles have indeed slowly taken shape in international law to warrant the exercise of inherent powers,247 or at least of some inherent powers. In addition, the ICJ noted in the Nottebohm case that the principle of competence-competence would have been applicable to it 243

Brown, supra note 9, at 224. See generally Gaeta, supra note 6, at 354–55, 358–61. 245 See also Paparinskis, supra note 37. Professor Paparinskis is one of the few commentators acknowledging there is a multiplicity of overlapping sources of inherent powers. 246 Brown, supra note 9, at 204 (footnotes omitted). 247 Gaeta, supra note 6, at 367. See generally M. H. Mendelson et al., Report for the Biennial Conference in Johannesburg, INT’L L. ASS’N STUDY GROUP ON THE USE OF DOMESTIC L. PRINCIPLES IN THE DEV’T OF INT’L L. (Aug. 2016). Section II.1c of the report addresses particularly international arbitration. 244

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even in the absence of an express reference in its Statute because of its “function . . . to decide in accordance with international law such disputes as are submitted to it” (Article 38, paragraph 1, of the Statute). 248 This discussion illustrates that rule-based inherent powers have been introduced in the practice of international courts and tribunals through multiple and sometimes overlapping sources, which have evolved over time. Since these rules originate not only from domestic law but also from international law, concerns that inherent powers cannot be explained by the “general principles” approach—since civil law jurisdictions lack the concept249—should be put to rest. In addition, rule-based inherent powers depend on a certain level of recognition, which explains why they may take time to emerge. For instance, it is because competence-competence is a “well-entrenched principle of general international law” that the Appeals Chamber in the Tadić case held it had this power despite its Statute being silent.250 Lastly, while courts and tribunals struggled in their early days to pin down the source of inherent powers, they have felt increasingly comfortable relying on their own case law and the decisions of other international adjudicative bodies.251 Thus, jurisprudence is relied on as a source of authority for inherent powers. In light of the foregoing discussion, it is possible to identify multiple formal sources of rule-based inherent powers and ways in which they can be introduced into the interpretative process of international courts and tribunals. First, the source can be “international law” and “general principles” in Article 38 of the ICJ Statute. Ms. Liang, for her part, is in favor an 248

Nottebohm (Liech. v. Guat.), Preliminary Objections, 1953 I.C.J. 111, at 119–20 (Nov. 18) (emphasis

added). 249

See Liang, supra note 25, at 385. See also supra § I.A. Prosecutor v. Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Int’l Crim. Trib. for Former Yugoslavia), ¶ 19 (Oct. 2, 1995). 251 See, e.g., Weiss, supra note 147, at 199 (pointing out how the IUSCT invoked its past decisions as precedents); Buteau & Oosthuizen, supra note 6, at 66–79 (discussing how the ICTY Chambers referred to and applied inherent powers by relying to its own prior decisions). 250

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expansive approach to general principles as exemplified by the Trial Chamber in Kupresic, viewing inherent powers as “general principles of law that are consonant with the basic requirements of international justice.” 252 Although it is improbable that there exist general principles of law not consonant with the basic requirement of international justice,253 it may be best indeed to endorse an understanding of “general principles of international law” that rests on flexible categorization of sources and does not exclude any rule-based inherent powers on the basis of legal formalism.254 This understanding could, for instance, treat as custom the exercise of inherent powers by international courts and tribunals to which subjects of international law have not consistently objected.255 Moreover, general principles can be introduced with Article 31(3)(c) of the VCLT, which refers to “rules of international law applicable in the relations between the parties.”256

CONCLUSION This chapter has contended that the main feature of inherent powers is not their absence from constitutive instruments and procedural rules, but rather the fact that these are necessary judicial powers. The definition of inherent powers presented is broad because the very concept of inherent powers is itself broad. Although inherent powers may partly differ as between interstate adjudication and international arbitration, they do share certain essential characteristics, such as a focus on ensuring impartial and independent dispute settlement. In order to fulfill that goal, it

252

Liang, supra note 25, at 389 (footnote omitted). RAIMONDO, supra note 113, at 171. 254 CRAWFORD, supra note 93, at 37 (“The rubric ‘general principles of international law’ may alternately refer to rules of customary international law, to general principles of law as in Article 38[1][c], or to certain logical propositions underlying judicial reasoning on the basis of existing international law. This shows that a rigid categorization of sources is inappropriate.”). 255 In the Matter of El Sayed, Case No. CH/AC/2010/2, Decision on Appeal of Pre-Trial Judge’s Order Regarding Jurisdiction and Standing (Spec. Trib. for Lebanon, App. Ch.) ¶ 47 (Nov. 10, 2010). 256 Paparinskis, supra note 37, at 16; Vienna Convention on the Law of Treaties, art. 31(3)(c), supra note 76. 253

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seems that some inherent powers are immutable, or at least difficult to displace, in international adjudication. To put it another way, eliminating certain inherent powers would effectively eliminate the judicial character of the tribunal in question.

In addition, this chapter has

emphasized the primary role that constitutive instruments play in shaping the inherent powers of international courts and tribunals, which should alleviate the concerns about the legitimacy of these powers. While inherent powers are indeed typically non-enumerated powers that originate from well-entrenched rules in international law, inherent powers can also be expressly delineated in a tribunal’s constitutive instruments, included in their discretionary provisions, and inferred from these instruments as a whole. The impracticability of encapsulating in applicable governing provisions rules for every circumstance that might arise—viz. the IUSCT contretemps described at the outset of this chapter—means that inherent powers are an indispensable feature of an adjudicative body’s proper functioning.

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