Roberto Bruno LL. M. Candidate ë97



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Access of Private Parties to International Dispute Settlement: A Comparative Analysis

Roberto Bruno

LL.M. Candidate ë97

Professor Joseph H. H. Weiler

LL.M. Paper Supervisor

Table of Contents

Introduction 3

Part I: An Overview of The Historical and Theoretical Framework 5

Part II: Diplomatic Protection v. Delocalization 37

1. The Principle of Diplomatic Protection 37

1.1. (a) The Two Pillars of the Mechanism of Diplomatic Protection: The Nationality of Claims 39

1.1. (b). (Continued) The Exhaustion of Local Remedies 41

2. Problems with the Application of the Principle of Diplomatic Protection: How to Determine the Nationality of Corporations 46

2.1. Some Remarks on the Nationality of Corporations 47

2.2. The ICJ’s Case Law on the Nationality of Corporations: the Barcelona Traction Case 49

2.3. A Shift in the ICJ’s Approach to the Issue of the Nationality of Corporations: the ELSI Case 56

2.4. Concluding Remarks on Nationality of Corporations 60

3. The Unsuitability of Diplomatic Protection in the case of Multinational Enterprises 63

4. The Regulatory Framework of International Economic Activities 68

5. The Call for Delocalization 72

Part III: International Economic Dispute Settlement Mechanisms 82

A. The International Centre for the Settlement of Investment Disputes (ICSID) 82



1. Background 82

2. The Issue of Consent 83

3. Jurisdiction Ratione Personae and Ratione Materiae 85

4. The Delocalization of ICSID 90

5. Overview of ICSID Administration and Procedure 97

6. Concluding Remarks on ICSID 103

B. The North American Free Trade Agreement (NAFTA) 106



Introduction 106

a. The NAFTA Investment Dispute Settlement Mechanism 106



1. The NAFTA and Investments: Some Thoughts 106

2. Investment Disputes 108

3. Jurisdiction Ratione Materiae and Ratione Personae 109

4. Consent and Waiver 111

5. Governing Procedural Rules 114

6. Consolidation of Claims 118

7. Awards 120

8. Concluding Remarks 121

B. The NAFTA Panel System on Antidumping and Countervailing Duties 122



9. The Background of the Dispute Settlement Mechanism under Chapter XIX 122

10. General Remarks on the Panel Review of Statutory Amendments 123

11. Introductory and General Remarks on the Panel Review of Final Determinations 124

12. Review of Final Determinations and Private Parties: Request and Formation of the Panel 125

12.1. (Continued) Procedure before the Panel 130

13. Concluding Remarks on Chapter XIX 137

c. The Environmental and Labor Cooperation Agreements 138



14. A Limited but Important Role for Private Parties 138

d. Concluding Remarks on the NAFTA 141



Part IV: The European Convention on Human Rights (ECHR) 143

1. Background 143

2. Goals and Structure of the ECHR 144

3. The Individual Application Procedure 146

4. The Position of Private Parties during the Examination of the Merits by the Commission 152

5. Position of Private Parties in the Proceedings after the Commission’s Final Report 153

6. The Innovations of the Eleventh Protocol and Concluding Remarks on the ECHR 158

Part V: Conclusions and Some Thoughts on International Trade Disputes 162

Bibliography 173

Acknowledgments

There have been some moments during the academic year when I was not entirely sure whether I could finally write this paper or not. If this has finally been possible is not just thanks to my efforts and determination, but also to the many people who have provided me their precious advice. Therefore, I think they deserve to be acknowledged now that the paper is done.

First, I would like to thank my course mates in the Seminar: the European Union, the NAFTA, and the World Trade Organization, at Harvard Law School, in conjunction with which this paper has been written. Virtually each of them has had some suggestions for me. Second, I would like to thank those who operate in the field of international economic law at the academic or professional level, and have been so kind to dedicate some of their precious time to advise me on my paper. Their advice has been extremely helpful. This has been the case of Professor Ernst-Ulrich Petersmann,1 Professor John H. Jackson,2 Professor Robert Hudec,3 Dr. Escobar,4 Dr. Parra,5 Mr. Small6, and Mr. Von Mehren7. Finally, there is one person to whom I feel like owing my most special thanks. The reason is that this is the person who has constantly encouraged me to keep working on the paper, has provided me with many unique ideas, and has impressed me for his outstanding expertise and the depth of his thoughts. I just hope that this paper may satisfy his very high standards. This person is my LL.M. paper supervisor, Professor Joseph H. H. Weiler,8 to whom I wish to say: Grazie !
Roberto Bruno

LL.M. Candidate ‘97

16 May 1997

Introduction


Access of private parties to international dispute settlement, that is, the settlement of disputes between states and private parties of another state governed by substantive and procedural rules of international law, is a key issue of international law. The reason is two-fold. First, this paper embraces the view that, for the individual to be fully recognized as a subject of international law, her substantive rights must be accompanied by the procedural capacity to enforce them. Substantive and procedural rights are two sides of the same coin, the coin being that of a complete and articulated subjectivity of international law, whereby the individual could fully enjoy an adequate and effective protection and participate in the process of international law. On the other hand, without this procedural capacity, private parties’ substantive rights under international law would only be nominal, and thus quite meaningless. Full subjectivity of the individual is also relevant for the purposes of democratizing the process of international law, and recognizing the key role played by the individual in our contemporary society. Second, those international dispute settlement mechanisms which have accorded access of private parties, mostly in the areas of international economic activities and human rights, have served as the Trojan horse for the individual to penetrate the realm of international law. The practice of international law derived from and represented by these dispute settlement mechanisms has contributed, in a decisive manner and especially in this century, to defeat the strong, long-lasting and anachronistic yet prevailing positivist view whereby states are the only subjects of rights and duties of international law, and individuals are its mere objects.

This paper starts with the historical and theoretical framework in which the issue of the individual’s subjectivity has been debated, and takes a position on this issue; this framework also comprises an overview of the developments in the practice of international law up to the first half of this century in respect of individual’s access to international dispute settlement. Then, in Part II, it moves to the discussion of the traditional mechanism of diplomatic protection, that has been for a long time, and still is in some areas of international law, the indirect and sole way to enforce the rights of private parties. In particular, this discussion highlights the limits of diplomatic protection and the need to look for better alternative models where the private parties play a direct and more active role in enforcing their rights. Delocalization of international dispute settlement is deemed to be the key element of these alternatives. Once the general discussion is completed, the paper pursues what is perhaps its most ambitious goal: the comparative analysis of the main existing mechanisms that accord access of private parties, and are established in the context of international organizations and treaties. The discussion of these mechanisms focuses on those elements of a more direct relevance for the issue of access of private parties, and the comparison seeks to take place on an horizontal level, that is, by looking at how these same elements are present and regulated in the various mechanisms. Finally, the paper speculates on the necessity and the opportunity to open up to private parties the currently state-to-state mechanism for the settlement of international trade disputes.


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