Dispute Settlement Procedures System

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Dispute Settlement Procedures System

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Dispute Settlement Procedures System

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Question:
Discuss about the Dispute Settlement Procedures System.

Answer:

Introduction:
It must be noted that this era is considered as unique era of internationalization or globalization. With the increasing trend and improvement of technology, transportation, and communication, the nations of the world now resolve their dispute in more peaceful manner. For this purpose, United Nations established International Court of Justice[1].
On the other hand, WTO play key role in resolving trade disputes. Dispute between two member governments are resolved by the WTO, and because of this it is considered as best dispute settlement body in the world[2].
In this paper, comparison is done between the dispute resolution process of ICJ and DSB with the High Court of Australia, and the Australian Centre for International Commercial Arbitration. Subsequently, paper is concluded with brief conclusion.
Dispute resolution in ICJ and DSB:
International Court of Justice is the judicial body to be subordinate of the United Nations, and it must be noted that statute of ICJ is the integral part of the charter of the organization and members of the United Nations are also the members of the special system of the Court. ICJ is also considered as the principle judicial organ of the United Nations. However, this body is open for the all states of the international community. ICJ determines all the aspects of public international law, but still it is the effective jurisdiction which remains constrained.
ICJ is the primary mean for resolving the disputes between the states, and this Court is well recognized for its significant contribution in the international law development. However, Court has not operated in full capacity because of which almost 4 or 5 cases of ICJ are referred to the Court for judicial settlement every year. There are number of reasons of ineffectiveness of ICJ, and the most important reason is the character of Court itself. It is the common notion that limited nature in context of Court jurisdiction is the most important clause of court’s ineffectiveness[3].
ICJ includes almost 15 judges which are elected by general assembly of the United Nations and also by its security council for nine years. For the seats in ICJ elections are done in every three years, and re-nomination of retired judges is also done. Members of the states are independent judges and they do not represent their governments.
Court will deal with the disputes arise between states, and does not consider any disputes which arise between individuals and private bodies. Court shall also consider any issue or dispute by presenting both the parties to the dispute opposite each other. Additionally, it must be noted that jurisdiction of the Court is optional.
Generally, it must be noted that ICJ play two roles first it settles dispute as per the international law arise between two states and second it gives advisory opinions related to legal questions referred by international organs and agencies.
On the other hand, DSB of WTO mainly resolves dispute related to broken promises and members of WTO also preferred multilateral system for the purpose of settling disputes instead of taking unilateral action. In other words, states are bound by the agreed procedures and judgments[4].
The international Court of Justice was introduced for fulfilling the need of international judicial settlement and on other side WTO was introduced for the purpose of promoting trade at international level by reducing tariffs and removing other trade barriers related to trade. Difference is also stated between resolutions of disputes such as ICJ adopted process of arbitration by referring cases and in WTO there is voluntary submission of dispute by both the parties when they break any contract exists between them and need external assistance for solving the issue[5].

Dispute resolution in High Court of Australia and ACICA:
Australia’s leading international dispute resolution body is Australian Centre for International Commercial Arbitration (ACICA) which was established in 1985. This body is established as not for profit organization. The main aim of ACICA is to promote and facilitate efficient resolution of commercial disputes in Australia ad also at international level through arbitration and mediation with the aim of delivering expertise through their process. This body is governed by board including some leading international arbitration practitioners of Australia.
It must be noted that, board and membership of ACICA extends to business, academia, judiciary, industry, and government. However, this body also signs co-operation agreement with almost 30 arbitral bodies. It is also the founding member of Asia Pacific Regional Arbitration Group and also the member of International Federation of Commercial Arbitration Institutions. Services of ACICA include[6]:

ACICA must act as appointing and administering body for all the forms of ADR and it is impartial in nature. It has its own set of rules as well as ad hoc process which includes in UNCITRAL and Arbitration Rules.
ACICA maintains the international panels of arbitrators and meditators, and these panels can be used as a source for party appointments.
ACICA provides clauses related to rules and models for the purpose of facilitating best practice in the arbitration and mediation conduct.
It also assists the parties in arranging the facilities for managing their ADR processes which includes room hire and transcription services.
It acts as deposit holder for tribunal and mediator fees while processing in ADR which also includes those cases which are administered under other rules of administration[7].

Specialties of ACICA:
There are number of appeals which are established by international commercial court in Australia, and as per one recent publication of Honours Chief Justice Warren and Justice Croft of the Supreme Court of Victoria, there is requirement of establishing other options too which are different from arbitration for international commercial disputes.
This can be understood through case which was recently handed down by SICC, BCBC Singapore Pte Ltd v PT Bayan Resources TBK [2016] SGHC(I) 01[8]. In this case, dispute was related to construction of coal processing facility in Indonesia and it also involves parties from three different jurisdictions that were Indonesia, Australia and Singapore. At time when disputes was related to cross border transactions which were complex in nature then such cases were usually resolved through international arbitration. Decision made by SICC in this case result in more parties resolve the case through international commercial Courts[9].
Conclusion:
After considering above facts, it is clear that process of dispute resolution of ICJ and DSB of WTO is completely different with the process of ACICA. ICJ and ACICA mainly concentrate on resolving the dispute with peaceful manner and deals with commercial matters. On the other hand WTO resolves dispute when states break any promises and both parties file dispute with states.

Bibliography
Law Teacher. International Court Of Justice And International Disputes International Law Essay, https://www.lawteacher.net/free-law-essays/international-law/international-court-of-justice-and-international-disputes-international-law-essay.php, Accessed on 2nd October 2017.
WTO. A unique contribution, https://www.wto.org/english/thewto_e/whatis_e/tif_e/disp1_e.htm, Accessed on 2nd October 2017.
David A. Gantz. Dispute Settlement Under the NAFTA and the WTO: Choice of Forum Opportunities and Risks
for the NAFTA Parties, < https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1328&context=auilr>, Accessed on 2nd October 2017.
Clayton UTZ. A Guide To International Arbitration, < https://www.claytonutz.com/ArticleDocuments/178/Clayton-Utz-Guide-to-International-Arbitration-2012.pdf.aspx?Embed=Y>, Accessed o 2nd October 2017.
Turki Al Saud. A comparison between the dispute settlement procedures in the international court of justice and the world trade organization, < https://bura.brunel.ac.uk/bitstream/2438/4477/1/FulltestThesis.pdf>, Accessed on 2nd October 2017.
ACICA, Arbitration, https://acica.org.au/arbitration/, Accessed on 2nd October 2017.
Linked In. ACICA, < https://in.linkedin.com/company/australian-centre-for-international-commercial-arbitration>, Accessed on 2nd October 2017.
Andrew Stephenson. is an international commercial court for Australia a viable option, https://www.corrs.com.au/thinking/insights/is-an-international-commercial-court-for-australia-a-viable-option/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=View-Original, Accessed on 2nd October 2017.

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