An apple of discord: pre-trial procedure in international justice and in the jurisprudence of the EAEU Court

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Author: Aleksei Ispolinov, Olga Kadysheva

DOI: 10.21128/2226-2059-2021-2-93-110

Keywords: International Court of Justice, investment arbitration, pre-trial procedure, the Court of the EAEU

Abstract

The present article assesses the approaches elaborated in the decisions of international courts and tribunals as well as in the doctrine of international law towards the legal value of pre-trial requirements. The role and significance of such requirements started to increase since almost in any case submitted to a court or arbitration the respondent states try firstly to question either jurisdiction of the court or tribunal in the specific case or admissibility of the claim. As a rule, such objections are based on allegations that the claimant failed to comply with pre-trial requirements such as direct negotiations or prior notification of the respondent about the claimant’s intention to submit the dispute for compulsory adjudication. Despite an absence of customary rule of international law about the necessity and precise content of such pre-trial requirements, international treaties stipulating compulsory dispute adjudication almost by default contain such pre-trial requirements of different kind and combination. Current jurisprudence of international courts and tribunals (International Court of Justice, Court of Eurasian Economic Union, and investment arbitration tribunals) dealing with such objections by the respondents reveals a lack of consensus in the treatment of pre-trial requirements either as jurisdictional or admissibility objections. The commentators also differ on assessment of the role and normative significance of pre-trial requirement. Nevertheless, the authors view such requirements as one of jurisdictional characteristics based on the consent of the states to limits their sovereignty by agreeing in advance in the applicable international treaty to submit any future disputes for compulsory adjudication subject to stipulated limitations and conditions, for instance, necessity for a claimant to follow certain pre-trial requirements. A claimant’s failure to follow such requirements should be considered as sufficient ground for a court or tribunal handling such claim, to declare a lack of its jurisdiction in the case and to refuse to consider the merits of the case.

About the authors: Alexey Ispolinov – Doctor of Sciences in Law, Moscow, Russia; Olga Kadysheva – Candidate of Sciences in Law, Associate Professor, Department of International Law, Faculty of Law, Lomonosov Moscow State University, Moscow, Russia.

Citation: Ispolinov A., Kadysheva O. (2021) Yabloko razdora: dosudebnaya protsedura v mezhdunarodnom pravosudii i v praktike Suda EAES [An apple of discord: pre-trial procedure in international justice and in the jurisprudence of the EAEU Court]. Mezhdunarodnoe pravosudie, vol. 11, no. 2, pp. 93–110. (In Russian).