The Politis/Lauterpacht project foundered both on academic rejection and (above all) the jealousy of states with regard to their sovereignty. The pragmatic alternative was first described by Kiss in a remarkable doctoral thesis in 1953, prefaced by five incisive words by Bastid, his supervisor: ‘it [abuse of right] should not be taken literally’. In this more modest conception, the prevention of abuse of right (which no one will dispute as an abstract proposition) is recognized as a general policy goal, requiring the hard work of negotiating contextually meaningful criteria as lex specialis. This reasonable retrenchment is informed by the understanding that avoiding abuse of rights on the international plane requires the accommodation of concurrent rights which may naturally generate competing claims. This process does not call for the assignment of moral blame, and cannot succeed as intuitive projections of the phrase ‘abuse of right’.

The author looks at the ‘inherent powers’ of the WTO Appellate Body (AB) and ICSID tribunals. She argues that the key to the exercise of the international judicial function is the principle of inherent powers, which are conferred upon judicial bodies to safeguard the judicial function. Yet, for the WTO Appellate Body and ICSID tribunals , it is often assumed that while ICSID tribunals have broad inherent powers, the AB’s inherent powers are restricted. She asks the question whether this means that these tribunals are fragmented in the exercise of their judicial function, and consequently their inherent powers, and if so, what factors contribute to such fragmentation. This chapter answers the above questions by examining the way the AB and ICSID tribunals perceive their authority to exercise inherent powers through the examples of objections to admissibility of a case and amicus curiae submissions. Using these examples, this chapter challenges absolutist assumptions about the inherent powers of the AB and ICSID tribunals. Instead, it develops a nuanced understanding of the scope of the inherent powers of these tribunals through a study of their respective judicial functions.