Abstract This article examines corrective equity in maritime delimitation under Articles 74 and 83 of UNCLOS through the three-stage method developed in international jurisprudence. It argues that contemporary case law has disciplined equity by embedding it within a structured justificatory framework that preserves legal certainty while allowing limited correction of method-generated distortions. Rather than proposing a new delimitation methodology, the article reconstructs Stage Two of the established three-stage method as a legally reviewable threshold by identifying the conditions governing corrective intervention and distilling operational tests from international jurisprudence. The article advances three claims. First, equity operates as treaty aim, judicial method, and confined corrective technique. Second, Stage Two marks the legality threshold: adjustment is justified only where a legally cognizable distortion mechanism producing a causal effect on the provisional line is demonstrated, and any response is strictly calibrated. Third, Stage Three proportionality serves only as an ex post control. By reconstructing recurring corrective moves and distilling tests of trigger, necessity, calibration, consistency, and reason-giving, the article shows how equity remains a disciplined and externally reviewable legal technique rather than discretionary balancing.
Abstract This article examines the recent emergence of strategic genocide litigation before the International Court of Justice. Cases such as The Gambia v Myanmar, South Africa v Israel, and Nicaragua v Germany illustrate a shift towards public-interest or lawfare-type proceedings initiated by states that are not themselves directly injured. These judicial proceedings pursue multiple objectives and address a broad range of audiences beyond the parties to the dispute, including other governments, international organizations, civil society, and global public opinion. Against this backdrop, the article analyses both the procedural framework governing dispute settlement before the International Court of Justice as well as the substantive provisions of the Genocide Convention, assessing their suitability for advancing the goals of strategic genocide litigation. It highlights the permissive jurisdictional basis provided by Article IX of the Genocide Convention, the erga omnes partes character of the obligations involved, and the particular significance of provisional measures. Substantively, the article identifies a fundamental tension between the expansive scope of obligations under the Genocide Convention and the narrow confines of the legal concept of genocide itself, most notably, the high threshold required to prove genocidal intent. It concludes that while genocide litigation possesses both preventive and symbolic potential, its overemphasis risks diverting attention from other grave international crimes and from the broader pursuit of accountability and humanitarian protection.
Abstract Most investor–State dispute settlement (ISDS) provisions included in international investment agreements have ‘cooling-off provisions’, requiring an investor and the host State to attempt to settle the dispute through negotiations or consultations before resorting to investor–State arbitration. In spite of their popularity, these provisions often do not work as an effective alternative dispute resolution (ADR) mechanism, because of the behaviour of the parties during the cooling-off period and also because of arbitral tribunals’ conflicting interpretation of these clauses’ nature, prerequisites, requirements and legal effect. This article evaluates whether cooling-off periods can function as effective ADR mechanisms in ISDS, by identifying current barriers and exploring possible solutions, drawing from empirical evidence and general international law. A proper analysis and application of cooling-off provisions would be beneficial for both investors and States, as they would save time and resources by settling or reducing disputes, and achieving a more effective path to an ultimate resolution.
The Grand Ethiopian Renaissance Dam (GERD) was inaugurated in September 2025, marking a significant turning point in the hydro-politics of the Nile Basin. This article examines the evolving dynamics of conflict and cooperation surrounding the GERD through an interpretive application of game theory. Using a qualitative interpretive design, it analyses how strategic interaction, mistrust, bargaining behaviour, and institutional ambiguity shaped negotiations among Ethiopia, Egypt, and Sudan throughout the construction, filling, and operational phases of the dam. Interpreted through the lenses of Stag Hunt and Prisoner's Dilemma, the study argues that the dispute extended beyond water allocation to broader questions of regional influence, security, and political legitimacy. Ethiopia's pursuit of unilateral filling strategies, Egypt's securitization of Nile waters, and Sudan's fluctuating position collectively reinforced cycles of distrust despite repeated diplomatic engagements under the African Union, the US-World Bank process, and the United Nations Security Council. Yet the absence of direct military confrontation, despite sustained brinkmanship and coercive rhetoric, demonstrates the simultaneous coexistence of rivalry and pragmatic restraint in Nile hydro-politics. The study contends that long-term basin stability will depend on transforming strategic competition into institutionalized cooperation through credible commitments, transparency mechanisms, and regionally coordinated frameworks capable of managing both political and hydrological uncertainty.
The International Court of Justice's 19 May 2025 Judgment in the case between Gabon and Equatorial Guinea addresses a fairly standard dispute concerning rival claims to territory and maritime spaces. However, it addresses these in an unusual manner, on the basis of a Special Agreement that sought to provide the Court with a specific mandate not to delimit land or maritime boundaries or determine sovereignty, but to adjudicate a seemingly narrower issue: which titles had the force of law between the parties. From the exercise of this mandate, several issues of more general relevance emerge, namely the value of tailored mandates, the approach to a peculiar convention through which the parties had already allegedly resolved their dispute, and the continuing relevance of colonial concepts and documents. The Court's decision has been widely perceived as a win for Equatorial Guinea, whose claim to three disputed islands the Court upheld. This is a plausible reading, but one that singles out one aspect of a rich and complex judgment. Initial responses seem to suggest that the parties are willing to engage in post-judgment negotiations with a view to settling their long-standing dispute peacefully.
Abstract Confidentiality is presented as a defining feature of international commercial arbitration, although its legal basis and enforceability vary across jurisdictions and institutions. This article argues that confidentiality is not an inherent attribute of arbitration, but a constructed consent-based procedural norm. Drawing on social contract theory, the article conceptualizes arbitration as a form of private legal ordering in which parties delegate procedural authority to secure mutually advantageous outcomes. From this perspective, confidentiality derives its legitimacy from consent and institutional design, but remains a conditional obligation. The article advances a thematic comparative analysis identifying two models of confidentiality: presumptive regimes, where confidentiality operates as a default, and opt-in regimes, where it arises through express agreement. Both models recognize common limits grounded in consent, legal obligation, and public interest. The article concludes by advancing a contractarian account of an optimum level of confidentiality that is presumptive but qualified, autonomy-based yet normatively constrained.
Observers of the International Court of Justice (ICJ) have noted a rise in requests for provisional measures since the LaGrand Judgment, which declared provisional measures orders to be legally binding. Several ICJ judges have maintained that the Court should accordingly become more cautious in its consideration of such requests. Yet systematic evidence on any possible changes in the behaviour of litigating states and the Court remains limited. This article examines patterns in both the demand for and the supply of provisional measures before and after LaGrand. We argue that the declaration that such measures are binding may encourage states to make more requests, and the Court to address them with greater caution. Using an original dataset with information on each requested measure, we find patterns that are broadly consistent with our theoretical expectations. Our findings advance the scholarship on the use and significance of provisional measures in international adjudication.
The rise of Generative AI (GAI) has made state-facilitated 'data pools' a cornerstone of national industrial policy. This article examines whether these policies constitute actionable subsidies under the World Trade Organization SCM Agreement (Agreement on Subsidies and Countervailing Measures). It argues that while such programmes appear facially neutral, they exhibit de facto specificity under Article 2.1(c) due to the GAI industry's unique technical barriers. To address the jurisdictional gap in service subsidies, this article proposes a 'bridging interpretation' that characterizes GAI models as digital goods. By distinguishing genuine open data from targeted support and exploring legal safe harbours like DEPA, this article concludes that the SCM framework is essential to preventing protectionist fragmentation and ensuring fair competition in the global AI economy.
Adjudication is a form of interim binding alternative dispute resolution available through statutory regimes and contractual clauses, such as dispute boards. Popular in the construction sector, it offers expedient dispute resolution and cash flow to the parties. This article examines the differences between statutory and contractual adjudication frameworks and proposes three avenues for internationalization: (i) model contract clauses, (ii) model laws, and (iii) an international convention for the recognition and enforcement of adjudication agreements and decisions. Taken together, these tools could promote adjudication through incremental and polycentric harmonization while respecting the differences between jurisdictions and preserving party autonomy.
This article examines the role of Alternative Dispute Resolution (ADR) mechanisms in the settlement of international disputes involving tangible cultural heritage. It argues that ADR mechanisms-including negotiation, mediation, conciliation, and arbitration-offer distinct advantages over litigation. By situating ADR within the broader framework of international dispute settlement, this article demonstrates that these mechanisms are fully consistent with international law and are increasingly relied upon by States and private entities alike. While recognizing that ADR is not a universal remedy and that traditional litigation remains necessary in certain cases, this article concludes that ADR plays an essential role in the effective settlement of international cultural heritage disputes and, consequently, in the protection of cultural heritage itself.
Advisory opinions of the International Court of Justice (ICJ) form a substantial part of its 80-year jurisprudence and have played a key role in the international life of the United Nations (UN). However, requests on abstract questions that do not contain reference to any concrete dispute or factual circumstances tend to direct the advisory function away from its institutional orientation, as their origins, objectives, and intended effects bear only a tenuous connection to the activities of the requesting organs. Instead, such requests are aimed at capitalizing on the law-making potential of advisory opinions. However, the judicial character of the ICJ constrains the extent to which the underlying law-making expectations can be met. The present study argues that, in navigating this dilemma, the ICJ appears to move away from its role as 'the principal judicial organ of the UN' and recasts itself as 'the principal judicial organ of the international community'.
Global supply chain reformulation has emerged as a central policy priority for many states as they confront recurring geopolitical and economic disruptions. The process, however, is increasingly confined to select groups of like-minded states and corporations, rendering it inherently selective and discriminatory. This characteristic signals a de facto departure from the long-standing principle of non-discrimination that underpins international trade and investment law. Yet the legal implications of this shift have been largely neglected, with most analyses limited to broad invocations of national security exceptions. The ongoing restructuring of global supply chains thus carries systemic consequences for the existing global economic order and may mark the emergence of a new model of global economic governance. Addressing this challenge requires a structured legal approach: defining the scope of reformulation, distinguishing between general and strategic supply chains, and establishing flexible dispute resolution mechanisms.
The legitimacy crisis that affects the Investor-State Dispute Settlement (ISDS) is also rooted in its structural inability to deliver justice to investment-affected persons and communities. This article addresses this aspect by presenting restorative justice as a means of achieving a fairer balance between public and private interests in international investment law. Restorative justice is a holistic approach to justice promoting relational balance, care for harmed persons, and ultimately social reconciliation. As such, it could enhance the shift from ISDS's capital-based logic towards public interest-oriented solutions responsive to investment-related harms. By adopting a descriptive approach, this article presents restorative justice within a public interest reform scenario for ISDS, outlining its features and the challenges associated with conceiving the investor as a social healer for investment-affected communities.
It is a foundational principle of international arbitration that arbitral tribunals are bound by the choice of law effected by the parties. A tribunal's failure to apply the designated national law exposes its award to the gravest of consequences-annulment at the seat or refusal of recognition and enforcement under the New York Convention. This proposition, though uncontroversial, leaves unexamined a more intricate and far less settled question: to what extent are arbitral tribunals correspondingly bound by the judicial interpretation of that national law rendered by domestic courts? While arbitral practice has long assumed that fidelity to the parties' chosen law is essential, the jurisprudential status of domestic courts' interpretations within that framework remains elusive. Only in recent years has scholarly inquiry begun to interrogate whether, and to what extent, arbitral tribunals may legitimately depart from judicial constructions of national law, thereby asserting a measure of interpretive autonomy. The contours of this inquiry raise questions of profound consequence: what does it mean for tribunals to apply a national law in a transnational forum? Does arbitral fidelity extend to the methodologies and interpretive traditions of the forum courts, or may tribunals engage in an independent construction of the text, unmoored from domestic judicial precedent? These questions lie at the heart of this article.
This article examines the evolving role of the International Civil Aviation Organization Council as a quasi-judicial body in resolving international aviation disputes. It introduces the concept of 'fluidity in international adjudication' arguing that the Council operates on a spectrum between quasi-judicial and judicial functions. Through historical analysis of key disputes, such as India v Pakistan and recent rulings on MH17, the study demonstrates how the Council's adaptability enhances its resilience while resisting full judicialization. This article also explores future challenges, including disputes related to Carbon Offsetting and Reduction Scheme for International Aviation, highlighting the Council's context-dependent role in international adjudication. It advances a conceptual framework of 'fluidity in international adjudication', defined as the institution's ability to shift dynamically along a continuum between judicial and quasi-judicial functions. This framework offers new ways to address the limitations of binary classifications that obscure the Council's adaptive role in practice.
This article examines the role and authority of precedent in investor-state dispute settlement (ISDS). It situates the debate within broader theoretical discussions about precedent in adjudication and explores how investment tribunals have engaged with prior decisions in practice. The analysis highlights the advantages and disadvantages of formalizing a rule of precedent as well as the options of such formalization in the context of the various institutional proposals suggested in the UNCITRAL Working Group III on ISDS reforms. The article argues that, while ISDS already relies extensively on precedent in practice, it does so without a clear legal framework governing how precedent should operate. Accordingly, the central challenge for ISDS reform is not simply whether precedent should play a role, but more fundamentally how to structure and discipline its use so as to balance consistency and predictability with flexibility and state control.
This paper is inspired by Philip Morris v. Uruguay, where the majority of the tribunal and the dissenting arbitrator diverge on whether 'margin of appreciation,' which has long been applied by the European Court of Human Rights (ECtHR), is applicable to investment arbitration. First, the paper points out that both the majority and the dissent wrongly consider 'margin of appreciation' itself as a prescriptive standard of review that requires the ECtHR to accord deference, but that it is rather a description of standards of review that are provided in certain provisions of the European Convention on Human Rights (ECHR). In particular, the paper argues that it has been used as an indicator of how much deference is required by certain provisions of the ECHR under certain circumstances. Then, after discussing why it has hardly been used outside the ECtHR, the paper discusses whether it is applicable to investment arbitration.
In the wake of the USA's imposition of reciprocal tariffs earlier this year, some countries and regions have concluded bilateral trade agreement frameworks with the USA. The legal character and substantive content of these frameworks raise serious concerns regarding their compatibility with existing multilateral trade rules. Preliminary analysis suggests that many of these agreements contain provisions potentially in breach of foundational principles of the World Trade Organization, particularly the Most-Favoured-Nation obligation and the general prohibition on quantitative restrictions. Such developments risk compelling states into de facto violations of international trade law, thereby weakening the integrity of the multilateral trading system. Responding effectively to the challenges posed by reciprocal tariffs is thus critical to preserving the foundational norms of multilateralism. Of particular concern is the strategic use of bilateralism by the USA to construct a dense web of agreements that may, over time, erode the multilateral order by stealth.
In France, the use of arbitration by public legal entities in international disputes has long been the subject of intense debate. While French judicial courts and arbitration tribunals have endorsed this practice, the Conseil d'Etat historically treated administrative contracts as an exception, considering that such contracts fell within the scope of French domestic law. However, public international law on state immunity has compelled the Conseil d'Etat to acknowledge its international character, even though it still rejects the use of arbitration by French PLEs in administrative disputes. In response to this reluctance, it has been argued that a substantive rule permitting recourse to arbitration in disputes arising from administrative contracts should be codified in France. This article examines the role of public international law in the arbitrability of such contracts and challenges the view that arbitrability may be founded on a substantive rule proposed for codification.
The globalization of assisted reproduction has intensified cross-border surrogacy and generated complex disputes over the recognition of legal parentage. These disputes reveal deep divergences among national legal systems regarding surrogacy regulation and parenthood attribution. Focusing on China-a jurisdiction that maintains a comprehensive prohibition on surrogacy grounded in ethical and public policy considerations-this article examines such conflicts from a private international law perspective. Proceeding from the premise that this prohibition represents a settled ex ante regulatory choice, the article does not seek to challenge China's restrictive stance but addresses the ex post question of how parentage should be determined once a child has been born through a lawful surrogacy arrangement abroad. Drawing on Chinese judicial practice and comparative jurisprudence, the article analyses tensions surrounding the public policy exception, biological and intentional parenthood, and the limits of existing private international law frameworks. It argues for a child-centred and proportional approach to post-factum parentage determination that mitigates harm to children without legitimizing prohibited conduct.
