Let’s (Not) (Dis)Agree to Disagree!? Some Thoughts on the ‘Dispute’ Requirement in International Adjudication

The Law and Practice of International Courts and Tribunals, Forthcoming

32 Pages Posted: 25 Feb 2020

Date Written: January 27, 2020

Abstract

International courts and tribunals only enjoy jurisdiction to settle a ‘dispute’. ‘Dispute’ requires disagreement. However, what if the parties disagree over whether there actually exists such disagreement? What if, before the International Court of Justice, the respondent argues that there is no ‘dispute’ because it declined to react to the applicant’s contentions? In other words, can a disputing party avoid a dispute by playing dead? On the other hand, where to draw the line in order to prevent the applicant from seizing an international court or tribunal where there is in fact no real disagreement among the parties? This article critically assesses the Court’s case law on the ‘dispute’ requirement and argues for a fragmented approach to ‘dispute’ in international adjudication that carefully defines this jurisdictional requirement along the lines of the judicial function of the respective international judicial dispute settlement forum.

Keywords: Dispute; International Court of Justice; International Arbitration; Judicial Function

Suggested Citation

Kulick, Andreas, Let’s (Not) (Dis)Agree to Disagree!? Some Thoughts on the ‘Dispute’ Requirement in International Adjudication (January 27, 2020). The Law and Practice of International Courts and Tribunals, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3526377

Andreas Kulick (Contact Author)

University of Tuebingen ( email )

Wilhelmstr. 19
72074 Tuebingen, Baden Wuerttemberg 72074
Germany

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