Arbitration as a Dispute Resolution Mechanism for Interstate Conflicts

The International Court of Justice is currently considering the first ever case in which Russia is a party. The dispute was initiated by Georgia which alleged violations of the International Convention on the Elimination of All Forms of Racial Discrimination. Georgia argues that, since 1990 Russia directly and through its controlled entities of Abkhazia and South Ossetia, discriminates the Georgian population in these republics. It appears that resolution of this dispute by means of arbitration rather than at the International Court of Justice would be more efficient.

It was the Russian government which initiated the first and the second Hague Peace Conferences in 1899 and 1907. As a result of these conferences, the Permanent Court of Arbitration was established which the states may arbitrate disputes if they consent to it. It should be noted that the former Soviet Union did not become a party to the Convention. As a result, many former Soviet republics do not participate in the activities of the Permanent Court of Arbitration. According to some estimates, in the period between 1794 and 1989 sovereign states were involved in about 450 interstate arbitrations.

Today the default procedure for resolving interstate disputes is through the International Court of Justice. Legal disputes should as a general rule be referred by the parties to the International Court of Justice (Article 36 of the UN Charter). That’s why we now see that arbitration is almost never used in the UN system. Now the resolution of disputes through arbitration between states is unpopular. However, it appears that if the dispute cannot be resolved through negotiation, arbitration offers a superior dispute resolution procedure compared to resolving the dispute in the ICJ for a number of reasons.

First, parties to the dispute may appoint by mutual agreement any arbitrator whom they consider most appropriate for consideration of the dispute, whereas in International court judges are appointed rather than elected by the parties. Second, the court is guided by rules and statutes adopted by the institution that it has established, in arbitration the parties themselves determine the rules and language of the dispute.

Third, meeting of the arbitral tribunal usually confidential unless the parties otherwise agreed, which helps to maintain confidentiality and make it easy to discuss sensitive issues. The parties may appoint those who are particularly suitable to resolve a particular dispute. The ICJ proceedings are usually public and do not offer such advantage. Rather than addressing strictly legal issues, arbitration offers better environment to reach political settlements and address the most complex conflicts between states such as the Georgia-Russia conflict.

Anna Shevchenko

PhD candidate, Ukrainian State University of Finance and Foreign Trade

About the Author:

Prof Yarik Kryvoi, MCIArb is the founder and co-editor of the CIS Arbitration Forum. He is the Senior Research Fellow in International Economic Law and Director of the Investment Treaty Forum at the British Institute of International and Comparative Law (BIICL). He holds law degrees from Harvard, Moscow and St Petersburg. He has been teaching and practicing international arbitration in Russia, the United States and England for over ten years and is listed as arbitrator by several arbitration institutions. Prof Kryvoi also served as a Co-Chair of the International Courts Committee of the American Bar Association's Section of International Law. He also serves a tutor at the Chartered Institute of Arbitrators in London. See full profile at kryvoi.net.

Post a Comment