Conflicts Between Adjudicators Applying International Law

The proliferation of international adjudicating bodies and the increasing activities of national courts pronouncing on international law gives rise to the question of how to address potential conflicts between the jurisdiction of different courts, tribunals and panels. Certain rules exist in different contexts, for example, the ECJ’s relationship to national courts of the EU member states is governed by Article 234 ECT as examined later in this chapter in the Bosphorus case. However, how a WTO/DSU Panel decision in trade matters relates to a decision of the ECJ is less clear and the litigation around the EC “Banana Market Order” in International Fruit gives rich evidence as to the lack of any applicable rule which goes beyond the EC or the WTO rules respectively. The question of competing jurisdictions of international courts and tribunals and the jurisdictional relations between national and international courts have recently been covered in excellent textbooks by one author and it is not intended to repeat here what is said there. However, it is submitted that the usual techniques known from international procedural law and conflict of laws such as lis pendens or forum non conveniens may be the appropriate approaches. The recognition of foreign judgments by national courts outside the rules of the relevant Conventions and Regulations (which provide special regimes hardly acceptable in an unregulated global environment) provide ample guidance as to how to deal with competing jurisprudence in the international field.