Abstract
The Court’s power to regulate the exercise of its functions, as set out by Article 30 of the Statute, is broader than the inherent power of arbitral tribunals to regulate proceedings because it includes, notably, the power to regulate the composition of the Bench. In exercising this power, the Court is bound to respect the Statute; whenever the Rules of Court entrust specific choices to the parties, this reflects a solution expressed by the former instrument. Other forms of procedural flexibility depend, to some extent, on the will of the parties but are subject to an assessment of opportunity by the Court. This is the case, in particular, of Article 101 of the Rules of Court. Article 30 of the Statute also provides a legal basis for the adoption of the Court’s Practice Directions; although their formal status is not fully clear, they enhance the Court’s control over contentious proceedings and its properly judicial role.
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Notes
- 1.
- 2.
ICJ Reports 1990, p. 21ff. Cf. also Thirlway (1996), pp. 390ff.
- 3.
Scerni (1938), p. 586. Of course, the question remains open as to what exactly is compatible or, conversely, incompatible with the Statute.
- 4.
Kolb (2009), p. 6.
- 5.
According to Article 33 of the 1999 Hague Convention, ‘When a Sovereign or the Chief of a State is chosen as Arbitrator, the arbitral procedure is settled by him’. Cf. also Article 56 of the 1907 Convention. This option has lost most practical relevance in contemporary arbitral practice; the Beagle Channel arbitration is a notable exception.
- 6.
See already Article 15 of the Projet de règlement pour la procédure arbitrale internationale adopted by the Institut de droit international at The Hague session of 1875.
- 7.
Article 12(1): ‘In the absence of any agreement between the parties concerning the procedure of the tribunal, or if the rules laid down by them are insufficient, the tribunal shall be competent to formulate or complete the rules of procedure’.
- 8.
Article 5: ‘Unless the parties to the dispute otherwise agree, the arbitral tribunal shall determine its own procedure, assuring to each party a full opportunity to be heard and to present its case’.
- 9.
Article 17(1). See also Article 15(1) of the Inter-State and IOS Optional Rules.
- 10.
- 11.
Interestingly, the English version of Article 30 of the PCIJ Statute was drafted in more restrictive terms: ‘The Court shall frame rules for regulating its procedure. In particular, it shall lay down rules for summary procedure’ (emphasis added). However, the French text was much more similar with the corresponding provision of the ICJ Statute: ‘La Cour détermine par un règlement le mode suivant lequel elle exerce ses attributions. Elle règle notamment la procédure sommaire’.
- 12.
See below, Sect. 4.2.2. Cf. for example the Rules of procedure in the Ara Libertad Arbitration (Argentina v. Ghana), which were adopted by the arbitral tribunal, after hearing the parties, as an annex to its Procedural Order No. 1, of 31 July 2013 (www.pca-cpa.org, last accessed 30 December 2013): Article 7 of the Rules entrusts the ultimate decision on challenges to the President of the ITLOS.
- 13.
See further below, Sect. 4.2.
- 14.
See further below, Sect. 4.3.
- 15.
In a different context, Article 38(2) of the Statute also envisages ‘the power of the Court to decide a case ex aequo et bono if the parties agree thereto’. This seems to imply that the Court may take the initiative of suggesting that a specific dispute should not be decided on the basis of existing international legal rules. Yet, it is unlikely that the Court will ever take such a step. The restrictive reading of Article 38(2) that emerges from its case law (see Pellet 2012, p. 793) is in itself an indication that a specific and unequivocal request by the parties would be required in practice.
- 16.
See further below, Chap. 7. Moreover, under Article 88(2) of the Rules of Court, the Court records an out-of-court settlement in the order for the removal of a case from the general list only the parties ‘so desire’.
- 17.
See Scerni (1938), p. 593.
- 18.
Article 101 refers only to the Articles included in Part III of the Rules with the exception of Articles 93 to 97, concerning judgments.
- 19.
Guyomar (1983), pp. 636ff.
- 20.
Provisions to a similar effect are included in Articles 53, 55, 58(2), 66 and 67 of the Rules of Court.
- 21.
In the Court’s Press Communiqué No. 2001/32 of 31 October 2001, it is stated that the Practice Directions ‘involve no alteration to the Rules of Court, but are additional thereto’. On earlier developments see Watts (2002), pp. 247–248.
- 22.
The latest version of the CJEU Practice Directions to parties concerning cases brought before the Court was adopted on 25 November 2013: see Official Journal of the European Union, L 31 of 31 January 2013, p. 1.
- 23.
The ECtHR’s Practice Directions, which are issued by the President of the Court to provide clarification on aspects of the Court’s procedure, are available at www.echr.coe.int, last accessed on 20.12.2013.
- 24.
The ITLOS issued its Guidelines concerning the preparation and presentation of cases before the Tribunal on 28 October 1997, ITLOS/9, 14 November 2006, are available on the ITLOS website, www.itlos.org.
- 25.
- 26.
- 27.
Anzilotti (1915), p. 103.
- 28.
This was possible under Article 32 of the 1922 Rules, corresponding to Article 101 of the Rules of Court currently in force.
- 29.
See above in this paragraph.
- 30.
Emphasis added. Paras. (2) and (3) further require that reasons be given for the late production and indicate that admission of new documents in absence of the other party’s consent will be authorised only exceptionally.
- 31.
See below, Chap. 5.
- 32.
The problems arising in connection to the excessive volume of pleadings and documents, also in terms of translation costs, are addressed also by Practice Direction IV: see again Watts (2002), p. 248. Moreover, Practice Directions IX bis and ter provide the parties with guidance concerning the possibility to refer, during oral proceedings, to documents which are ‘part of a publication readily available’ and as to the preparation of folders for the convenience of the judges, while Practice Direction IX quarter regulates the use at the hearing of audio–visual materials not enclosed with the written pleadings.
- 33.
Cf. for instance the letter sent by the Registry to Qatar and Bahrain, on 5 July 1999, informing them of the Court’s decision that no further round of written pleadings would take place in their case, but that the filing of supplemental documents would be permitted and that ‘[t]hese documents might be accompanied by a brief commentary of no more than one page per document limited to placing them in the context of the written pleadings; in particular, the provenance of the document and how it relates to the proceedings should be described’.
- 34.
Cf. also Practice Direction II on the content of the pleadings and Practice Direction XI on the oral pleadings concerning provisional measures.
- 35.
Practice Direction VI.
- 36.
Watts (2002), p. 255.
- 37.
Yee (2009), p. 687.
- 38.
Watts (2002), p. 255.
- 39.
See for instance Press Release No. 2004/30 of 30 July 2004, ‘The International Court of Justice takes measures for increasing its productivity’, communicating some changes in the Practice Directions and further stating: ‘In addition, the Court seeks better compliance by States parties to cases with its previous decisions aimed at accelerating the Court’s procedure, which it intends to apply more strictly’.
- 40.
In the words of sir Arthur Watts, ‘Despite some reservations about their particular provisions, the adoption of these nine Practice Directions, as a general development in the practice and procedure of the International Court, is to be warmly welcomed as a demonstration of the Court’s growing judicial self-confidence and maturity’: Watts (2002), p. 247.
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Forlati, S. (2014). The ICJ’s Power to Adopt Rules of Court and Practice Directions. In: The International Court of Justice. Springer, Cham. https://doi.org/10.1007/978-3-319-06179-5_3
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