Forum Shopping before International Tribunals: (Real) Concerns, (Im)Possible Solutions
43 Pages Posted: 17 Nov 2012
Date Written: 2009
This article pursues Professor Yasuhei Taniguchi's inclination for procedural questions and applies it to the central problem in one of Taniguchi's most celebrated rulings, Mexico-Soft Drinks' (a case he chaired on appeal), namely, forum shopping before international tribunals.The article examines the nature and potential concerns of the relatively new phenomenon of forum shopping among international tribunals. Further, it asks the question whether domestic law principles such as res judicata, lis pendens, and forum non conveniens could be used to alleviate such concerns. The article finds that, to the extent these principles apply before international tribunals, they fail to address the problem.Instead, states should regulate forum shopping explicitly in their treaty regimes, and international tribunals should defer to such explicit treaty clauses. The article identifies the distinction between questions of a tribunal's jurisdiction and questions of admissibility of claims as key to the implementation of jurisdictional coordination-be it through general principles of law or treaty rules on forum selection.The article also argues that to deal with the rise of forum shopping in international adjudication, more thought should be given to the question of whether tribunals have or should have some margin of judicial discretion not to exercise jurisdiction in cases in which orum shopping is at stake. To put these proposals in dynamic context, the article uses four variables, or scales, that will impact the assessment of both concerns and solutions for forum shopping among international tribunals, namely (1) a regime vs. system approach to international tribunals, (2) a party- focus VS. l(al3yfous ) consensunal vs. ompulsry juirisdictin, -andl (4) specific vs. general jurisdiction.
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