Forum Shopping in International Adjudication: The Role of Preliminary Objections (Cambridge Studies in International and Comparative Law, Series Number 105)

"Forum shopping, which consists of strategic forum selection, parallel litigation and serial litigation, is a phenomenon of growing importance in international adjudication. Preliminary objections (or a party's placement of conditions on the existence and development of the adjudicatory process) have been traditionally conceived as barriers to adjudication before single forums. This book discusses how adjudicators and parties may refer to questions of jurisdiction and admissibility in order to avoid conflicting decisions on overlapping cases, excessive exercises of jurisdiction and the proliferation of litigation. It highlights an emerging, overlooked function of preliminary objections: transmission belts of procedure-regulating rules across the 'international judiciary'. Activating this often dormant, managerial function of preliminary objections would nurture coordination of otherwise independent and autonomous tribunals"-- Provided by publisher Cover Half-title Series information Title page Copyright information Dedication Table of contents Foreword Acknowledgments List of acronyms and abbreviations Table of cases Table of treaties Table of documents Introduction The research question and this book’s perspective The importance of the framework suggested in this book The thrust of the argument The structure of this book 1 The rise of forum shopping 1.1 Introduction 1.2 The transformation of international adjudication 1.2.1 The multiplication of international tribunals 1.2.2 From ad hoc consent to inbuilt consent to jurisdiction 1.2.3 The “privatization” of international litigation 1.2.4 The new market of international adjudication: let’s go shopping 1.3 Potential concerns arising from forum shopping 1.3.1 The delegation function of procedural norms in a dynamic context: the puzzle of inbuilt consent 1.3.2 The enabling and protective functions of procedural norms in a dynamic context: a balance between complainant’s autonomy ... 1.3.3 The allocative function of procedural norms in a dynamic context: a system-based versus a regime-based approach ... 1.3.4 Systemic- and party-driven concerns arising from conflicting rulings: the question of mutually (in)consistent rulings 1.4 Concluding remarks 2 Forum shopping and procedure 2.1 Introduction 2.2 Procedure 2.3 Procedure in the context of forum shopping: a new, emerging role for preliminary objections 2.3.1 Preliminary objections as procedural shields 2.3.2 Preliminary objections as transmission belts of procedure-regulating rules 2.4 Some limitations of the present approach 2.4.1 Three levels at which politics, policies, and preferences influence the assessment of forum shopping 2.5 Concluding remarks 3 Preliminary questions and preliminary objections 3.1 Introduction 3.2 The concept of preliminary questions and objections in international adjudication 3.2.1 Material character and effect of preliminary questions 3.2.2 “Timeline-related” character and effect of preliminary questions 3.3 Procedure versus substance, back again 3.3.1 Procedure mutates into substance, and vice versa: a contextual distinction 3.3.2 A functional and contextual demarcation method based on the object of the request and the controverted claims 3.4 Preliminary questions and facts entangled with the merits: practical alternatives 3.4.1 Alternative 1: postponing the decision on the preliminary question until the merits stage 3.4.2 Alternative 2: provisionally concluding on facts related to the merits at the preliminary stage 3.4.3 Alternative 3: definitively concluding on the issue related to the merits at the preliminary stage 3.5 Concluding remarks 4 The source and contours of international tribunals’ authority to rule on preliminary questions 4.1 Introduction 4.2 Adjudicatory jurisdiction, principal jurisdiction, incidental jurisdiction, and the inherent power to rule on preliminary ... 4.2.1 Disentangling the concept of adjudicatory jurisdiction 4.2.2 Inherent powers (or inherent jurisdiction) in international tribunals 4.2.3 Limitations to inherent jurisdiction 4.2.4 The power to rule on preliminary questions as inherent jurisdiction 4.3 The scope of the applicable law of preliminary objections 4.3.1 Preliminary objections may draw on “all international law” 4.3.2 Deriving the scope of preliminary objections in WTO adjudication from the scope of applicable law, and vice versa 4.4 The stabilizing effect of a decision on a preliminary question 4.4.1 Decisions within principal jurisdiction versus decisions beyond principal jurisdiction 4.4.2 Decisions on preliminary questions (procedural res judicata) and decisions on the merits (substantive res judicata) 4.5 Concluding remarks 5 Jurisdiction and admissibility 5.1 Introduction 5.2 A distinction that makes a difference 5.2.1 Traditional reasons for a dual categorization 5.2.2 The dual categorization and forum shopping 5.3 Three typical approaches to jurisdiction versus admissibility 5.3.1 The indifference approach: jurisdiction and admissibility as acceptability 5.3.2 The objectivist approach: jurisdiction as a tribunal-centered concept, admissibility as a claim-centered concept 5.3.3 The “conventionalist–residualist” approach: jurisdiction as consent, admissibility as a residual category 5.4 Addressing forum shopping strategies through preliminary questions: jurisdiction or admissibility? 5.4.1 Forum shopping raises jurisdictional questions: the direct model of jurisdictional organization/procedural coordination 5.4.2 Forum shopping raises questions of admissibility: the indirect model of procedural coordination 5.5 Concluding remarks 6 International tribunals’ discretion to (not) exhaust principal jurisdiction and forum shopping 6.1 Introduction 6.2 Discretion and its dimensions 6.3 Discretion to dismiss 6.3.1 Stating the obvious: tribunals are meant to decide on the merits of admissible claims under their jurisdiction 6.3.1.1 The prohibition of non liquet and discretion not to exhaust principal jurisdiction 6.3.2 Discretion to dismiss and the purpose of adjudication: a survey on discretion not to exhaust jurisdiction over admissible ... 6.3.2.1 The “essential third party” rule: discretionary or peremptory dismissal? 6.3.2.2 Mootness, declaratory judgments, and the outer limits of discretion to dismiss 6.3.2.3 Confirming discretion to dismiss in the context of purely declaratory judgments in the WTO context: measures revoked ... 6.3.2.3.1 Measures terminated or modified that still affect the operation of a WTO-covered agreement 6.3.2.3.2 Measures terminated or modified that constitute a mutually agreed-upon solution between the disputing parties ... 6.3.2.3.3 Measures terminated or modified that lead to the mootness of the recommendation 6.3.2.4 Confirming discretion to dismiss in the context of purely declaratory judgments in the WTO context: judicial economy 6.3.3 Partial conclusion: the limited role of discretion to dismiss in relation to forum shopping 6.4 Discretion to stay: a window of opportunity 6.4.1 Discretionary stays as case management: survey of procedural rules 6.4.2 Discretionary stays and the WTO DSU time limits 6.4.3 Discretionary stays and forum shopping: examples from practice 6.5 Abstention doctrines in international adjudication: a potential way forward? 6.6 Concluding remarks 7 Principles and rules permitting ­procedural coordination through the prism of preliminary objections 7.1 Introduction 7.2 Exclusive jurisdiction clauses 7.2.1 Exclusive jurisdiction clauses generally 7.2.2 Is Article 23 of the DSU an exclusive jurisdiction clause, and does this really make the WTO an “absolute” jurisdiction? 7.3 Fork-in-the-road clauses 7.3.1 Fork-in-the-road clauses generally 7.3.2 Fork-in-the-road clauses in the investment arbitration context 7.3.3 Fork-in-the-road clauses in the human rights context 7.3.4 Fork-in-the-road clauses in the international trade context 7.4 Subsidiary jurisdiction clauses 7.5 Preferential jurisdiction clauses 7.6 The protection of res judicata and collateral estoppel 7.7 A protection of lis pendens? 7.8 Aggregation doctrines 7.9 Concluding remarks Conclusion A procedural tack on forum shopping A summary of the book Forum shoppers, preliminary objectors, and the case-by-case management of jurisdictional overlaps References Articles, contributions to collective works, course collections and speeches Books Index Series information continued International adjudication is changing, and so is the international lawyer's toolbox. This book discusses the recent multiplication of international tribunals and focuses on widely used procedural objections (namely preliminary objections) as a means to tackle the emerging phenomenon of forum shopping in public international law.