Chapter 6 draws together and extends the comparative analysis that has unfolded across the prior chapters. It explains why tribunals’ practices differ across the regimes studied, focusing on contextual differences between the selected tribunals. It also assesses to what extent the practices of the selected tribunals provide insights into wider problems facing international adjudication and legal techniques that are potentially transferable across contexts. Structurally, the chapter discusses consecutively my findings in relation to the three challenges confronting international tribunals analysed throughout the book: managing changes in international law or relevant facts, calibrating the appropriate standard and method of review when scrutinising State conduct for compliance with international law, and contributing to broader processes of dispute resolution. The chapter finishes with some final remarks that close the book, concerning its contribution to our understanding of the role of international adjudication in contemporary international law and its implications for future studies in this field.

This chapter examines China’s asymmetrical engagement with different areas of international adjudication at a time of rising Chinese assertiveness and influence in the shaping of international law. It first explores the relatively minor, yet still remarkable softening of China’s traditional strategic detachment from international adjudicative systems concerning general public international law, international criminal law and international human rights law. These areas exemplify China’s lowest point of engagement with the international adjudicative system. It then focusses on China’s deepening engagement with other international adjudicative systems – in the areas of international trade law and international commercial and investment law – and how the prevention and dispute settlement system of the Belt and Road Initiative is taking shape. It looks at China’s exploratory accommodation of international settlement mechanisms in the law of the sea and newer areas, before examining an array of concomitant cultural, historical, political and contemporary strategic factors weighing both for and against China moving beyond its current ‘comfort zone’ regarding international adjudication.

The author assesses the role of consent in processes of binding dispute resolution before international courts and tribunals. He seeks to demonstrate that ‘consent’ has a particular role in binding dispute resolution. This particular role derives from the special nature of binding dispute resolution processes. They are intrusive and characterized by their uncertain outcome: the implications of State consent to the dispute resolution process crucially depend on decisions of an independent entity, namely an international court or tribunal. Because this is so, States insist on the need for consent, as a precondition of any binding dispute resolution process. At the same time, once consent has been given, control shifts to the competent international court or tribunal. Moreover, by virtue of their decision-making authority, many international courts and tribunals have managed to assert at least a persuasive influence over proper construction of the legal rules at stake, extending beyond the cases immediately pending before them. The chapter traces these peculiarities and examines how the tension between State and courts’ authority plays out in particular disputes.

Can States determine unilaterally what counts as a wrongful behaviour in the absence of public international adjudicative institutions? Can meaningful responsibility for wrongful acts exist in the absence of a public adjudicative entity? What happens in the case of a conflict between a unilateral (private) judgment of a State accused of having committed a wrong and the decision of a (public) international adjudicative institution? The authors advocate for a system based on conflicting judgments concerning responsibility made both by international adjudicative institutions (publicly) and by the States themselves (privately), what they refer to as the ‘discordant parity hypothesis’. The case for the overriding power of international adjudicative institutions is based on the importance of the State’s publicly recognized duties. The case for the overriding power of judgments made by States stems from its promise to facilitate active engagement of States with their obligations. The chapter embraces a system that recognizes the normative force of both (and the inevitable resulting conflicts).

International commercial courts are ‘international’ in that they perform functions that may be characterized as international. First, all ICommCs of the three categories presented in the chapter are domestic courts for international commercial disputes, or international business, more broadly defined. Second, they allow the internationalization of domestic legal orders by helping a jurisdiction attract foreign capital, and become a global and regional dispute resolution hub. ICommCs’ functional internationalism spills over into their organizational and procedural design. While ICommCs may be seen as hybrid institutions – between the national and the international, the public and the private, the formal and the informal – the chapter brings to light the new institutional mechanisms of interoperability between them and other dispute resolution fora – domestic courts, international commercial arbitration and international courts and tribunals. The functional interoperability will eventually determine the durability of ICommCs.

In a world of cross-border transactions, parties could not find until recently recourse to international courts for cases involving exclusively private parties from different jurisdictions. International commercial arbitration instead assumed the role of default jurisdiction for the resolution of disputes of such cross-border transactions. The identified gap in international adjudication has eventually given rise to a new species of courts: international commercial courts (ICommCs). ICommCs are domestic courts as they are established under a domestic legal order, but are different from the ordinary courts of the host jurisdiction in a number of ways. At the same time, they have an international character due to their institutional design as well as the cross-border nature of their caseload. ICommCs are a novel addition to the international dispute settlement system as they represent an effort to globalise dispute resolution using a bottom-up approach. Overall, they are part of a new form of transnational adjudication that blurs traditional dichotomies between domestic and international, and public and private.

This chapter asks whether, and to what extent, modern international arbitration practice is related to pre-twentieth-century dispute settlement methods. It argues that international arbitration can be analyzed within (1) the narrow context of (private) arbitrations practiced in local trade associations and (2) the broader context of (public) international adjudication, which has evolved considerably over time. While it does not claim that these forms of arbitration, which were important mechanisms in the late eighteenth and the nineteenth centuries, are the sole “ancestors” of the modern international arbitration system, it shows how some of their characteristics were developed and became defining features of modern international arbitration practice. This chapter thus attempts to explore the complex genealogy (or genealogies) of international arbitration by exploring two influential lines that can be identified at a time when “arbitration” had various meanings and the field was less structured than it is today.

This chapter explores the political, social, and economic conditions that have shaped the turn to history since the 1990s. Those conditions include the break-up of the Soviet Union and the ‘end of history’ narrative that accompanied a decade of ambitious liberal expansionism, the crisis of liberal internationalism triggered by the war on terror and the financial, energy, food, asylum, and climate crises of the early twenty-first century, and the shift in geopolitics caused by the rise of the BRICS and particularly of China as an economic power. International lawyers in practice and the academy have drawn on past events, practices, records, and cases as argumentative resources in adjudicatory settings and in broader debates over how to understand, justify, or resist the transformation of international law. The turn to history eventually began to be understood as a project that should be distanced from the argumentative practice of international law and measured against the empiricist protocols of academic historians. This chapter returns it to the context of international legal argumentation from which it arose, in order to gain a better understanding of the turn to history as an intervention in present struggles over the meaning of international law.

This concluding chapter argues that the interplay between international law and empiricist history has served to offer a new grounding for formalism in an extremely fraught political context. Historical work is increasingly relied upon as a source of substantive claims about what law really means and of scientific methods for studying the past. Lawyers rely on the scientific tone and resulting truth effects of accounts presented by professional historians to intervene in contemporary debates by using the claims made in those narratives about international law’s ‘true’ origins or ‘real’ history. Appeals to contextualist histories allow lawyers to present their arguments as being grounded on evidence and to characterise the other side in a legal debate as ideologically motivated, presentist, or engaged in myth-making rather than proper scholarship. The chapter argues that international lawyers cannot look to historians (or anyone else for that matter) to save the day with impartial and verifiable evidence-based interpretations of what international law really is, means, or stands for. What then is to be done? The chapter concludes by exploring why and how we might study the international legal past even knowing that writing histories of international law is inevitably a partisan act.

This chapter examines how international courts have applied principles of state responsibility in the context of situations of shared responsibility between multiple parties, concluding that when this occurs international adjudication becomes less suited as a process for implementing such responsibility. Substantive law of international responsibility is slowly adjusting to its increasingly relational nature, but the procedures of international adjudication in many respects are not well suited for incorporating this relational nature. There are considerable differences between states, in terms of their willingness to submit themselves to adjudication of shared responsibility claims, even within “the west,” as a result of which responsibility will often will be shared between some states, but not all. The role of international adjudication in relation to shared responsibility differs widely – both between international courts and between states – in terms of the willingness of states to subject themselves, or make use of, international adjudication. An interesting example is the adjudication of claims related to extraordinary rendition. Whereas European states, like Macedonia and Poland, were found responsible by the European Court of Human Rights in relation to their (shared) responsibility, the USA has always resisted attempts to be subjected to adjudication for their leading role in extraordinary rendition.

This book studies arbitration from a constitutional perspective. Its scope is broad, for it explores the most important modalities of arbitration. Part One focuses on arbitration in private law. Any constitutional inquiry into arbitration must begin at the national level. We need to discuss whether Constitutions should protect the right to arbitration, and what kinds of justifications the state may advance in defence of the restrictions it places on the arbitral process. Part Two centers on investor-state arbitration, which has generated much controversy in recent years. Critics contend that this form of arbitration privileges foreign investors in unacceptable ways. Local investors are discriminated against and the ability of governments to regulate matters in the public interest is unduly curtailed, critics argue. Part Three looks at state-to-state arbitration, which has historically played a key part in the evolution of international law. The establishment of international courts in the twentieth century did not help transcend the arbitral foundations of adjudication, however. The jurisdiction of international courts always stems from the consent of the parties. This limitation should raise concerns from a constitutional point of view.

This Chapter introduces the focus of the work. It explains that international adjudication has come under increasing criticism and backlash in recent years, and links this to long-lasting debates about the proper reach of international law and adjudication. The Chapter explains that adjudicative deference to States has been frequently identified as a possible option to respond to these concerns. The Chapter thereafter connects deference to debates about State sovereignty and autonomous decision-making authority. It introduces the structure of the book and identifies the key audiences and benefits to which it is directed, as well as how it differs from existing scholarship on deference in international adjudication.

This chapter draws together the preceding conceptual and empirical analysis of deference in international adjudication to explore how the principles discussed in the preceding pages might be used to inform approaches to deference in practice. This chapter does not develop a prescriptive approach to deference in international adjudication. It instead offers a framework to inform the analysis of deference in international adjudication. Section 10.1 addresses debates as to whether international adjudicative deference to domestic decision makers is desirable at all. Section 10.2 examines whether approaches to deference should be ‘fixed’ in favour of some doctrinal approaches over others. Section 10.3 explores how a framework for analysing deference might be created, which allows evolution and malleability in approaches to deference while securing some level of predictability and transparency in practice. Section 10.4 concludes.

This Chapter develops an explanatory framework which organises approaches to deference in international adjudication according to how each approach structures the relationship between international and domestic decision-making authority. Section A introduces the range of domestic decisions referred to by adjudicators. It examines how adjudicators confront domestic judicial decisions, domestic decisions on domestic law, and domestic policy decisions in international private property claims. Section B organises the results of this analysis, identifying seven different ‘modes’ of deference. These range from the treatment of domestic decisions as controlling on international adjudicators (‘conclusive domestic authority’), to rejections of deference to domestic decisions entirely (‘conclusive international authority’). Between these two extremes, deference to domestic decisions also at times resulted in a suspension of the exercise of international decision-making authority (‘suspensive domestic authority’), or in a more concurrent operation of domestic and international authority (‘concurrent authority’). These distinct approaches are explored in more detail in Chapters 5 to 7.

This Chapter concludes the book. It notes that the book has identified the structures of deference in international adjudication and the implications of deference for adjudication under public international law. It has developed a conceptual framework for understanding deference, to demonstrate that different modes of deference disclose differing approaches to dividing authority between domestic and international decision makers. The study has also linked deference to several fundamental debates about the relationship between public international law and domestic law, and between private property rights and State interests. Pursuing these lines of analysis, the book used deference to tell a story of international law, with international private property claims providing a useful setting for this story. By analysing approaches to deference in the private property cases of adjudicators in four such regimes, the study revealed the relationship between deference, State sovereignty, and power in international adjudication. It further identified how international adjudicators use deference to manage continuity and change, and to settle conflicting claims to authority.

This Chapter investigates the systemic role and implications of deference in international adjudication. It argues that existing analyses of international adjudicative deference have been based upon, without explicitly acknowledging, an assumed relationship between the domestic and international legal orders. The Chapter proposes inverting the enquiry. Instead of starting from an assumption as to how deference should be structured, it argues that approaches to deference can instead be analysed and conceptually distinguished by reference to how they structure the relationships between the international and domestic legal orders. The Chapter demonstrates that the three conceptualisations of authority underlying the seven modes of deference introduced intoreflect distinct approaches to structuring the relationship between the international and domestic legal orders. Conclusive approaches disclose a monist view of that relationship, whilst suspensive approaches reflect dualist structures, and concurrent approaches reveal pluralist paradigms. This analysis brings into focus the structural and systemic functions of deference in international adjudication.

This Chapter uses descriptive statistics to investigate how approaches to deference in international private property claims differ according to regime, and whether they have changed over time or according to context. The aim is to identify – based on the inductive, qualitative, review – whether some approaches to deference have been more prevalent than others in different times or contexts. The Chapter investigates regime-specific trends in approaches to deference. It highlights differences in the frequency with which the modes of deference, and approaches to authority, were applied by adjudicators in each regime. It further examines the different approaches to deference exhibited by adjudicators at the ECtHR Grand Chamber and Committee/Chamber levels, and in ICSID and non-ICSID arbitral decisions. The Chapter further emphasises the dynamic qualities of deference to investigate whether approaches to deference have changed over time. It identifies a rise in applications of modes of deference reflecting a concurrent view of authority and a dynamism in the approaches of adjudicators to selecting grounds for deference within the mode of deference as respect.