Control Mechanisms in International Dispute Resolution

Abstract

My professor on the Law of Personal Status began one of his invariably dry lectures with the words "[m]atrimony is an institution that concludes in death or divorce." It struck me then as a terribly unromantic way of looking at something wonderful. For all I know, the professor may have been as romantic as I was. His point was that lawyers, as designers of social relationships, must look beyond the moment of exhilarating consensus when those relationships are created to that inevitable momentusually quite rancorous-when, in one way or another, they are undergoing stress or are ending. Domestic law provides compulsory institutions for resolving conflicts about commitments and relationships. To a large extent, international law does not. Whether an international transaction comprises a single event or a large number of events linked in complex and continuing legal and economic relationships, the responsible attorney must plan for the resolution of disputes. Inevitably, most of the efforts of negotiators are going to be directed toward shaping the substantive transaction. By the time agreement is reached, negotiators are often exhausted and, as the champagne is uncorked, they may pay relatively little attention to dispute resolution. More often than not, negotiators will simply jam an off-the-shelf dispute resolution clause into the miscellaneous chapter at the end of the agreement. One indication of how automatic this has sometimes been is some arbitration clauses in important post-war contracts still referred to the Permanent Court of International Justice as the back-up appointment authority, despite the fact that the Permanent Court had long since ceased to exist.