Global Regulators? The Shifting Role of International Courts

Abstract

The impressive rise in the number and activity of international courts and tribunals over the past quarter of a century was accompanied by a little-noticed qualitative change in the role of adjudication, and of litigation more broadly, away from settling bilateral disputes and towards managing legal regimes. A key indicator of this shift is the increased willingness of courts and tribunals to award performance-type remedies, establishing the specific conduct to be adopted by litigants. Whereas previously international courts were hesitant regarding the very possibility of issuing direct injunctions, over the past decade adjudicators, from the International Court of Justice to European and Inter-American Courts of Human Rights to ICSID Tribunals, have turned to performance-type remedies, determining in detail the conduct that states must adopt in order to fulfil their obligations and avoid future responsibility.

Keywords: International Courts; Judicial Remedies; Performance Remedies