REGIONAL DISPUTE

SETTLEMENT
GROUP 3

PREPARED FOR : PROF. MADYA DR.

MOHD AFFANDI BIN SALLEH
 GROUP MEMBERS
NAME MATRIC NO.

ANIS AKILAH BINTI KAMAL 040804

MUHAMMAD AKMAL BIN CHE HAMZAH 040999

MUHAMMAD ‘IRFAN BIN AHMAD AZIZAN 039538

NURUL IZZATI BINTI MUSA 040572

NURUL HANIM BINTI MOHD ZAINUDDIN 040353

SILVIA ROSE RAMANINGAL 040461

ZULAIKHA BINTI JAAFAR 041001

 INTRODUCTION
I. Rise in regional court - adjudicate eco dispute, good governance &
non trade disputes.
II. Regional Court is a game changer in regionalism
III. Regional Courts are not primary engaged with trade.
IV. Trends regarding regional agreements.
V. Studies of arbitration and adjudication to settle basic conceptual
distinctions.
VI. Rising judicialization of dispute settlement& role of regional courts
 CONCEPTS & TRENDS
• International dispute defined as disagreement concerning a
matter of fact, law, or policy in which a claim or assertion of one
party is met with refusal, counterclaim, or denial by another, and
in which these parties involve governments, organizations, legal
persons, or private individuals in more than one country.
• chapter concentrates on dispute settlement institutions that are
regional in scope, governed by a legally binding inter-state
agreement, and legalized.
• negotiation, mediation or conciliation by a third party are
diplomatic and political means.
• arbitration or adjudication are legal means of settlement dispute.
• In this chapter, arbitration and adjudication are concentrated.
• Arbitration requires the parties to set up, or choose, the machinery to
handle disputes.
• Contracts and economic agreements often specify that disputes will
be resolved via arbitration.
• The judicialization of politics refers to a situation where bargaining
takes place in the shadow of potential litigation, with each side
supporting their cause via legal claims.
• For example, Mercosur allows for inter-state adjudication of disputes
by arbitral panels, whose rulings can be appealed to a Permanent
Review Tribunal. Mercosur also channels private litigant complains
to the Common Market Group, an ad hoc body in which diplomats
from all member states meet to hear and address complaints.
 THE REGIONAL COURTS
• Dispute Settlement commonly associated to Regionalism
• Why?
DSM is usually a fruit of regional conferences and
collective efforts (eg: EU, OAU)
Distrust over international judicial system (eg: ICJ)
upon disproportionate influence of Major powers
(Nicaragua v. United States)
• New style of international organization with inclusive of
Dispute Settlement Mechanism provides state opportunity to fill
the gap left by traditional mechanism.
• Major Challenge:
– National Ratification
Solution:
– the inclusion of legal rules that binding or made binding as
part of adoption
• Traditional System (eg: ICJ) only recognize state as actor and its
decision will be binding. However give space for avoid
compliance.
– How?
• Adopt conditional binding rules
• Derogate from the rules or the institutions
• What makes Regional Court better?
 Capable of different activation and influence
– example: Andean Tribunal– Intellectual Property
– East Africa Court– Human Rights
 Delimited framework of Jurisdiction
– example: Human Right– oversee more than the
predefined charter of Human Right
• What to Expect in the Future?
 Involvement in Criminal Adjudication.
 DRIVERS OF LEGALIZED DISPUTE
SETTLEMENT, REGIONAL AND
OTHERWISE
• Theories on why state opt for dispute adjudication mechanism
in regional level
• Theories:
- Rationalist Functionalism
- Liberal-institutionalism
- Realism
- Policy Diffusion
• Rationalist Functionalism
 Useful method to address collaboration problem,
enhance contribution in organisation
 Able catch free-riders, penalized
 Economic agreement + regional dispute settlement
• = Strong legislative mechanism
- Assume most regional mechanism only adjudicate trade
matters
• Liberal-institutionalism
 Democracy as basis, dispute settlement tools can cover
wider grounds to check on executive power and
transparent-decision making
 Democratic prefer this methods, its governments may
willing to participate in court to displays standings to
other democratic states
- No proof in their finding to support this
- Most democratic European and Americas prefer it but
similar cases seen in Africa
• Realism
- Judicialized dispute settlement = nonsense and impractical, fear it level
the balance of power in the region, halt further expansion
 May play along if reflect interests and get rivals to comply with it
 Must be state-controlled direction, can be manipulated by hegemon
• Policy Diffusion
 Multiple regional bodies compared to see how this institution diffused
within and across regions and non-related bodies
- Lack credibility to function well,
 Accepted the fact that when facing similar problem, it will look for
solution in other area
 Chances for global norms to be incorporated in the regime
CHALLENGES TO THEORY-BUILDING
The missing things in adjudicating arguments-data
• There is a growing number of large-scale data that sets
document variation in practice but a very little data on how these
mechanism work in practice.
To understand change over time
• Little knowledge on the proposals that were negotiated and
abandoned on the negotiation of regional initiatives.
The systemic bias of the sources of the data
• Understandings begin with the narratives constructed by
participants in the regional project or by the insiders who have
access to the data creators
• Robert Hudec was absent during negotiations
but his insider access allowed him to construct
the seminal account on GATT’s dispute
settlement later on.
• Even though the insider views offer important
insight, creators and insiders of regional system
have a stake or ownership in the narratives they
construct.
 EFFECTS OF REGIONAL DISPUTE
SETTLEMENT
• The tendency to equalize compliance with effects.
 Compliance- state behavior to conform with prescription of an
agreement.
 Pattern of compliance tells nothing about causal effect -> state
may select agreements to comply with.
 The Courts not only for monitoring compliances – helping
parties reach out of court compromise solutions (clarify,
elaborate and build legal rules).
Intended effect- formally negotiated jurisdiction.
Unintended effect- active regional adjudicatory
mechanism exceeded the founder’s objectives.
 Example- European Court of Justice ->
European Court of Human rights extended the
reach of the Charter -> Andean Tribunal of
Justice – deeply involved in development of
intellectual property and consumer protection.
 CONCLUSION
• Cooperation at regional level will produce better outcomes due to
common values and norms
• Domestic issue now has become part of the global issue as an effect
of trans border crisis
• Eg : environmental issue on haze
• Open burning of Indonesian farmers to prepare their land for
next plantation
• The smoke and haze cross borders entering Malaysia and
Singapore air
• Directly effect other neighboring states
• Indonesia, Malaysia, and Singapore meet every year and send
help to stop these open burning
 On going debate on the new and old realities of
international system
• States used to be parties to international thus any
dispute need to be taken as a bilateral or multilateral
treaty
 New scholars believe that regional dispute settlement is
a fertile ground for rule of law to happen
• Neighboring states has similarities in custom, social
norms, political institution, religion and beliefs.