Abstract
Intervention is one of the most significant factors distinguishing purely bilateral arbitration from international judicial proceedings. Articles 62 and 63 of the Statute open this possibility to third States; however, the interpretation of these provisions is problematic, specifically because of the absence of any form of compulsory jurisdiction under the Statute. Notwithstanding these difficulties, the Court’s case law has by now shaped the features of these two forms of intervention.
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Notes
- 1.
See above, Sect. 1.3.
- 2.
- 3.
North American Free Trade Agreement, Article 2008(3): ‘A third Party that considers it has a substantial interest in the matter shall be entitled to join as a complaining Party on delivery of written notice of its intention to participate to the disputing Parties and its Section of the Secretariat’. Third Party participation is actually encouraged, as Article 2008(4) stipulates:
If a third Party does not join as a complaining Party in accordance with paragraph 3, it normally shall refrain thereafter from initiating or continuing: (a) a dispute settlement procedure under this Agreement, or (b) a dispute settlement proceeding in the GATT on grounds that are substantially equivalent to those available to that Party under this Agreement regarding the same matter in the absence of a significant change in economic or commercial circumstances.
- 4.
Institut de Droit international, The Hague Session (1875).
- 5.
According to Article 56,
The Award is only binding on the parties who concluded the ‘Compromis’. When there is a question of interpreting a Convention to which Powers other than those concerned in the dispute are parties, the latter notify to the former the ‘Compromis’ they have concluded. Each of these Powers has the right to intervene in the case. If one or more of them avail themselves of this right, the interpretation contained in the Award is equally binding on them.
- 6.
Article 84 reads:
The Award is not binding except on the parties in dispute. When it concerns the interpretation of a Convention to which Powers other than those in dispute are parties, they shall inform all the Signatory Powers in good time. Each of these Powers is entitled to intervene in the case. If one or more avail themselves of this right, the interpretation contained in the Award is equally binding on them.
- 7.
- 8.
Institut de droit international, Resolution on ‘Judicial and Arbitral Settlement of International Disputes Involving More Than Two States’, Berlin Session, 1999, preamble. The practice developed already under the PCIJ excludes intervention (in both its forms) in the framework of advisory proceedings: see Hudson (1943), pp. 424ff.
- 9.
See Torres Bernárdez (2002), p. 1002.
- 10.
Merrills (2011), p. 295.
- 11.
Hambro (1975), pp. 398ff., mentioned that ‘a great number of States (…) take a keen interest in following the cases and see whether they would or should intervene’.
- 12.
On the ‘hotly debated’ question of access to the case file for the purposes of Articles 62 and 63 see Chinkin (2012a), pp. 1539ff.
- 13.
See Barbados v. Trinidad and Tobago, RIAA 27, p. 156, para. 10, indicating that the President of the Arbitral Tribunal had refused to provide Guyana with a copy of the application and of the written pleadings by relying on ‘the wishes of the parties’.
- 14.
Torres Bernárdez (2002), p. 997, further arguing that ‘the particular nexus established between the parties from the institution of the proceedings has become less exclusive with the passing of time, in view of the need to protect similarly specific third-state rights or general interests or social values of the international community’.
- 15.
Johns, Pelckz (2013).
- 16.
- 17.
Rosenne (1993), p. 30.
- 18.
Thirlway (2003), p. 31.
- 19.
See only Rosenne (1993), p. 33.
- 20.
- 21.
See the discussion below, Sect. 15.2.
- 22.
Cf. the arbitral award on the Interpretation of the London Agreement of 9 August 1924 (Germany, Reparation Commission), 24 March 1926, RIAA 2, pp. 876–883, p. 878, expressly stating that part of the decision ‘is also given as between the German Government and the Polish Government’—the latter having intervened in the case. Cf. further Lelarge (2009), pp. 43–44.
- 23.
See Davì (1984), p. 131.
- 24.
See below, Sect. 15.2.
- 25.
Rosenne (1993), p. 33.
- 26.
Ibid.
- 27.
- 28.
See Chinkin (1986), p. 502.
- 29.
See their joint dissenting opinion in Nicaragua v. Colombia, Application by Costa Rica for Permission to Intervene, ICJ Reports 2011, p. 401 at 403, para. 3.
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Forlati, S. (2014). Introduction to Part III. In: The International Court of Justice. Springer, Cham. https://doi.org/10.1007/978-3-319-06179-5_13
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