Forum shopping before international tribunals: (Real) concerns, (Im)possible solutions

Cornell International Law Journal

Volumn 42, Issue 1, 2009, Pages 77-118

  Pauwelyn, Joost ^a   Salles, Luiz Eduardo ^a  

^a Institute of International and Development Studies   (Switzerland)

Author keywords

[No Author keywords available]

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EID: 67650506406     PISSN: 00108812     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (208)

1. Appellate Body Report, Mexico-Tax Measures on Sojt Drinks and Other Uever- ages, WT/DS308/AB/R (Mar. 6, 2006) [hereinafter Appellate Body Report, Mexico- Soft Drinks]. 42 CORNELL INT'L L.J. 77 (2009)
2. North American Free Trade Agreement, U.S.-Can.-Mex., Dec. 17,1992, 321.L.M. 289 (1993) [hereinafter NAFTA].
3. Panel Report, Mexico-Tax Measures on Soft Drinks and Other Beverages, WT/ DS308/R (Oct. 7, 2005) [hereinafter Panel Report, Mexico-Soft Drinks].
4. See Appellate Body Report, Mexico-Soft Drinks, supra note 1,1 19 n.33.
5. See Panel Report, Mexico-Soft Drinks, supra note 3,1 7.14.
6. See id. 11 1.1-1.2.
7. See id. 11 3.2, 7.11.
8. See id. 11 4.150-4.157.
9. General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-ll, 55 U.N.T.S. 194 [hereinafter GATT].
10. See generally Appellate Body Report, Mexico-Soft Drinks, supra note 1; Panel Report, Mexico-Soft Drinks, supra note 3.
11. In the interest of full disclosure, one of the authors of this article drafted the amicus curiae brief submitted by the Mexican sugar industry to the Appellate Body in Soft Drinks.
12. See, e.g., ANDREW BELL, FORUM SHOPPING AND VENUE IN TRANSNATIONAL LITIGATION 11-12, 25 (2003);
13. Arthur Taylor Von Mehren, Theory and Practice of Adjudicatory Authority in Private International Law: A Comparative Study of the Doctrine, Policies and Practices in Common- and Civil-Law Systems, 295 RECUEIL DES COURS 9, 34-37, 179 (2002).
14. See, e.g., GERALD FITZMAURICE, 2 THE LAW AND PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE 437 (1986). Just as in the domestic field it is rare for no court at all to have jurisdiction, and the issue is usually which of two or more possible forums is the correct one ⋯ conversely, is it a rarity in the international field for there to be any possibility of more than one forum. Id. Writing as recently as 2006, Shabtai Rosenne had this to say: "Questions of the conflicting jurisdictions, or conflicting competences, of international tribunals are rarely encountered." SHABTAI ROSENNE, 2 THE LAW AND PRACTICE OF THE INTERNATIONAL COURT 1920-2005, at 518 (4th ed. 2006).
15. See YUVAL SHANY, THE COMPETING JURISDICTIONS OF INTERNATIONAL COURTS AND TRIBUNALS (2003) [hereinafter SHANY, THE COMPETING JURISDICTIONS] ;
16. see also Roger P. Alford, The Proliferation of International Courts and Tribunals: International Adjudication in Ascendance, 94 AM. SOC'Y INT'L L. PROC. 160, 160-61 (2000);
17. Joost Pauwelyn, Adding Sweeteners to Softwood Lumber: The WTO-NAFTA 'Spaghetti Bowl' is Cooking, 9 J. INT'L ECON. L. 197,197 (2006);
18. Cesare P.R. Romano, The Proh/eration of International Judicial Bodies: The Pieces of the Puzzle, 31 N.Y.U. J. INT'L L. & POL. 709, 727 (1999).
19. See Rosalyn Higgins, A Babel of Judicial Voices? Ruminations from the Bench, 55 INT'L & COMP. L.Q. 791 (2006);
20. Symeon Karagiannis, La Multiplication des Juridictions Internationales: Un Systeme Anarchique?, in LA JURIDICTIONNALISATION DU DROIT INTERNATIONAL 7 (Société Française pour le Droit International ed., 2003);
21. Pemmaraju Sreenivasa Rao, Multiple International Judicial Forums: A Reflection of the Growing Strength of International Law or its Fragmentation?, 25 MICH. J. INT'L L. 929, 958-59 (2004).
22. Nicaragua allegedly imposed taxes on imports from Honduras and Colombia as a response to an agreement on maritime delimitation between Honduras and Colombia that would have violated Nicaragua's rights. Dispute Settlement Body, Minutes of Meeting Held in the Centre William Rappard on 7 April 2000,11 49-51, WT/DSB/M/78 (May 12, 2000). Honduras highlighted that "the subject of maritime limits did not fall within the WTO mandate, and should be dealt with by the competent forum such as the International Court of Justice." Id. 1 61. The ICJ eventually drew the maritime boundary between Nicaragua and Honduras. See Territorial and Maritime Dispute Between Nicaragua and Honduras in the Caribbean Sea (Nicar. v. Hond.), 2007 I.C.J. 1, 93 (Oct. 8).
23. Cf Jacob Katz Cogan, Competition and Control in International Adjudication, 48 VA. J. INT'L L. 411, 440-49 (2007).
24. See Vaughan Lowe, Overlapping Jurisdiction in International Tribunals, 20 AUSTL. Y.B. INT'L L. 191, 201 (1999).
25. See generally Cesare P.R. Romano, The Price of International Justice, 4 LAW & PRAC. INT'L CTS. & TRIBUNALS 281, 303 (2005). The cost to society is arguably more of a concern where the cost of the tribunal is covered by all parties to it (not just the disputing parties) through the institution's general budget, as in the WTO or the ICJ-unlike in investor-state arbitration where the disputing parties alone pay all costs. Id. at 303-04.
26. See Benedict Kingsbury, Foreword: Is the Proliferation of International Courts and Tribunals a Systemic Problem?, 31 N.Y.U. j. INT'L L. & POL. 679, 692 (1999).
27. Compare Lauder v. Czech Republic, Final Award, (UNCITRAL Arbitration) (Sept. 3, 2001), with CUE Czech Republic B.V. v. Czech Republic, Final Award, (UNCITRAL Arbitration) (Mar. 14, 2003) (reaching different conclusions on the merits of disputes dealing with the same measures).
28. See Appellate Body Report, Brazil-Measures Affecting Imports of Retreaded Tyres, 1 228, WT/DS332/AB/R (Dec. 3, 2007) (considering that exempting Uruguayan imports pursuant to a MERCOSUR ruling led to "arbitrary or unjustifiable" discrimination in the application of Brazil's import ban under the chapeau of GATT Article XX);
29. Panel Report, Argentina-Definitive Anti-Dumping Duties on Poultry from Brazil, 1 7.38, WT/DS241/R (Apr. 22, 2003) (accepting that the same measure be challenged sequentially before a MERCOSUR arbitral tribunal under the Protocol of Brasilia and WTO dispute settlement) [hereinafter Panel Report, Argentina-Poultry].
30. Compare Panel Report, United States-Final Anti-Dumping Measures on Stainless Steel from Mexico, 1 7.106, WT/DS344/R (Dec. 20, 2007) (deciding it had "no option but to respectfully disagree with the line of reasoning developed by the Appellate Body regarding the WTO-consistency of simple zeroing in periodic reviews"), with Panel Report, United States-Measures Relating to Zeroing and Sunset Reviews, 11 7.223, 7.227, 7.256, 7.259, WT/DS322/R (Sept. 20,2006), and Appellate Body Report, United States- Measures Relating to Zeroing and Sunset Reviews, 11 3, 98, 100, 139, 184, WT/DS322/ AB/R (Jan. 9, 2007) (the panel considering that "simple zeroing" is permissible, the Appellate Body considering that it is not). In a recent report, the Appellate Body reversed the panel's findings in United States-Anti-Dumping Measures on Stainless Steel from Mexico, noting, "[w]e are deeply concerned about the Panel's decision to depart from well-established Appellate Body jurisprudence clarifying the interpretation of the same legal issues. The Panel's approach has serious implications for the proper functioning of the WTO dispute settlement system." Appellate Body Report, United States-Final Anti-Dumping Measures on Stainless Steel from Mexico, 1 162, WT/DS344/ AB/R (Apr. 30, 2008). The Appellate Body also emphasized that the legal interpretation embodied in adopted panel and Appellate Body reports becomes part and parcel of the acquis of the WTO dispute settlement system. Ensuring 'security and predictability' in the dispute settlement system, as contemplated in Article 3.2 of the DSU, implies that, absent cogent reasons, an adjudicatory body will resolve the same legal question in the same way in a subsequent case. Id. 1 160.
31. As Gilles Cuniberti puts it: "[T]he existence of conflicting decisions in different legal orders can cause harm⋯ . [T]he situation of the parties will be intolerable, with each of them in danger of being deprived in one place of what it has been awarded in another." Gilles Cuniberti, Parallel Litigation and Foreign Investment Dispute Settlement, 21 ICS1D REV. FOREIGN INVESTMENT LJ. 381, 419-20 (2006).
32. Id. at 395-96 (arguing that substantive inconsistencies and the absence of settlement can be more fundamental a problem than the concern with intra-systemic coherence and therefore submitting that mechanisms should be available to avoid inconsistent decisions even across different systems).
33. See, for instance, the painstaking efforts by the arbitral tribunal in Iron Rhine Railway to decide the case on the basis of international law, including European law, while respecting the exclusive jurisdiction of the European Court of Justice. See generally Iron Rhine ("IJzeren Rijn") Railway (Belg. v. Neth.) (Perm. Ct. Arb. 2005). Contra Niko- laos Lavranos, The MOX Plant and the IJzeren Rijn Disputes: Which Court is the Supreme Arbiter?, 19 LEIDEN J. INT'L L. 223 (2006).
34. See, e.g., Ralf Michaels, Territorial Jurisdiction After Territoriality, in GLOBALISATION AND JURISDICTION 105 (PIETJAN SLOT & MIELLE BULTERMAN eds., 2004).
35. See supra note 16 and accompanying text.
36. See generally Cesare P.R. Romano, The Shift from the Consensual to the Compulsory Paradigm in International Adjudication: Elements for a Theory of Consent, 39 N.Y.U. J. INT'L L. & POL. 791 (2007).
37. A good example of this shift, or difference, is BITs conferring jurisdiction to arbitrate legal claims under the BIT only versus BITs conferring jurisdiction more generally in regard to disputes "relating to investments made" under the BIT, without limitation as to the legal cause of action of such disputes (be it the BIT or an investment contract). Compare SGS Societe Generale de Surveillance S.A. v. Republic of the Philippines, ICSID (W. Bank) Case No. ARB/02/6, Decision of the Tribunal on Objections to Jurisdiction, TJ 131-135 (2004), with SGS Societe Generale de Surveillance S.A. v. Republic of Pakistan, ICSID (W. Bank) Case No. ARB/01/13, Decision of the Tribunal on Objections to Jurisdiction, 1 161, 42 I.L.M. 1290, 1317-18 (2003).
38. See infra notes 163-167.
39. See infra note 138 and accompanying text.
40. See infra Part III for the distinction between jurisdiction and admissibility.
41. Note, however, that rules on "related actions," discussed later, grant judicial discretion to exercise or not to exercise jurisdiction in civil law systems. Moreover, note that civil law systems may grant a wide margin of discretion within the appreciation of the law by courts through open-textured jurisdictional rules. Thus, Section 11 of Article 429c of the Code of Procedure of the Netherlands provides that "[a] court has no jurisdiction if the petition is insufficiently connected with the legal sphere of The Netherlands." See Mirjam Freudenthal & Frans Van Der Velden, The Netherlands, in DECLINING JURISDICTION IN PRIVATE INTERNATIONAL LAW 321, 328 (I. J. Fawcett ed., 1995). In Greece, discretionary power within the application of the law exists by virtue of the prohibition on abuse of rights and the obligation to act in good faith. See Panagiotis Kargados & Elina Moustaira, Greece, in DECLINING JURISDICTION IN PRIVATE INTERNATIONAL LAW, supra, at 235, 242;
42. see also Ellen L. Hayes, Forum Non Conveniens in England, Australia and Japan: The Allocation of Jurisdiction in Transnational Litigation, 26 U. Brit. Colum. L. Rev. 41, 56 (1992) (envisaging that the objectives of forum non conveniens could also be achieved in Japan through the prohibition on abuse of rights or of dual suits); Akihiro Hironaka, Jurisdictional Theory "Made in Japan": Convergence of U.S. and Continental European Approaches, 37 VAND. J. TRANSNAT'L L. 1317 (2004).
43. See Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976);
44. see also Mathew D. Staver, The Abstention Doctrines: Balancing Comity with Federal Court Intervention, 28 SETON HALL L. REV. 1102 (1998).
45. See NAFTA art. 1126, para. 2 (allowing the consolidation of proceedings with "a question of law or fact in common ⋯ in the interests of fair and efficient resolution of the claims"). See generally Henri C. Alvarez, Arbitration Under the North American Free Trade Agreement, 16 Arb. Int'l 414 (2000). So far, two tribunals have decided consolidation claims. The Corn Products tribunal, on the one hand, focused on the unfairness to investors of a consolidation that the investors did not agree to and which would have negatively affected their procedural interests. See generally Corn Prod. Int'l, Inc. v. United Mexican States, ICSID (W. Bank) Case No. ABR(AF)/04/l, Acher Daniels Midland Co., and Tate & Lyle Ingredients Americas, Inc. v. United Mexican States, ICSID (W.Bank) Case No. ARB(AF)/04/5, Order of the Consolidation Tribunal (2005). The Softwood tribunal, on the other hand, focused on efficiency to the resolution of the claims in terms of procedural economy. See generally Canfor Corp. v. United States, Tembec et al. v. United States, and Terminal Forest Prod., Ltd. v. United States, Order of the Consolidation Tribunal (2005).
46. See the WTO intra-systemic rules on multiple complaints in Article 9 of the DSU, which states that a single panel should examine complaints related to the "same matter" whenever feasible and, when more than one panel is established, the same persons shall serve as panelists and the timetables should be harmonized. See Understanding on Rules and Procedures Governing the Settlement of Disputes art. 9.1, Apr. 15, 1994, Mar- rakesh Agreement Establishing the World Trade Organization, Annex 2, Legal Instruments-Results of the Uruguay Round, 33 I.L.M. 1125 (1994) [hereinafter DSU].
47. See "related actions" in civil law systems discussed infra notes 163-165 and accompanying text.
48. See, e.g., FED. R. CIV. P. 42;
49. see also Council Regulation 44/2001, Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, art. 29, 2000 O.J. (L 12) 1, 9 (EC).
50. Some authors argue that this is the only option for a WTO adjudicator. See, e.g., Kyung Kwak & Gabrielle Marceau, Overlaps and Conflicts of Jurisdiction Between the World Trade Organization and Regional Trade Agreements, in REGIONAL TRADE AGREEMENTS AND THE WTO LEGAL SYSTEM 465, 483 (Lorand Bartels & Federico Ortino eds., 2006) ("If an RTA contains an exclusive forum clause, nothing appears to prevent a WTO panel from proceeding to examine a claim of WTO violation even if, in doing so, one of the parties to the WTO dispute would be in violation of its RTA obligation.");
51. see also id. at 481 ("It is difficult to see how WTO panels could decline jurisdiction for reasons of res judicata, lis pendens, or forum non conveniens.").
52. Appellate Body Report, Mexico-Soft Drinks, supra note 1, ¶ 23.
53. Id. ¶ 34.
54. One Party cannot avail himself of the fact that the other has not fulfilled some obligation or has not had recourse to some means of redress, if the former Party has, by some illegal act, prevented the latter from fulfilling the obligation in question, or from having recourse to the tribunal which would have been open, to him. Factory at Chorzów (F.R.G. v. Pol.), 1927 P.C.IJ. (ser. A) No. 9, at 31 (July 26);
55. see also Gabčikovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7, 76 (Sept. 25).
56. Panel Report, Mexico-Soft Drinks, supra note 3, ¶ 7.14 (stating that neither the subject matter nor the respective positions of the parties would be equivalent in the disputes under NAFTA and the WTO).
57. Panel Report, Argentina-Poultry, supra note 22, ¶ 7.18-7.20.
58. For a more complete explanation of why WTO panels can also apply such treaty clauses outside WTO covered agreements, see Joost Pauwelyn, How to Win a World Trade Organization Dispute Based on Non-World Trade Organization Law?: Questions of Jurisdiction and Merits, 37 J. World Trade 997 (2003).
59. NAFTA Article 2005 paragraph 6 reads, in relevant part: "Once dispute settlement procedures have been initiated under Article 2007 or dispute settlement proceedings have been initiated under the GATT, the forum selected shall be used to the exclusion of the other." NAFTA art. 2005, para. 6.
60. Amicus Curiae Brief by Camara Nacional de las Industrias Azucarera y Alcoholera-Mexico (CNIAA), ¶ 19, Mexico- Tax Measures on Soft Drinks and Other Beverages, WT/DS308/AB/R (Jan. 12, 2006) [hereinafter Camara Nacional Amicus Brief, Mexico- Soft Drinks] (on file with the authors). 10. NAFTA Article 2005.1 states that "disputes regarding any matter arising under both NAFTA and GATT/WTO, may be settled in either forum at the discretion of the complaining party". The US does not contest that Mexico's tax at issue here is just one part of a broader US-Mexico sweetener dispute. Nor does the US contest that this sweetener "dispute" regards a "matter" arising under both NAFTA and the GATT/WTO. 11. Now, in 2000, Mexico, exercising the discretion offered to NAFTA parties in Article 2005.1, decided to bring this "dispute" to NAFTA. As of that point in time, though, Article 2005.6 reserves exclusive jurisdiction to NAFTA and precludes any WTO jurisdiction over the dispute. Article 2005.6 provides, indeed, that [o]nce dispute setdement procedures have been initiated under [NAFTA] Article 2007 ⋯ the forum selected shall be used to the exclusion of the other [in casu the WTO] ⋯ 12. Unlike the principle of res judicata (implicitly referred to by the Panel in paragraph 7.13), Article 2005 of NAFTA is not conditioned on the fact that the same specific "measure" is before both NAFTA and the WTO. Rather, Article 2005 relates to "disputes" regarding a "matter". As the US concedes, the "matter" in the US-Mexico sweetener "dispute" is not limited to the US quota, nor to the Mexican tax. It covers both. Hence, the fact that the specific "measure" before the NAFTA (a US quota) is not the same as the specific 'measure' before the WTO (a Mexican tax), is irrelevant under Article 2005 for as long as these specific measures are part of one and the same "dispute" or "matter". 13. Similarly, Article 2005 is not conditioned on the fact that "the respective positions of the parties" are "identical" in both NAFTA and the WTO (Panel report, paragraph 7.15). Rather, once a dispute is before either forum (here, NAFTA), "the forum selected shall be used to the exclusion of the other". Article 2005.6 does not limit this restriction to the original complainant (in this case, Mexico). In other words, once Mexico brought the sweetener dispute to NAFTA, both Mexico and the United States were precluded from bringing it also to the WTO. Yet, this is what the US is trying to do here. 14. Finally, there can be no doubt that in this case "dispute settlement procedures have been initiated under Article 2007" of NAFTA, even if no NAFTA Panel has actually been established. What counts is the initiation of procedures under NAFTA Article 2007, that is, the second step of NAFTA Chapter 20 procedures, namely consideration by the Free Trade Commission. Panel proceedings are the third step and covered by Article 2008. The US itself has explicitly acknowledged that Mexico thus "initiated" NAFTA proceedings and that such proceedings remain pending to this day (and, therefore, continue to preclude WTO proceedings on the same dispute) ⋯. Id. ¶ 10-14.
61. Appellate Body Report, Mexico-Soft Drinks, supra note 1, ¶ 54. Mindful of the precise scope of Mexico's appeal, we express no view as to whether there may be other circumstances in which legal impediments could exist that would preclude a panel from ruling on the merits of the claims that are before it. In the present case, Mexico argues that the United States' claims under Article III of the GATT 1994 are inextricably linked to a broader dispute, and that only a NAFTA panel could resolve the dispute as a whole. Nevertheless, Mexico does not take issue with the Panel's finding that "neither the subject matter nor the respective positions of the parties are identical in the dispute under the NAFTA ⋯ and the dispute before us." Mexico also stated that it could not identify a legal basis that would allow it to raise, in a WTO dispute settlement proceeding, the market access claims it is pursuing under the NAFTA. It is furthermore undisputed that no NAFTA panel as yet has decided the "broader dispute" to which Mexico has alluded. Finally, we note that Mexico has expressly stated that the so-called "exclusion clause" of Article 2005.6 of the NAFTA had not been "exercised". We do not express any view on whether a legal impediment to the exercise of a panel's jurisdiction would exist in the event that features such as those mentioned above were present. In any event, we see no legal impediments applicable in this case." Id. (emphasis added) (internal citations omitted).
62. Recall that the three stylized options laid out are not mutually exclusive. A tribunal could, for example, be willing to look at all three sets of rules (forum rules, general principles, and treaty clauses outside the forum) to eventually apply the forum or outside treaty rule based on the principle of lex specialis.
63. Compare Access to Information Under Article 9 of the OSPAR Convention (Ir. v. U.K.), 1 143 (Perm. Ct. Arb. 2003), 42 I.L.M. 1118 (2003), ("[T]he OSPAR Convention contains a particular and self-contained dispute resolution mechanism in Article 32, in accordance with which this Tribunal acts."), with MOX Plant Case (no. 3) (Ir. v. U.K.), Suspension of Proceedings on Jurisdiction and Merits (Perm. Ct. Arb. 2003), 42 I.L.M. 1187 (2003) (considering the possibility of the existence of exclusive jurisdiction of the European Court of Justice (ECJ) and opting for a stay in the proceedings until further clarification of the issue). See generally YUVAL SHANY, REGULATING JURISDICTIONAL RELATIONS BETWEEN NATIONAL AND INTERNATIONAL COURTS 110-16 (2007) (contrasting the two underlying judicial policies under the labels of "integrationism" and "disintegrationism").
64. Georges Abi-Saab recently underlined the importance of this variable: "la question f ondamentale de la politique judiciaire d suivre se pose, id comme atHeurs: est-ce que le but est simplement de regler un differend particulier dont on est saisi, ou doit-on se situer dans un contexte plus large, celui de controler et mêtne d'affermir la légalite? Georges Abi- Saab, Commentaire, in LA PREUVE DEVANT LES JURIDICTIONS INTERNATIONALES 97, 97 (Helene Ruiz Fabri & Jean-Marc Sorel eds., 2007) ("This is the fundamental question of judicial politics, both here and elsewhere: Is the goal simply to resolve the dispute before the court, or is it to control and strengthen legality in general?").
65. In international law, this notion is generally uncontested. See, e.g., GEORGES ABI- SAAB, LES EXCEPTIONS PRELIMINAIRES DANS LA PROCEDURE DE LA COUR INTERNATIONALE (1967);
66. AARTEN BOS, LES CONDITIONS DU PROCES EN dROIT INTERNATIONAL PUBLIC (1957);
67. J.C. Witenberg, La Recevabilité des Réclamations devant les Juridictions Internationales, 41 RECUEIL DES COURS 5 (1932). At the WTO, preliminary objections have the potential to stop proceedings. In Mexico- Corn Syrup, Mexico asked the Appellate Body to reverse the substantive findings of the panel based on procedural deficiencies identified in the panel process that were allegedly ignored by the panel. Appellate Body Report, Mexico- Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States, Recourse to Article 21.5 of the DSU by the United States, WT/DS132/AB/RW (Oct. 22, 2001) [hereinafter Appellate Body Report, Mexico-Corn Syrup]. The Appellate Body recognized the potential of Mexico's claim, but denied it on substantive grounds due to Mexico's failure to raise those deficiencies as "objections." Id. 11 47-50. Note also that preliminary defences that fall outside the terms of reference have the effect, if accepted, of precluding findings of merit in the same panel proceedings concerning such claims. See, e.g., Panel Report, European Communities-Customs Classification of Frozen Boneless Chicken Cuts, 1 7.32, WT/DS269/R (May 30, 2005).
68. The panel in Soft Drinks stated, in relation to Mexico's request for a preliminary ruling on the question of the propriety of exercising jurisdiction, Nothing in the DSU, or in the Panel's working procedures, required the Panel to address Mexico's request in a preliminary ruling. Instead, the Panel could have waited to rule on the request until its final report. It was the Panel's opinion, however, that both the parties and the panel proceeding were better served by an early ruling on the request. Had it been appropriate for the Panel to decline to exercise its jurisdiction, an early decision to this effect would have saved time and resources. On the other hand, if the Panel-as in the event it did-rejected Mex-ico's request, an early decision would allow the parties to concentrate on the other aspects of the dispute. Panel Report, Mexico-Soft Drinks, supra note 3,¶ 7.2 (emphasis added). The PCIJ Statute and original Rules of Court also did not foresee preliminary objections at all. See generally Statute of the Permanent Court of International Justice, Dec. 16, 1920, 6 L.N.T.S 390; Rules of Court, 1922 P.C.I.J. 1 (ser. D) No. 1. Notwithstanding the lack of explicit regulation, the Court dealt with those objections ever since the first cases. For example, in Mavrommatis Palestine Concessions, the Court noted: Neither the Statute nor the Rules of Court contain any rule regarding the procedure to be followed in the event of an objection being taken in limine litis to the Court's jurisdiction. The Court therefore is at liberty to adopt the principle which it considers best calculated to ensure the administration of justice, most suited to procedure before an international tribunal and most in conformity with the fundamental principles of international law. Mavrommatis Palestine Concessions (Greece v. Gr. Brit.), 1924 P.C.I.J. (ser. A) No. 2, at 16 (Aug. 30); see also Certain German Interests in Polish Upper Silesia (F.R.G. v. Pol.), 1925 P.C.I.J. (ser. A) No. 6, at 19 (Aug. 25).
69. Article 35 of the European Convention of Human Rights and Fundamental Freedoms, entitled "Admissibility criteria," lists, inter alia, the exhaustion of domestic remedies, anonymity of application, previous related actions and applications that are manifestly ill-founded or an abuse of the right of application. Convention for the Protection of Human Rights and Fundamental Freedoms art. 35, Nov. 4, 1950, 213 U.N.T.S. 222 [hereinafter ECHR].
70. SGS Societe Generale de Surveillance S.A. v. Republic of the Philippines, ICSID (W. Bank) Case No. ARB/02/6, Decision of the Tribunal on Objections to Jurisdiction, ¶ 113-119 (2004).
71. Id. ¶ 113-129.
72. In other words, the tribunal regarded forum clauses (analogous to NAFTA Article 2005 at issue in Soft Drinks) not as an obstacle or legal impediment to jurisdiction, but as an obstacle or legal impediment to admissibility. See id. ¶ 136-155.
73. The ICJ has recognized objections to admissibility as such in the exercise of its competence de la compitence, when it has felt it necessary. See, e.g., Panevezys-Saldutiskis Railway (Est. v. Lith.), 1939 P.C.I.J. (ser. A/B) No. 76, at 16 (Feb. 28). It is on the basis of this practice that the current ICJ Rules of Court, drawn by the judges themselves, do make the distinction. See International Court of Justice, Rules of Court art. 69 (1978) (amended 2005) [hereinafter ICJ Rules of Court].
74. Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, Mar. 18, 1965, 17 U.S.T. 1270, 575 U.N.T.S. 159 [hereinafter ICSID Convention].
75. See also Gaetano Morelli, La Thiorie Générale du Procés International, in 61 RECUEIL DES COURS III 253, 363 (1937) "L'action doit Itre concue, dans Vordre international, comme un pouvoir juridique non settlement autonome, mais mime abstrait. Elle ne se confond pas avec I'éventuel droit subjectif en contestation et elle n'est pas subordonnie à I'existence du droit subjectif." Id. (The action should be understood, in the international order, like a legal power that is not only autonomous, but even abstract. It should not be confused with the prospective subjective law in question and it is not subordinated to the existence of subjective law.).
76. Appellate Body Report, Mexico-Soft Drinks, supra note 1, ¶ 44.
77. See generally Cuniberti, supra note 24 (discussing the role of consent in minimizing the problem of forum shopping). Conversely, the problem is amplified where consent is given ex ante.
78. See CHITTHARANJAN F. AMERASINGHE, JURISDICTION OF INTERNATIONAL TRIBUNALS 245-308 (2003);
79. Fitzmaurice, supra note 13, 438-40. See generally supra note 51.
80. Examples of legal impediments that make a complaint inadmissible before the ICJ are the nationality of the claimant, non-exhaustion of local remedies, and undue delay. See, e.g., Interhandel (Switz. v. U.S.), 1959 I.C.J. 5, 25-26 (Mar. 21); Nottebohm (Liech. v. Guat.), 1953 I.C.J. Ill, 123 (Nov. 18); Ambatielos (Greece v. U.K.), 1952 I.C.J. 28, 43-44 (July 1);
81. see also Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Summary 2007/3 I.C.J. (May 24), available at http://www.icj-cij.org/docket/files/103/ 13857.pdf.
82. Oil Platforms (Iran v. U.S.), 2003 I.C.J. 161, 177 (Nov. 6).
83. See infra notes 80-85.
84. Article 79.1 of the ICJ Rules of Court highlights that jurisdiction relates to the Court, and admissibility relates to the application: "Any objection by the respondent to the jurisdiction of the Court or to the admissibility of the application ⋯ ." ICJ Rules of Court, supra note 59, art. 79.1 (emphasis added).
85. Theoretically, objections to admissibility should come into play only after jurisdiction is established. See, e.g., Armed Activities on the Territory of the Congo (New Application 2002) (Dem. Rep. Congo v. Rwanda), 2006 I.C.J. 4, 17, 52 (Feb. 3). Note, however, that there have been cases in which a claim has been found to be inadmissible while the objections to jurisdiction had not been thoroughly disposed of. See, e.g., Interhandel, 1959 I.CJ. at 8-9.
86. See Northern Cameroons (Cameroon v. U.K.), 1963 I.C.J. 15, 102-03 (Dec. 2) (separate opinion of Judge Fitzmaurice). [T]he real distinction and test would seem to be whether or not the objection is based on, or arises from, the jurisdictional clause or clauses under which the jurisdiction of the tribunal is said to exist. If so, the objection is basically one of jurisdiction. If it is founded on considerations lying outside the ambit of any jurisdictional clause, and not involving the interpretation or application of such a provision, then it will normally be an objection to the receivability of the claim Id.
87. See infra notes 86-90.
88. A WTO panel "is entitled to consider the issue of its own jurisdiction on its own initiative, and to satisfy itself that it has jurisdiction in any case that comes before it." Appellate Body Report, United States-Anti-Dumping Act of 1916, WT/DS136/AB/R, WT/DS162/AB/R, 1 54 n.30 (Aug. 28, 2000) [hereinafter Appellate Body Report, Anti- Dumping Act of 1916] (emphasis added); see also Prosecutor v. TadiC, Case No. IT-94-1- AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 11 15, 18 (Oct. 2,1995), in 1 ANNOTATED LEADING CASES OF INTERNATIONAL CRIMINAL TRIBUNALS: THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA 1993-1998, at 33, 40-41 (Andre Klip & Goran Sluiter eds., 1999) [hereinafter TadiC Defence Motion]. What is more, "[P]anels cannot simply ignore issues which go to the root of their jurisdiction .⋯ Rather, panels must deal with such issues-if necessary, on their own motion-in order to satisfy themselves that they have authority to proceed." Appellate Body Report, Mexico-Corn Syrup, supra note 53,1 36 (emphasis added); see also Border and Transborder Armed Actions (Nic. v. Hond.), 1988 I.C.J. 69, 76 (Dec. 20); Fisheries Jurisdiction (Spain v. Can.), 1998 I.C.J. 432, 450 (Dec. 4) ("[T]here is no burden of proof to be discharged in the matter of jurisdiction.").
89. See Appellate Body Report, Mexico- Corn Syrup, supra note 53,¶ 53 (drawing a distinction between issues that could deprive the panel of its "authority" and that "the Panel was bound to address [on] its own motion" and issues that the parties should raise);
90. see also AMERASINGHE, supra note 64, at 286. Notice, however, that the authority to examine issues of admissibility ex officio may also be expressly granted by the governing instruments of the tribunal. See, e.g., ECHR, supra note 55, art. 35.4.
91. Note, however, that in the context of the ICJ's ad hoc consent-based jurisdiction, a party who wishes to contest jurisdiction should raise the issue, given the potential operation of the doctrine of forum prorogatum. See generally Sienho Yee, Forum Prorogatum in the International Court, 42 GERMAN Y.B. INT'L L. 147 (1999).
92. See Appellate Body Report, Mexico- Corn Syrup, supra note 53, ¶ 50 (stating that "[a] Member that fails to raise its objections in a timely manner, notwithstanding one or more opportunities to do so, may be deemed to have waived its right to have a panel consider such objections"); see also id. I 64 ("[A] lack of prior consultations is not a defect that, by its very nature, deprives a panel of its authority ⋯ and that, accordingly, such a defect is not one which a panel must examine even if both parties remain silent thereon.").
93. See Camara Nacional Amicus Brief, Mexico-Soft Drinks, supra note 48, ¶ 19.
94. See Andreas Fischer-Lescano & Gunther Teubner, Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law, 25 Mich. J. Int'l L. 999 (2004);
95. see also Martti Koskenniemi & Paivi Leino, Fragmentation of International Law? Postmodern Anxieties, 15 LEIDEN J. INT'L L. 553, 574 (2002).
96. See, e.g., JOOST PAUWELYN, CONFLICT OF NORMS IN PUBLIC INTERNATIONAL LAW: HOW WTO LAW RELATES TO OTHER RULES OF INTERNATIONAL LAW (2003).
97. See Kwak & Marceau, supra note 40, at 465.
98. FITZMAURICE, supra note 13, at 434.
99. Id.
100. See, e.g., Tadit Defence Motion, supra note 72, ¶ 17.
101. See ABI-SAAB, supra note 53, at 60.
102. See DSU art. 1.1.
103. See id. art. 7.
104. See, e.g., Tadi( Defence Motion, supra note 72, ¶ 17;
105. see also Herbert W. Briggs, The Incidental Jurisdiction of the International Court ofJustice as Compulsory Jurisdiction, in VOLKERRECHT UND RECHTLICHES WELTBILD: FESTSCHRIFT FOR ALFRED VERDROSS 87 (K. Zemanek ed., 1960).
106. Tadić Defence Motion, supra note 72, ¶ 14.
107. See BLACK'S LAW DICTIONARY 815 (6th ed. 1990).
108. As Kenneth Carlston observed: A State, in submitting its dispute with another to the decision of an international tribunal, has certain fundamental rights which it may expect in full confidence will be respected⋯ . The tribunal must respect the law governing its creation and defining its powers as laid down in the compromis, and it must likewise observe certain other established rules of a fundamental character which inherently, under the generally accepted rules of law and justice, regulate the conduct of any judicial body. KENNETH S. CARLSTON, THE PROCESS OF INTERNATIONAL ARBITRATION 36 (1946) (emphasis added).
109. Notice, for example, the ICJ's limited field-jurisdiction in the Namibia opinion and in the Lockerbie case. See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276, Advisory Opinion, 1971 I.CJ. 16, 45 (June 21) [hereinafter Legal Consequences for Namibia];
110. see also Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. U.S.), 1998 I.CJ. 115, 130-31 (Feb. 27) [hereinafter Aerial Incident at Lockerbie]. In both cases, although the ICJ had undoubtedly no power to judicially review resolutions of United Nations organs, it assessed those resolutions as a matter of course, in the exercise of its judicial function, in order to decide on the merits of the cases which were under its field- jurisdiction. See Aerial Incident at Lockerbie, 1998 I.CJ. at 130-31; Legal Consequences for Namibia, 1971 I.CJ. at 45.
111. Appellate Body Report, Mexico-Soft Drinks, supra note 1, ¶ 45 (emphasis added).
112. See also Isabelle Van Damme, Inherent Powers of and for the WTO Appellate Body (Aug. 2008) (Working Paper), available at http://www.graduateinstitute.ch/ webdav/site/ ctei/shared/CTEI/publications/CTEI%20Working%20Papers/WPCTEI- InherentPowers AB29Aug.doc.
113. "Notably, panels have the right to determine whether they have jurisdiction in a given case, as well as to determine the scope of their jurisdiction." See Appellate Body Report, Mexico-Soft Drinks, supra note 1, ¶ 45; see also Nottebohm (Liech. v. Guat.), 1953 I.C.J. 111 (Nov. 18); Appellate Body Report, Anti-Dumping Act of 1916, supra note 72, ¶ 30;
114. Rio Grande Irrigation & Land Co., Ltd. (Gr. Brit. v. U.S.), 6 R. Int'l Arb. Awards 131, 135-36 (1923).
115. Appellate Body Report, Mexico-Corn Syrup, supra note 53, 1 36 (emphasis added).
116. Panel Report, United States-Continued Suspension of Obligations in the EC-Hormones Dispute, WT/DS320/R (Mar. 31, 2008) [hereinafter Panel Report, US-Continued Suspension].
117. Agreement on the Application of Sanitary and Phytosanitary Measures, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 U.N.T.S. 493 [hereinafter SPS Agreement].
118. See Panel Report, US-Continued Suspension, supra note 95, ¶ 6.54, upheld in Appellate Body Report, United States-Continued Suspension of Obligations in the EC- Hormones Dispute, ¶ 322-332, 736, WT/DS320/AB/R (Oct. 16, 2008).
119. Id. ¶ 7.276. [W]e want to stress that in reviewing the EC claims of violation of Article 23.1 read together with Article 22.8 and Article 3.7 of the DSU, our intention is not to substitute ourselves for a compliance panel under Article 21.5 of the DSU. We will make findings with respect to the second series of main claims of the European Communities with the only purpose to reach a conclusion on the violation of the provisions referred to in those claims. Id.
120. See Appellate Body Report, Mexico-Soft Drinks, supra note 1, ¶ 43.
121. See Application of the Convention on Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.) 11115-120 (Judgment of Feb. 26, 2007), available at http://www.icj-cij.org/docket/files/9113685.pdf;
122. see also Petrobart Ltd. v. Kyrgyz Republic, Arb. No. 126/2003 55 (Arb. Inst, of the Stockholm Chamber of Commerce 2005); Waste Mgmnt., Inc. v. United Mexican States, ICSID (W. Bank) Case No. ARB(AF)/00/3, ¶ 39 (NAFTA Ch. 11 Arb. Trib. 2004), 43 I.L.M. 967, 972 (2004). See generally LEONARDO NEMER CALDEIRA BRANT, L'AUTORITE DE LA CHOSE JUGEE EN DROIT INTERNATIONAL PUBLIC (2003);
123. Judicial Decisions Involving Questions of International Law: Protocol of an Agreement Between the United States and the Republic of Mexico for the Adjustment of Certain Contentions Arising Under What is Known as "The Pious Fund of the Californias", 2 AM. J. INT'L L. 893, 900 (1908); Vaughan Lowe, Res Judicata and the Rule of Law in International Arbitration, 8 AFR. J. INT'L & COMP. L. 38 (1996).
124. See supra notes 33-35 and accompanying text.
125. See Panel Report, India-Measures Affecting the Automotive Sector, ¶ 7.57-7.59, WT/DS146/R, WT/DS175/R (Dec. 21, 2001) [hereinafter India-Autos] (considering that there is neither textual nor case-based clear guidance on the applicability of the doctrine, because "many important interpretative issues would thus need to be considered in determining whether the doctrine of res judicata applies in WTO dispute settlement").
126. But see Appellate Body Report, European Communities-Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India, Recourse to Article 21.5 of the DSU by India, ¶ 93, WT/DS141/AB/RW (Apr. 8, 2003) (confirming, at least implicitly, the res judicata effect of unappealed panel reports adopted by the DSB). [I]n our view, an unappealed finding included in a panel report that is adopted by the DSB must be treated as a final resolution to a dispute between the parties in respect of the particular claim and the specific component of a measure that is the subject of that claim. Id. The Appellate Body thereby also confirmed the three pre-conditions for the res judicata effect to be triggered: (1) same parties; (2) same object matter ("specific component of a measure"); and (3) same cause of action or claim. See id. The Appellate Body equally confirmed the binding effect as between the parties of its own reports once adopted by the DSB. Appellate Body Report, United States-Import Prohibition of Certain Shrimp and Shrimp Products, ¶ 92-96, WT/DS58/AB/R (Oct. 12, 1998).
127. Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzow), 1927 P.C.I.J. (ser. A) No. 11, at 23-24 (Dec. 16) (dissenting opinion of Judge Anzilotti); India-Autos, supra note 102, ¶ 7.65;
128. see also SHANY, THE COMPETING JURISDICTIONS, supra note 14, at 22-23.
129. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS].
130. MOX Plant Case (Ir. v. U.K.), Request for Provisional Measures, No. 10, ¶ 51 (Int'l Trib. L. of the Sea 2001), 411.L.M. 405, 413 (2002) ("[T]he application of international law rules on interpretation of treaties to identical or similar provisions of different treaties may not yield the same results, having regard to, inter alia, differences in the respective contexts, objects and purposes, subsequent practice of parties and travaux preparatoires.");
131. see also Panel Report, Argentina-Poultry, supra note 22; Petrobart Ltd. v. Kyrgyz Republic, Arb. No. 126/2003 (Arb. Inst, of the Stockholm Chamber of Commerce 2005) (refusing to apply res judicata in an Arbitral Tribunal operating under the Stockholm Arbitration Institute to domestic proceedings in both a Kyrgyz Court and an UNCITRAL arbitration). Regarding the difference between national treatment in trade and investment agreements, see Nicholas DiMascio & Joost Pauwelyn, Nondiscrimination in Trade and Investment Treaties: Worlds Apart or Two Sides of the Same Coin?, 102 AM. j. INT'L L. 48 (2008).
132. Appellate Body Report, Mexico-Soft Drinks, supra note 1, 1 54 (quoting Panel Report, Mexico-Soft Drinks, supra note 3, at ¶ 7.14).
133. Id. ¶ 54 n.107. Granted, because there was no previous decision by a NAFTA panel, one of the conditions for the application of res judicata would not have been met anyway. Nevertheless, the discussion remains relevant for the question of lis pendens. See also Panel Report, Argentina- Poultry, supra note 22, ¶ 7.28, 7.33 n.53 (refusing to consider res judicata even though the same measure at issue had been previously found legal under MERCOSUR).
134. Carl Zeiss Stiftung v. Rayner & Keeler Ltd., [1967] 1 A.C. 853, 935 (H.L.) (emphasizing that the doctrine of "issue estoppel" in common law systems is neighbour to the notion of res judicata but does not require the "same cause of action"); see also Allen v. McCurry, 449 U.S. 90, 94 (1980) (citing Montana v. United States, 440 U.S. 147, 153 (1979)). For the doctrine of "related actions," see infra notes 163-167.
135. Some investment tribunals have applied the "same parties" requirement broadly to assert jurisdiction over claims. See, e.g., Dow Chem. Fr. v. Isover Saint Gobain, 110 J. du Droit Int'l 899 (1983), reprinted in 9 Y.B. Com. Arb. 131, 136 (1984) ("[Irrespective of the distinct juridical identity of each of its members, a group of companies constitutes one and the same economic reality (une realtte economique unique) of which the tribunal should take account⋯ ."); Amco Asia Corp. v. Indonesia, ICSID (W. Bank), Case No. ARB/81/1, Decision on Jurisdiction (1983), reprinted in 10 Y.B. Com. Arb. 61, 66 (1985) ("P.T. Amco was but an instrumentality through which Amco Asia was to realize the investment. Now, the goal of the arbitration clause was to protect the investor⋯ . [W]ould it not be fully illogical to grant this protection to the controlled entity, but not to the controlling one?"); Klockner v. Cameroon, 2 ICSID Rep. 9,17 (1983) ("This Agreement, although formally signed by the Government and SOCAME, was in fact negotiated between the Government and Klockner ⋯. [I]t is undeniable that it was manifestly concluded in the interest of Klockner ⋯."). Reinisch argues that this argument should work both ways: tribunals should also interpret the "same parties" criterion broadly so as to decline jurisdiction. August Reinisch, The Use and Limits of Res Judicata and Lis Pendens as Procedural Tools to Avoid Conflicting Dispute Settlement Outcomes, 3 LAW & PRAC. INT'L CTS. & TRIBUNALS 37, 57-77 (2004).
136. See supra note 106.
137. See Lowe, supra note 18, at 191.
138. Indeed, if an issue is to be examined by the tribunal at its own initiative, it should logically be something that the tribunal can examine relatively easily by looking at the constituent documents that confer jurisdiction on the tribunal. In contrast, in the current context of widely diverse and loosely integrated international courts and tribunals, the fact that another tribunal has already decided the dispute is not normally something that a second tribunal can find out for itself without the parties bringing the issue to the tribunal's attention. Hence, if only for purely practical reasons, res judicata, in the current international law context, would seem to relate more to the application or earlier conduct by the complainant, rather than to the very jurisdiction of the tribunal itself.
139. Consider Article 35 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which lists the situation of an application that "is substantially the same as a matter that has already been examined by the Court," that is, an extended version of res judicata as a question of admissibility, not jurisdiction. ECHR, supra note 55, art. 35.
140. See Reinisch, supra note 110, at 48.
141. Cuniberti, supra note 24, at 406.
142. See SHANY, THE COMPETING J URISDICTIONS, supra note 14, at 241.
143. See Cuniberti, supra note 24, at 383.
144. See infra notes 163-167.
145. See Cuniberti, supra note 24, at 412.
146. Id. at 383-84.
147. Moreover, even when it comes to formal, legal hierarchies between tribunals, Cuniberti has a point as his prime example the hierarchical superiority of an international tribunal over a domestic court. Id. at 396-99. Cuniberti refers, with support, to an early P.C.IJ. case which decided that overlapping proceedings before a mixed arbitral tribunal and a Polish domestic court on the one hand and the P.C.IJ. on the other hand cannot trigger lis pendens as these are "not courts of the same character." Certain German Interests in Polish Upper Silesia (F.R.G. v. Pol.), 1925 P.C.IJ. (ser. A) No. 6, at 20 (Aug. 25);
148. see also Cuniberti, supra note 24, at 405. Yet, Cuniberti then discovers with dismay that International Centre for Settlement of Investment Disputes (ICSID) tribunals started to disregard this hierarchy and now commonly apply lis pendens also to overlap between international (ICSID) proceedings and domestic court or arbitration proceedings, thereby implicitly accepting that the jurisdiction of an ICSID tribunal is comparable to, or of the same hierarchy as, that of a domestic court or tribunal. Cuniberti, supra note 24, at 399. In SGS v. Pakistan, for example, the ICSID tribunal explicitly considered-but ultimately did not apply-the lis pendens doctrine even though the parallel proceeding was one brought before a single ad hoc arbitrator pursuant to the arbitration clause of an investment contract. SGS Société Genérate de Surveillance S.A. v. Republic of Pakistan, ICSID (W. Bank) Case No. ARB/01/13, Decision on Objections to Jurisdiction, 42 I.L.M. 1290 (2003). See generally Compania de Aguas del Aconquija, S.A. v. Argentine Republic, ICSID (W. Bank) Case No. ARB/97/3 (2007); Empresas Lucchetti, S.A. v. Republic of Peru, ICSID (W. Bank) Case No. ARB/03/4 (2005); Noble Ventures, Inc. v. Romania, ICSID (W. Bank) Case No. ARB/01/11 (2005);
149. S.A.R.L. Benvenuti & Bonfant v. People's Republic of the Congo, ICSID (W. Bank) Case No. ARB/77/2 (1980), 21 I.L.M. 740 (1982). In Noble Ventures, the tribunal recognised a difference of order between international and domestic law, but reasoned that the umbrella clause led to an exception to this separation. Noble Ventures, ICSID ¶ 53-56. But, in contrast to SGS v. Pakistan, the tribunal in SPP v. Egypt refused to apply lis pendens when faced with parallel proceedings before "two unrelated and independent tribunals." Southern Pacific Properties (Middle East) Ltd. v. Arab Republic of Egypt, ICSID Case No. ARB/84/3, Decision on Jurisdiction (1985), 3 ICSID Rep. 112, 129 (1995).
150. See Reinisch, supra note 110, at 52.
151. Reinisch was asked to write a legal opinion in the Czech Republic's case before Swedish courts to set aside the ruling in CME Czech Republic B.V., which found the Czech Republic liable for $ 269,814,000. See Reinisch, supra note 110, at 37. See generally supra note 21. Reinisch wrote in favour of the earlier Lauder case, which denied all claims against the Czech Republic on the same facts. Reinisch, supra note 110, at 37. From that perspective, he may have had an incentive to write in favour of a broad application of lis pendens and res judicata in the international context.
152. Reinisch, supra note 110, at 48.
153. Id. at 48.
154. Id. at 48-50.
155. Id. at 50;
156. see also Gabriele Salvioli, Probltmes de Procedure Dans la jurisprudence Internationale, 91 RECUEIL DES COURS 533, 609 (1957) (deriving the notion of lis pendens from the applicability of a rule of res judicata).
157. See supra text accompanying notes 18-23.
158. Note that the Appellate Body in Mexico-Soft Drinks highlighted that it was "undisputed that no NAFTA panel as yet has decided the 'broader dispute' to which Mexico has alluded." Appellate Body Report, Mexico-Soft Drinks, supra note 1, ¶ 54.
159. The Permanent Court of International Justice faced an analogous problem in Factory at Chorzow and considered that the Court, when it has to define its jurisdiction in relation to that of another tribunal, cannot allow its own competency to give way unless confronted with a clause which it considers sufficiendy clear to prevent the possibility of a negative conflict of jurisdiction involving the danger of a denial of justice. Factory at Chorzow (F.R.G. v. Pol.), 1927 P.C.IJ. (ser. A.) No. 9, at 30 Quly 26).
160. The SPP v. Egypt tribunal put it more bluntly: "When the jurisdiction of two unrelated and independent tribunals extends to the same dispute, there is no rule of international law which prevents either tribunal from exercising its jurisdiction." Southern Pacific Properties (Middle East) Ltd. v. Arab Republic of Egypt, ICSID Case No. ARB/84/3, Decision on Jurisdiction (1985), 3 ICSID Reps. 112, 129 (1995). Similarly, the Inter-American Court of Human Rights refused to decline jurisdiction because similar proceedings were pending before the ICJ. The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99, 1999 Inter-Am. Ct. H.R. (ser. A) No. 16, at 60-65 (Oct. 1, 1999). Further, the Court held that it was an autonomous adjudicator and that conflicting interpretations of one same body of law was the sad consequence of a non-integrated legal system. Id.;
161. see also Camouco (Pan. v. Fr.), 39 I.L.M. 666, 678 (Int'l Trib. L. of the Sea 2000) (1TLOS refused to decline jurisdiction on the ground of lis pendens because similar proceedings were pending before French domestic courts). Courts ruled similarly in Certain German Interests in Polish Upper Silesia (F.R.G. v. Pol.), 1925 P.C.IJ. (ser. A) No. 6 (Aug. 25); Southern Pacific Properties, 3 ICSID; Holiday Inns S.A. v. Morocco, ICSID (W. Bank) Case No. ARB/72/1 (1972). But see SGS Societe Generate de Surveillance S.A. v. Republic of Pakistan, ICSID (W. Bank) Case No. ARB/01/13, Decision of the Tribunal on Objections to Jurisdiction, ¶ 161, 42 I.L.M. 1290, 1317-18 (2003). Although those cases reference differences between international and domestic courts, respectively, the fact remains that, to date, tribunals within the international system are generally less comparable than courts in many domestic systems.
162. Of course, in this case, the effect of the first proceeding would flow from the treaty clause, and not from the principle of lis pendens.
163. See infra Part V.
164. See supra notes 123-124 and accompanying text.
165. Article 35 of the European Convention on Human Rights classifies at least one instance of lis pendens-where the application "has already been submitted to another procedure of international investigation or settlement and contains no relevant new information"-as an issue of admissibility, not jurisdiction. ECHR, supra note 55, art. 35(2)(b).
166. See Kwak & Marceau, supra note 40, at 480.
167. But note that civil law traditions often have rules regarding so-called "related actions," discussed infra notes 163-167. Although these laws share core features of the common law principle of forum non conveniens, they derive from statutory provisions and may therefore be difficult to reconcile with common law approaches. See RONALD A. BRAND & SCOTT R. JABLONSKI, FORUM NON CONVENIENS: HISTORY, GLOBAL PRACTICE, AND FUTURE UNDER THE HAGUE CONVENTION ON CHOICE OF COURT AGREEMENTS 2 (2007) (not-ing that common law rules presume greater judicial discretion than analogous civil law rules).
168. Lowe, supra note 18, at 200.
169. Id. at 201.
170. This would be the case in most common law jurisdictions, one exception being Australia. Compare Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), with Oceanic Sun Line Special Shipping Co. Inc. v. Fay (1988) 165 C.L.R. 197, 243 (Austl.) (opinion of Deane, J.). See generally Spiliada Mar. Corp. v. Cansulex Ltd., [1987] 1 A.C. 460 (H.L. 1987) (appeal taken from Eng.); Brand & Jablonski, supra note 138.
171. The Appellate Body explicidy pointed this out, noting that "Mexico also stated that it could not identify a legal basis that would allow it to raise, in a WTO dispute settlement proceeding, the market access claims it is pursuing under the NAFTA." Appellate Body Report, Mexico-Soft Drinks, supra note 1,¶ 54. Indeed, Mexico's alleged right to higher sugar quotas in the U.S. market was only enshrined in NAFTA, not in the WTO. Thus, even where a NAFTA panel would somehow find itself an "inconvenient" forum, it could not refer the dispute to the alternative tribunal, here the WTO, because the WTO cannot decide on Mexico's sugar quota claims. In such event, the principle of forum non conveniens as it is known in domestic law cannot apply.
172. Cuniberti, supra note 24, at 421;
173. see also Factory at Chorzow (F.R.G. v. Pol.), 1927 P.C.IJ. (ser. A.) No. 9 (July 26); Int'l Law Ass'n, Recommendations on Lis Pendens and Res Judicata and Arbitration, Annex I, Res. No. 1/2006, June 8, 2006.
174. But see the rules on "related actions" which do grant judicial discretion, discussed infra notes 163-167.
175. Put differently, before both civil law courts as well as international tribunals, it is better to make preclusion arguments ("you do not have jurisdiction" or "the claim is inadmissible") rather than abstention arguments ("you have jurisdiction but should not exercise it").
176. Panel Report, Mexico-Soft Drinks, supra note 3, ¶ 7.1, 7.18.
177. Appellate Body Report, Mexico-Soft Drinks, supra note 1, 1 54 (highlighting a caveat repeated later in this paragraph as: "[w]e do not express any view on whether a legal impediment to the exercise of a panel's jurisdiction would exist in the event that features such as those mentioned above were present") (emphasis added).
178. Id. ¶ 57 (emphasis added).
179. Id. (emphasis added).
180. The four arguments are difficulties stemming from the common law roots of forum non conveniens, that convenience is largely geographical, an alternative forum must be able to decide the whole dispute, and that the principle of forum non conveniens implies judicial discretion.
181. Cuniberti, supra note 24, at 383.
182. Id. at 406.
183. Spiliada Mar. Corp. v. Cansulex Ltd., [1987] 1 A.C. 460, 476-78 (H.L. 1987) (appeal taken from Eng.).
184. See supra note 28 and accompanying text.
185. Cuniberti, supra note 24, at 383.
186. Id. at 424; see also Ernest A. Young, Institutional Settlement in a Globalizing Judicial System, 54 Duke LJ. 1143, 1236-43 (2005).
187. See Cuniberti, supra note 24, at 406-07.
188. Id. at 407.
189. See generally Bell, supra note 12.
190. Spiliada Mar. Corp. v. Cansulex Ltd., [1987] 1 A.C. 460, 478 (H.L. 1987) (appeal taken from Eng.).
191. LE DICTIONNAIRE DE L'ACADEMIE FRANCOISE DEDIE AU ROY 614 (Jean Baptiste Coignard ed., 1694) (le juge naturel as the court "in which a case belongs naturally, ordinarily, and by law");
192. see, e.g., INT'L COMM'N OF JURISTS, INTERNATIONAL PRINCIPLES ON THE INDEPENDENCE AND ACCOUNTABILITY OF JUDGES, LAWYERS AND PROSECUTORS: A PRACTITIONERS' GUIDE 7-11 (2004), available at http://www.icj.org/IMG/pdf/Guide.pdf; Shimon Shetreet, Judicial Independence: New Conceptual Dimensions and Contemporary Challenges, in JUDICIAL INDEPENDENCE: THE CONTEMPORARY DEBATE 590, 619 (Shimon Shetreet & Jules Deschenes eds., 1985).
193. See Ralf Michaels, Two Paradigms of Jurisdiction, 27 Mich. J. Int'l L. 1003, 1027-52 (2006) (contrasting the United States' "in or out" approach to jurisdiction and the European "us or them" approach, and arguing that judicial discretion, in the American context, tempers excessive assertions of jurisdiction). According to Michaels, it is this "externalization" which allows the United States to maintain its "unilateral" posture. Id. at 1037. Analogously, the international law's approach to jurisdiction, which is based on the constitutive instrument of each individual tribunal, might gain (in a con-text of expanded judicial settlement) from some form of judicial calibration such as forum non conveniens.
194. See NOUVEAU CODE DE PROCEDURE CIVILE [N.C.P.C.] art. 101, translated in The FRENCH CODE OF CIVIL PROCEDURE IN ENGLISH 20, art. 101 (Nicolas Brooke trans., 2007) ("If there is a link between matters which are before two different courts, which in the interests of justice requires that they should be determined together, one of the courts may be asked to decline jurisdiction and to refer the whole matter to the other.").
195. Cuniberti, supra note 24, at 406-07.
196. See Council Regulation 44/2001, On Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, art. 28, 2000 O.J. (L 12) 1, 9 (EC). Where related actions are pending in the courts of different Member States, any court other than the court first seised may stay its proceedings⋯ . For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. Id. (emphasis added). This provision has been described as "a robust doctrine of forum non conveniens" except in that only the second court seized can apply it. See Von Mehren, supra note 12, at 370.
197. ECHR, supra note 55, art. 35(2)(b) ("The [European] Court [of Human Rights] shall not deal with any application submitted under Article 34 ⋯ that is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or setdement and contains no relevant new information.") (emphasis added).
198. NAFTA art. 2005. [Disputes regarding any matter arising under both this Agreement and the [GAIT], any agreement negotiated thereunder, or any successor agreement (GATT), may be settled in either forum at the discretion of the complaining Party ⋯. Once dispute settlement procedures have been initiated under Article 2007 or dispute settlement proceedings have been initiated under the GATT, the forum selected shall be used to the exclusion of the other ⋯. Id. art. 2005, paras. 1, 6. (emphasis added).
199. See ROSENNE, supra note 13, at 519 ("[T]he true nature of the dispute at hand is the real factor to determine to which court or tribunal a particular dispute should be submitted.").
200. For the reasons discussed under res judicata and lis pendens, it may, indeed, be more appropriate to classify the principle of le juge natural or the natural forum as one that relates to admissibility rather than jurisdiction. See supra notes 113-114, 136 and accompanying text.
201. Nuclear Tests (Austl. v. Fr.), 1974 I.CJ. 253, 262 (Dec. 20);
202. see also Fisheries Jurisdiction (Spain v. Can.), 1998 I.CJ. 432, 437 (Dec. 4); Nuclear Tests (N.Z. v. Fr.), 1974 I.CJ. 457, 466 (Dec. 20).
203. See Olivos Protocol for the Settlement of Disputes in MERCOSUR art. 1(2), Feb. 18, 2002, 42 I.L.M. 2; NAFTA art. 2005; see also Consolidated Version of the Treaty Establishing the European Community art. 292, Dec. 29, 2006, 2006 O.J. (C 321) E/ 172, available at http://eur-lex.europa.eu/LexUriServ/ LexUriServ.do?uri=OJ:C:2006: 321E:0001:0331:EN:pdf.; Foreign Investment Protection and Promotion Agreement, Can.-Thail., art. XIII(3), Jan. 17, 1997, Can. T.S. 1998/29, available at http://www.mter national.gc.ca/trade-agreements- accords-commerciaux/assets/pdfs/THAILAND-E.PDF ("An investor may submit a dispute ⋯ to arbitration ⋯ only if: the investor has consented in writing thereto; and the investor has waived its right to initiate or continue any other proceedings . ⋯");
204. UNCLOS, supra note 105, art. 282 (underlying the stay in the proceedings in MOX Plant); Waste Mgmnt., Inc. v. United Mexican States, ICSID (W. Bank) Case No. ARB(AF)/00/3, 1 27 (NAFTA Ch. 11 Arb. Trib. 2004), 43 I.L.M. 967, 972 (2004) (discussing NAFTA art. 1121).
205. See generally Pauwelyn, supra note 46, at 997-1030.
206. See generally Appellate Body Report, Mexico- Soft Drinks, supra note 1.
207. See MOX Plant Case (no. 3) (Ir. v. U.K.), Suspension of Proceedings on Jurisdiction and Merits (Perm. Ct. Arb. 2003), 42 I.L.M. 1187, 1189-91 (2003) (where the Permanent Court of Arbitration opted for a stay in the proceedings pending the resolution of issues of E.C. law, including the possibility that Article 292 of the E.C. Treaty precluded the Permanent Court of Arbitration's jurisdiction in its entirety); see also Case C- 459/03, Comm'n v. Ireland, 2006 E.C.R. 1-4635; Southern Pacific Properties (Middle East) Ltd. v. Arab Republic of Egypt, ICSID Case No. ARB/84/3, Decision on Jurisdiction (1985), 3 ICSID Rep. 112, 129 (1995) (where the ICSID tribunal stayed its proceedings pending a decision of the French Cour de Cassation based on comity considerations).
208. See Decision of the Arbitrator, United States-Tax Treatment for "Foreign Sales Corporations", Recourse to Arbitration by the United States Under Article 22.6 of the DSU and Article 4.11 of the SCM Agreement, ¶ 6.27-6.33, WT/DS/108/ARB (Aug. 30, 2002) (holding that compensation corresponding to the full amount of the subsidy were "appropriate countermeasures," but stating that the determination of "appropriate coun- termeasures" should take into account the existence of multiple complainants, whenever this is the case).