Assessment of arbitration and JUDICIAL SETTLEMENT IN THE PRESENT CONTEXT OF international relations

Compliance with the norms of international law by state and non-state actors represents an indispensable prerequisite of an international system governed by the rule of law. In a civilized world, disputes between states and other actors must be settled peacefully.

In the absence or failure of a negotiated settlement of dispute procedure, the question arises as to which extent current international law prescribes an obligation to resort to a specific method such as arbitration or adjudication. The Charter of the United Nations (Article 33) does not provide for such an obligation. Rather, the Charter leaves it for the parties to the dispute to choose among a whole array of peaceful means of conflict resolution. The Charter explicitly lists negotiation, enquiry, mediation, concil­iation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. However, in a given case, the parties are rarely free to pick one or the other method of peaceful conflict resolution as Article 33 of the UN Charter suggests. International actors are usually bound by a dense network of treaties which often contain clauses prescribing strict rules and procedures for governing the settlement of disputes arising out of the treaty. Arbitration and adjudication figure prominently in such clauses.

Once a party has consented to submit a dispute to a court or to arbitration, it has to reckon with the possibility that the other party which has accepted the same obligation actually activates the legal procedure in question.

The relevance of adjudication and arbitra­tion is growing with the development of an international system based on international law. The pros and cons of adjudication versus arbitration have been briefly alluded to. Both methods present risks and opportunities. They entail the risk of losing. It lies in the nature of things that a judicial body has to take a decision which is adverse to one or the other party. On the other hand, when referring a case to a judicial body, at the end of the day, the parties will have the benefit of an authoritative judgement that terminates the legal quarrel that divides them. Even for the party which has lost the case before an international tribunal, the advantage of a definitive settlement of the dispute through a court judgement or an arbitral award may be higher than the alternative, that is, an endless continuation of the conflict in question.

All things considered, a strong case can be made in favor of strengthening adjudication and arbitration as legal techniques for the peaceful settlement of international disputes.