International and Comparative Law
Quarterly
http://journals.cambridge.org/ILQ
Additional services for International and
Comparative Law Quarterly:
Email alerts: Click here
Subscriptions: Click here
Commercial reprints: Click here
Terms of use : Click here
INTERNATIONAL RESPONSIBILITY FOR
DOMESTIC ADJUDICATION: DENIAL OF JUSTICE
DECONSTRUCTED
Zachary Douglas
International and Comparative Law Quarterly / FirstView Article / September 2014, pp 1 - 34
DOI: 10.1017/S0020589314000402, Published online: 03 September 2014
Link to this article: http://journals.cambridge.org/abstract_S0020589314000402
How to cite this article:
Zachary Douglas INTERNATIONAL RESPONSIBILITY FOR DOMESTIC
ADJUDICATION: DENIAL OF JUSTICE DECONSTRUCTED. International and
Comparative Law Quarterly, Available on CJO 2014 doi:10.1017/
S0020589314000402
Request Permissions : Click here
Downloaded from http://journals.cambridge.org/ILQ, IP address: 178.193.239.186 on 04 Sep 2014
INTERNATIONAL RESPONSIBILITY FOR DOMESTIC
ADJUDICATION: DENIAL OF JUSTICE DECONSTRUCTED
ZACHARY DOUGLAS*
Abstract This article revisits the core difficulties with the international delict
known as a denial of justice and, drawing insights from philosophical writing
on adjudication, offers novel solutions to three principal issues: (a) the
scope of the acts and omissions that can form the predicate conduct for a
denial of justice; (b) the proper threshold for liability in respect of those
acts or omissions; (c) the relationship between denial of justice and other
international norms impacting upon domestic adjudication. The article
concludes with a restatement of the law of denial of justice.
Keywords: denial of justice, exhaustion of local remedies, international law, procedural
rights, theory of adjudication.
I. INTRODUCTION: A DELICT IN SEARCH OF A JUSTIFICATION
The secondary rules of State responsibility do not differentiate among the three
principal branches of constitutional power in the sense that an act of any State
organ is attributable to the State on the international plane and thus can supply
the predicate conduct for a breach of an international obligation.1 No exception
is made for the judiciary or the system for the ‘administration of justice’ more
generally. And yet among the primary rules of international law there is a
special form of delictual responsibility known as denial of justice. Why is that
the case?
The leading writers on denial of justice are surprisingly reticent in identifying
the raison d’être for a concept which they have devoted so much energy
* Professor of International Law, Graduate Institute, Geneva, and Barrister, Matrix Chambers,
London. Email: zachary.douglas@graduateinstitute.ch. This article is dedicated to Jan Paulsson.
The author would like to thank Maria de la Colina (PhD candidate) for research assistance. The
views expressed in this article do not necessarily reflect the views of any party represented by the
author.
1
Art 4(1), Responsibility of States for Internationally Wrongful Acts (2001) in Yearbook of
the International Law Commission, 2001, vol II (Pt Two); C de Visscher, ‘Le déni de justice en
droit international’ (1935) 52 Recueil des Cours 376–7; AV Freeman, The International
Responsibility of States for Denial of Justice (Periodicals Service Co 1938) 28; EJ de Aréchaga,
‘International Law in the Past Third of a Century’ (1978) 159 Recueil des Cours 1, 278; Difference
Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human
Rights, ICJ Advisory Opinion of 29 April 1999, (1999) ICJ Rep 62, para 63; Gerhard Köbler v
Republik Österreich, ECJ Case No C-224/01, Judgment of 30 September 2003, para 41ff.
[ICLQ, Page 1 of 34] doi:10.1017/S0020589314000402
in expounding. A review of the principal treatises on the subject2 permits the
conclusion that ‘denial of justice’ is a useful label for the collection of various
paradigmatic examples of international responsibility for acts and omissions
relating loosely to the ‘administration of justice’3 as revealed through a close
study of the historical jurisprudence. If this is as good as it gets in terms of a
justification for the delict of denial of justice, then we would have to surmise
that its days are numbered. It would be vulnerable to the next spring-cleaning
of legal concepts relating to international responsibility towards foreign
nationals4 because it is not self-evident why a singular notion of delictual
responsibility in international law for the mistreatment of foreign nationals by
any State organ could not subsume denial of justice. The international minimum
standard in general international law might do the job within the realm of
diplomatic protection,5 as might the rights to a fair trial or due process embedded
in human rights treaties6 or the fair and equitable standard of treatment
commonly found in investment treaties7 in the context of those more specialized
regimes. Indeed, it is within those specialized regimes that the fate of
denial of justice looks particularly uncertain. Litigants are motivated by pragmatism
rather than fidelity to historical usage. Why plead a denial of justice,
with its substantive requirement that the victim must have had recourse to local
procedures to redress the putative injustice for the State’s responsibility to be
consummated, when a range of other international obligations might be interpreted
as also extending to the same acts or omissions relating to the
administration of justice in the particular State? This pragmatic consideration is
particularly forceful in the investment treaty regime because there is generally
no procedural requirement to exhaust local remedies.8
What is strikingly absent from the leading texts on denial of justice is an
argument of principle for the existence of a separate international delict for
misfeasance or nonfeasance in respect of the ‘administration of justice’. And
yet it is clear that unless the retention of ‘denial of justice’ is to be motivated for
reasons of form, such as a tool of classification or as fidelity to historical usage,
2
EM Borchard, The Diplomatic Protection of Citizens Abroad ([1919] WS Hein & Co
Reprint 2003); CT Eustathiades, La responsabilité internationale de l’État pour les actes des
organes judiciaires (Pedone 1936); Freeman (n 1); de Visscher (n 1); J Paulsson, Denial of Justice
in International Law (CUP 2005).
3
Freeman (n 1) 1; de Visscher (n 1) 390; Paulsson (n 2) 4; F Francioni, ‘Access to Justice,
Denial of Justice and International Investment Law’ in P-M Dupuy, F Francioni and
E-U Petersmann (eds), Human Rights in International Investment Law and Arbitration (OUP
2009).
4
The term ‘foreign nationals’ is intended to cover legal entities such as companies as well as
individuals. 5
CF Amerasinghe, Diplomatic Protection (OUP 2008) 37.
6
Commentary on art 6 of the ECHR in MW Janis, RS Kay and AW Bradley (eds), European
Human Rights Law (3rd edn, OUP 2008); R Clayton and H Tomlinson, The Law of Human Rights
(2nd edn, OUP 2009) 823–98.
7
M Paparinskis, The International Minimum Standard and Fair and Equitable Treatment
(OUP 2013).
8
Z Douglas, The International Law of Investment Claims (CUP 2009) paras 56–60.
2 International and Comparative Law Quarterly
then the continued vitality of the concept can only be assured by a justification
of principle.
The logical starting point is whether there are unique normative consequences
attaching to a denial of justice that do not pertain to other international
wrongs relating to the treatment of foreign nationals, such as the international
minimum standard in general international law.9 The answer appears to be
straightforward: what distinguishes a denial of justice is that the State’s
responsibility is said to arise only at the point when the whole system for the
administration of justice has spoken.10 A prejudicial decision from a court of
first instance does not suffice: the foreign national must have sought redress
against that decision by having recourse to the remedies provided by the State’s
system for the administration of justice.
If we were analysing species of the animal kingdom then we could stop
there. We are now equipped to identify what is distinctive about denial of
justice as an international delict and distinguish it from other grounds for
delictual responsibility for wrongs to foreign nationals. But that is not enough
for legal concepts: we are obliged to provide an argument of principle to justify
why this rule on recourse to local remedies must be applied to certain acts or
omissions of the State and not to others.
The thesis advanced here is that there is something special about the form of
decision-making known as adjudication that justifies both the imposition of
this additional burden for establishing liability in the form of the rule on
recourse to local remedies as well as the existence of a separate delict relating
to acts or omissions relating to an adjudicative process more generally. This
thesis borrows heavily from Fuller’s insights relating to the essential characteristics
of adjudication, which he described as a ‘device which gives formal
and institutional expression to the influence of reasoned argument in human
affairs’.11 International law has in the past and should continue in the future to
treat this most exacting and also most vulnerable form of decision-making in a
special way through the delict of denial of justice.
Contrary to the received wisdom, it is not the identity of the State organ or
the title of the office that counts; hence the debate as to whether denial of
justice is confined to acts of the judicial organs or includes administrative
9
It should be remembered that it was once fashionable to characterize any international delict
towards a foreign national as a denial of justice: Borchard (n 2) 336; Freeman (n 1) 97–8; Neer
(USA) v United Mexican States, Mexico/USA General Claims Commission, Nielsen’s Separate
Opinion (1926) IV UNRIAA 62, 64; Robert E. Brown (USA) v Great Britain (1923) VI UNRIAA
120; Claim of the Salvador Commercial Company (‘El Triunfo Company’) (1902) XV UNRIAA
467–479.
10
Ambatielos Claim (Greece v United Kingdom) (1956) XII UNRIAA 83, 120; International
Law Commission (Crawford) ‘Second Report on State Responsibility’ UN Doc A/Cn.4/498 (1999)
para 75 (‘An Aberrant decision by an official lower in hierarchy, which is capable of being
reconsidered, does not itself amount to an unlawful act.’).
11
LL Fuller and KI Winston, ‘The Forms and Limits of Adjudication’ (1978) 92 HarvLRev
353, 367.
International Responsibility for Domestic Adjudication 3
organs and so on,12 which has never been resolved in the literature, can be left
to one side. Instead what counts is whether the organ or official has committed
itself to a process of adjudication. As a matter of form, that organ or official is
likely in most nations to be part of the judiciary, but this is not dispositive.
In terms of the scope of acts or omissions attributable to the State that can
provide the predicate conduct for a denial of justice, this is likely to be judged
as a narrow conception as compared with the existing definitions offered by
other writers. Cases of executive interference in a pending domestic trial, for
instance, would not be treated as a denial of justice pursuant to the conception
defended here. The president does not commit to a process of adjudication
when the president decrees the removal of the judge assigned to a pending
trial.13 As a result, in accordance with the thesis advanced in this study,
international law should not accord any particular deference to the president’s
decision by making the State’s liability contingent upon the subsequent failure
of the system for the administration of justice to repair that interference. In the
context of a claim for diplomatic protection, the president’s interference would
be actionable as a breach of the international minimum standard but not as a
denial of justice.
If this thesis on the special nature of adjudication can be defended then the
question of the scope of acts or omissions attributable to the State that can
provide the predicate conduct for a denial of justice will be resolved. But that
does not address the other fundamental problem that has preoccupied both
judges and writers since time immemorial: what is the threshold for a denial of
justice? Here the traditional preoccupation has been to ensure that the international
tribunal does not act as a court of appeal on questions of national law.
This concern has generated a keen interest in differentiating between the
substantive and procedural aspects of the domestic adjudication and has led to
a dogma that international law is not concerned with the substantive aspects of
the judgment or decision in adjudication. This purely ‘procedural’ approach,
however, is unsustainable as a matter of principle. The purpose of a system for
the administration of justice is to decide cases and generate good outcomes.
The merits of an outcome are inexorably linked to the substantive law governing
the rights and obligations in question. A theory of procedural fairness must
be linked to substantive rights and outcomes to have any explanatory force in
terms of identifying the fundamental elements of procedural fairness.
Can a delay of five years in progressing a domestic adjudication, for
instance, amount to a denial of justice? The answer must be that it depends on
the substantive rights in play. Delay in proceedings to establish the criminal
responsibility of a defendant who has been remanded in custody since the
indictment is not the same as delay in proceedings to establish a defendant’s
civil responsibility to pay damages for a breach of contract. International law
12
Freeman (n 1) 106; GG Fitzmaurice, ‘The Meaning of the Term “Denial of Justice”’ (1932)
13 BYBIL 93, 94. 13
Robert E Brown (n 9).
4 International and Comparative Law Quarterly
has traditionally imposed more exacting procedural standards upon a State in
relation to proceedings in which an individual’s right to liberty is at stake and
for sound reasons.14 Such an approach is only possible if the requirements of
procedural fairness are tied to substantive rights and outcomes.
The final question that must then be tackled is the relationship between the
concept of denial of justice and other international norms that might potentially
be implicated in a domestic adjudication. There is a line of international cases
that supports the proposition that domestic adjudicative decisions can supply
the predicate conduct for other forms of delictual responsibility to foreign
nationals.15 The corollary of this approach, although it is hardly free from
doubt, is that the rule relating to recourse to local remedies is not then applicable
to this separate delict.16 Such a view has significant repercussions given
the rapid expansion of international norms that place substantive demands
upon the domestic adjudication of cases. If there is something special about a
commitment to adjudication as a form of decision-making then the justification
for imposing the additional burden for establishing a denial of justice applies to
other types of delictual responsibility regardless of whether another international
norm is implicated in that adjudication. This question has become
critical in investment treaty arbitration as claimants have sought to opt out of
the requirement to have recourse to local remedies in a substantive sense by
characterizing their claims as anything but a denial of justice. The tribunal in
Loewen v USA rejected this possibility,17 whereas the tribunal in Saipem v
Bangladesh admitted it.18 Neither elaborated reasons for its decision on this
point.
In summary, this study will address three principal questions: (a) the
scope of the acts and omissions that can form the predicate conduct for a denial
of justice; (b) the proper threshold for liability in respect of those acts or
omissions; (c) the relationship between denial of justice and other international
norms impacting upon domestic adjudication. This study concludes with a
restatement of denial of justice taking into account the conclusions reached in
respect of each of these questions.
14
BE Chattin (USA) v United Mexican States (1927) IV UNRIAA 282.
15
Saipem SPA v Bangladesh, Award of 30 June 2009, ICSID Case No ARB/05/7,
paras 128–131; White Industries Australia Ltd v India, Final Award of 30 November 2011, paras
10.4, 11.3-4; Chevron Corporation (USA) and Texaco Petroleum Company (USA) v The Republic
of Ecuador, Partial Award on the Merits, 30 March 2010, UNCITRAL, PCA Case No 34877, paras
242–244, 251, 275.
16
Saipem, ibid, paras 181–182; White Industries, ibid, para 181; or the application of a lax
finality requirement in Chevron, ibid, paras 326–331.
17
Loewen Group Incorporated and Loewen (Raymond L) v United States, Award of 26 June
2003, ICSID Case No ARB(AF)/98/3, para 14. (‘The Claimants’ reliance on Article 1110
[Expropriation] adds nothing to the claim on Article 1105 [Fair and Equitable Treatment]. In the
circumstances of this case, a claim alleging an appropriation in violation of Article 1110 can
succeed only if Loewen establishes a denial of justice under Article 1105.’)
18
Saipem (n 15) para 181. (‘[The tribunal] tends to consider that exhaustion of local remedies
does not constitute a substantive requirement of a finding of expropriation by a court.’)
International Responsibility for Domestic Adjudication 5
Before attempting to answer these three questions, however, it is necessary
to set the scene by recalling two developments in modern international law that
have already been alluded to in this introduction: the demise of the procedural
requirement to exhaust local remedies within some specialized international
regimes and the expansion of the corpus of international norms that regulate
transnational legal relationships. The combined effect of these developments
has made the quest for answers to these three questions more important
than ever.
II. TWO MODERN DEVELOPMENTS
A. The Limited Demise of the Procedural Rule Requiring the Exhaustion
of Local Remedies
There are two manifestations of the principle that an individual must have
recourse to the remedies afforded by the domestic legal system. The first
manifestation is a requirement for the jurisdiction of the court or tribunal or the
admissibility of the claim at the international level. In this context it is a general
requirement for the admissibility of a State’s diplomatic interposition on behalf
of its national in customary international law19 but it is also a common stipulation
in modern human rights treaties that allow the right of individual petition.20
Less frequently it is a condition precedent for the conferral of
jurisdiction to tribunals constituted on the basis of investment treaties.21 The
second manifestation is a substantive element for the responsibility of a State
for a certain type of delictual conduct which has traditionally been described as
denial of justice.22 A State is only responsible for the final result produced by
its system for the ‘administration of justice’.
These manifestations of the principle are so different in fundamental respects
that to refer to them as a single concept is misleading and indeed it has been
a source of confusion throughout the long history of engagement with the
concept of denial of justice. In this article the term ‘local remedies rule’ will be
19
In diplomatic protection it is a rule of admissibility: Interhandel Case, Judgment of
21 March 1959 (1959) ICJ Rep 6, 28–29; Elettronica Sicula SPA (ELSI), Judgment (1989) ICJ Rep
15, para 52; JES Fawcett, ‘The Exhaustion of Local Remedies: Substance or Procedure?’ (1954) 31
BYBIL 457; de Visscher (n 1) 427; International Law Commission, Articles on Diplomatic
Protection (2006), art 14(1). 20
European Convention on Human Rights, art 35(1).
21
Kılıç I˙ns¸aat I˙thalat I˙hracat Sanayi Ve Ticaret Anonim S¸irketi v Turkmenistan, Award of
2 July 2013, ICSID Case No ARB/10/1, paras 6.2.1-8.
22
Loewen (n 17) paras 151–154; Jan De Nul NV and Dredging International NV v Egypt,
Award of 6 November 2008, ICSID Case No ARB/04/13, para 255; Amto LLC v Ukraine, Final
Award of 26 March 2008, SCC Case No 080/2005, para 76. Paulsson (n 2) 8 with further
references (‘Exhaustion of local remedies in the context of denial of justice is . . . not a matter of
procedure or admissibility, but an inherent material element of the delict.’); AAC Trindade, ‘Denial
of Justice and Its Relationship with the Exhaustion of Local Remedies in International Law’ (1978)
53 Philippine Law Journal 404; International Law Commission (Dugard), Second Report on
Diplomatic Protection, UN Doc A/CN.4/514 (2001) 6.
6 International and Comparative Law Quarterly
reserved for reference to the rule on jurisdiction or admissibility of claims at the
international level, whereas the term ‘finality rule’ will denote the substantive
requirement for international responsibility for a denial of justice.
Until quite recently, the impulse of international courts and writers to
conflate the ‘local remedies rule’ and the ‘finality rule’ was irresistible for the
simple reason that the distinction made little difference in practice. At least
prior to World War II, the local remedies rule was virtually ubiquitous as a
requirement for the admissibility of claims before international courts and
tribunals.23 Hence regardless of whether the impugned conduct of the respondent
State related to its system for the administration of justice, it was
incumbent upon the injured foreign national to exhaust the local remedies
available before that national’s State could take up the claim by way of
diplomatic protection. If the impugned conduct did relate to the administration
of justice, then this necessity to discharge the local remedies rule simultaneously
satisfied the finality rule. In other words, the local remedies rule did
the work of the finality rule. So whilst a distinction was sometimes made in
theory,24 there does not appear to be a reported instance until Loewen v United
States in 2004 where the finality rule was held to defeat a claim for denial of
justice in circumstances where the local remedies rule was not applicable. In
that case the Tribunal expressly recognized that the rules ‘serve two different
purposes’.25
In summary, the demise of the local remedies rule as a requirement
for jurisdiction or the admissibility of claims in special regimes such as the
Iran/US Claims Tribunal26 and investment treaty arbitration27 has cast a
spotlight upon the role of the finality rule for denial of justice because in those
domains where the local remedies rule no longer applies, it cannot do the work
of the finality rule. This is particularly significant for investment treaty
arbitration. By contrast, the importance of the next development that will be
analysed—the collapse of dualism in the relationship between international
and domestic law—transcends all instances for the international adjudication
of claims.
B. The Collapse of Dualism
Modern international law is characterized by a heightened regulation of
transnational activity among foreign nationals in areas that have always been
justiciable before national courts such as extradition, custody of children, sale
of goods, arbitration, corrupt practices, maritime safety and so on.
23
AAC Trindade, The Application of the Rule of Exhaustion of Local Remedies in
International Law: Its Rationale in the International Protection of Individual Rights (CUP 1983).
24
Freeman (n 1) 407, 441, 445–6. 25
Loewen (n 17) para 159.
26
GH Aldrich, The Jurisprudence of the Iran-United States Claims Tribunal (Clarendon Press
1996) 130. 27
Douglas (n 9) para 59.
International Responsibility for Domestic Adjudication 7
This means that domestic courts are adjudicating upon issues to which both
domestic norms and international norms apply with ever increasing frequency.
The extent to which domestic courts can give effect to those international
norms through the medium of domestic litigation depends upon the constitutional
law of the particular State.28 But however the national constitution
resolves this question, it remains the case that modern international law places
demands upon vast areas of domestic regulation.
The old certainties about international law regulating sovereign relations
between States and no one else have long vanished and with that the ability
to differentiate sharply between the norms applicable in domestic proceedings
and in international proceedings. This presents an obvious challenge to conceptualizing
denial of justice: should a domestic court’s failure to adhere to an
international norm be characterized as a denial of justice or something else?
Should the finality rule apply to those other types of violations?
There is a whole spectrum of views on this question of characterization.
Some writers, such as Borchard, extended the concept of denial of justice to the
violation of any international obligation towards an individual.29 Conversely,
Fitzmaurice thought that the concept would be deprived of utility unless
confined to the administration of justice in which case it would have ‘a definite
value as describing a particular species of international wrong’.30 Paulsson
agreed: ‘[w]hen national courts misapply international law, they commit substantive
violations which should not be called denial of justice’31 and then
noted that, given the more extensive corpus of conventional norms directed to
the treatment of foreign nationals today, ‘denial of justice may lose currency as
petitioners find it more convenient to invoke a breach of specific provisions of
the relevant treaty’.32
For these writers the debate can be reduced to a battle for correct terminological
usage because they do not divine any normative consequences attaching
to any particular characterization. This is an important oversight because
there are principles at stake. There is first the question of when it is appropriate
to condition responsibility for the breach of an international obligation upon
the finality rule. The second question is whether there is something special
about adjudication that requires international law to approach the question of
responsibility differently to the activities of the other branches of State power.
These problems must now be confronted.
28
DS Shelton (ed), International Law and Domestic Legal Systems (OUP 2011).
29
Borchard (n 2) 337–8; C Eagleton, ‘Denial of Justice in International Law’ (1928) 22 AJIL
538, 539; CC Hyde, International Law Chiefly As Interpreted and Applied by the United States
(Little, Brown & Co 1922) 491–2; AO Adede, ‘A Fresh Look at the Meaning of the Denial of
Justice under International Law’ (1976) 73 Canadian YBIL 82; OJ Lissitzyn, ‘The Meaning of the
Term Denial of Justice in International Law’ (1936) 30 AJIL 632, 637.
30
Fitzmaurice (n 12) 95. 31
Paulsson (n 2) 5, 69ff, 84ff. 32
Ibid 6.
8 International and Comparative Law Quarterly
III. THE QUESTION OF SCOPE: ACTS AND OMISSIONS RELATING TO DOMESTIC
ADJUDICATION
A. In Search of a Justification of Principle
From the time a consensus formed on discarding the idea that a denial of justice
denotes any violation of international law towards a foreign national, the
debate shifted to the proper basis for limiting the scope of acts attributable to
the State that might supply the predicate conduct for a denial of justice. This
debate has never achieved a satisfactory resolution. The orthodox position is
that only the final product of the domestic system for the administration of
justice can be the object of a denial of justice. And yet it is generally accepted
that the ‘system for the administration of justice’ is not synonymous
with the judiciary as one of the three branches of constitutional authority
under the doctrine of the separation of powers. Denial of justice, according to
the prevailing view, extends to all acts associated with the ‘administration
of justice’, whatever the source of the constitutional authority.33 But the
‘administration of justice’ is not a term of art in comparative constitutional
law, and international law contains no set of rules to determine what counts as
the ‘administration of justice’ within a domestic legal system and what
does not.34
So how can we ascribe meaning to the term ‘administration of justice’? If
it does not simply denote whatever happens in a court room then it follows
that it must be neutral as to source of constitutional authority exercised by
the State organ or official in question. Who then can ‘administer justice’?
To administer justice is to commit to a certain set of ideals elaborated in
political philosophy. To do justice is the ultimate purpose or end of a range of
institutional activities within a State. And here lies the problem: we cannot
define the scope of acts that might supply the predicate conduct for denial
of justice by asking whether justice was actually done as a result of a particular
institutional activity. That would be entirely circular; it would be akin to
defining international responsibility as any act for which a State is internationally
responsible. Unfortunately this is the essence of many accounts of
denial of justice. In the words of one writer: ‘the legal efficacy of a final
judgment, from the point of view of international law, must depend . . . on
the international obligation not to administer justice in a notoriously unjust
manner’.35 The arbitral commission in Cotesworth & Powell likewise held
that ‘nations are responsible to those of strangers . . . for acts of notorious
33
Most writers support the thesis that a denial of justice can be committed by any branch of
power so long as it is directed to the administration of justice: de Visscher (n 1) 390–1; Fitzmaurice
(n 12) 105; Eagleton (n 48) 547; Freeman (n 1) 149–50, 161; Paulsson, (n 2) 44ff.
34
Freeman (n 1) 148–9, 161.
35
J Irizarry y Puente, ‘The Concept of “Denial of Justice” in Latin America’ (1944) 43
MichLRev 383, 406 (emphasis in original).
International Responsibility for Domestic Adjudication 9
injustice’,36 whereas the Harvard Draft Convention on State Responsibility
includes ‘a manifestly unjust judgment’37 in its typology for a denial of justice.
B. The Special Nature of Adjudication
The only way to approach this problem coherently is to ask what is special
about a certain range of acts attributable to the State that justifies (a) the
existence of a distinct cause of action for invoking international responsibility
for such acts and (b) the application of the finality rule as a constituent element
of that cause of action.
The thesis defended here is that there is something special about a State’s
commitment to adjudication as a form of decision-making. The special
characteristics of adjudication have been identified by Fuller:
Adjudication is . . . a device which gives formal and institutional expression to the
influence of reasoned argument in human affairs. As such it assumes a burden of
rationality not borne by any other form of social ordering. A decision which is the
product of reasoned argument must be prepared itself to meet the test of reason.
We demand of an adjudicative decision a kind of rationality we do not expect of
the results of contract or of voting. This higher responsibility toward rationality is
at once the strength and the weakness of adjudication as a form of social
ordering.38
It is this particular ‘burden’ of rationality inherent in decision-making through
adjudication, coupled with the opportunity afforded to affected parties to
present reasoned arguments during the course of that decision-making process,39
that sets adjudication apart from other institutions of social ordering
within the State. By virtue of this commitment to reasoned argument and to a
special form of participation by affected parties, the process of adjudication
gives rise to a moral obligation to comply with the decision resulting from that
process which is independent of the coercive powers at the disposal of the
State. The decision, in other words, is a legitimate source of authority in and of
itself. But this ‘higher responsibility toward rationality’ identified by Fuller
also explains the vulnerability of adjudication in the sense that a transparent set
of justifications for a particular decision that claims to be the most rational is
always exposed to being undermined by a better claim to rationality. Within a
36
Cotesworth & Powell (Great Britain) v Colombia, Award of August 1875 (cited in B Moore,
History and Digest of the International Arbitrations to which the United States has been a Party
[1898] 2050) 2083.
37
Harvard Law School (EM Borchard), Draft Convention on Responsibility of States for
Damage Done in Their Territory to the Person or Property of Foreigners (1929) 23 AJIL Spec Supp
133, 134. 38
Fuller and Winston (n 11) 367.
39
Fuller described this right of participation in the following terms: ‘[t]he distinguishing
characteristic of adjudication lies in the fact that it confers on the affected party a peculiar form of
participation in the decision, that of presenting proofs and reasoned arguments for a decision in his
favor.’ Fuller and Winston (n 11) 364.
10 International and Comparative Law Quarterly
domestic judiciary this vulnerability is even institutionalized through a
hierarchical court system affording rights of appeal.
This is the most compelling explanation for international law’s special
treatment of responsibility for domestic adjudication through the medium of
denial of justice.40 An authoritative determination of a claim of right or accusation
of guilt by a domestic adjudicative body41 cannot be disturbed by an
international court or tribunal simply on the basis that a more rational set of
reasons was available to that domestic adjudicative body. That would be
tantamount to exploiting the vulnerability of decisions produced through
adjudication; a vulnerability caused by the very necessity of justifying decisions
through a special discourse of argumentation appealing to rationality.
International law is deferential to the particular virtues of adjudication by respecting
the integrity of the process and the outcomes it produces. This
deference is manifest in the finality rule and the idea that denial of justice
focuses upon the procedural aspects of the adjudication rather than the
substantive reasons for the decision.
C. The Proper Justification for the Finality Rule
As already noted, the judicial landscape at the international level now includes
important domains where the writ of the local remedies rule does not run.
Modern writers and international tribunals have yet to appreciate the full
significance of this development for the law on the international review of
domestic adjudication. It is no longer sufficient merely to identify the different
functions of the local remedies rule and the finality rule. What is at stake is
whether the finality rule should be applicable to the impugned conduct of the
State as a matter of principle.
The finality rule can be justified by the particularities of adjudication as a
decision-making process that have been examined above. There is no such
thing as a perfect adjudicative process. International law does not recognize a
right of any litigant to the best possible procedure in terms of the accuracy of
the outcomes it produces. Nor does any domestic legal system endorse such a
right. To a significant extent each State is entitled to construct its adjudicative
40
International judges and writers have often expressed the sentiment that there is something
special about adjudication or judicial proceedings in particular but without drawing any normative
inferences from that sentiment. Paulsson (n 2) 228 (‘there is something exceptionally emotive
about challenges to national justice. they seem to strike at the heart of national pride’); de Aréchaga
(n 1) 278; de Visscher (n 1) 381; Eustathiades (n 2) 308; Freeman (n 1) 33; Yuille, Shortridge and
Co Case (1861) II Lapradelle and Politis Recueil 101, 103; Croft (UK v Portugal) (1856) II
Lapradelle and Politis Recueil 22, 24; Barcelona Traction, Light and Power Company, Limited
(Belgium v Spain), Second Phase, ICJ, Separate Opinion of Judge Tanaka, (1970) ICJ Rep 114,
153–156; Rosinvestco v The Russian Federation, Final Award of 12 September 2010, SCC
Arbitration (079/2005) para 274.
41
To paraphrase Fuller’s statement on the province of adjudication: Fuller and Winston (n 11)
368.
International Responsibility for Domestic Adjudication 11
procedures on the basis of a utilitarian calculation of the costs of maintaining
those procedures to the community at large versus the benefits afforded
to the litigants in any given case.42 Every adjudicative procedure for which
the State is responsible is the embodiment of a compromise along these
lines. The finality rule reflects the reality that this compromise can and does
produce error at different stages of the adjudicative process. States have
uniformly accepted the inevitability of such error by incorporating corrective
mechanisms within their systems of adjudication and international law
defers to such corrective mechanisms by making the finality rule a constituent
element for responsibility in respect of misfeasance or nonfeasance in domestic
adjudication.43
The finality rule can also be justified by the purpose of an adjudicative
process, which is to produce good or correct substantive outcomes. As will be
explored in greater detail in Part IV, the proper approach to establishing
the requisite threshold for a denial of justice is to link the procedural aspects
of the adjudication with the substantive outcome it produces. A denial of
justice can only be committed if the substantive right sought to be vindicated
is denied in a procedurally unjust manner. That substantive right must
have been definitively denied and this is ensured by the operation of the finality
rule.
D. The Question of Scope Reformulated
The doctrine of jurisdiction in international law includes a tripartite classification
for the exercise of sovereign powers: prescriptive, adjudicative and enforcement.44
This classification transcends the constitutional doctrine of the
separation of powers, which cannot dictate outcomes within the law of international
responsibility, in the sense that a single judicial organ can, by way of
example, exercise prescriptive, adjudicative and enforcement powers.
The thesis that has been defended is that denial of justice relates to the
exercise of adjudicative power and this can be situated within this tripartite
scheme. Having recourse to this taxonomy supplied by the doctrine of
jurisdiction is not without certain benefits; the chief among them being that the
descriptive labels for the three functions underlying the exercise of sovereign
powers have a settled meaning in international law.
42
R Dworkin, ‘Principle, Policy, Procedure’ in A Matter of Principle (OUP 1985).
43
Some legal systems rely on appellate mechanisms more than others: PD Hansen, ‘Stacking
Appellate Dissents: Due Process in the Appellate Arena’ (1983) 18 ValULRev 141, 144;
JH Merryman, The Civil Law Tradition (2nd edn, Stanford University Press 1985) 120;
MR Damaska, ‘Structures of Authority and Comparative Criminal Law’ (1975) 84 YaleJIntlL 480.
44
Restatement (Third) Foreign Relations Law of the United States, section 401; FA Mann,
‘The Doctrine of Jurisdiction in International Law’ in Studies in International Law (1973) 2–31;
M Akehurst, ‘Jurisdiction in International Law’ (1974) 46 BYBIL 145, 170–7.
12 International and Comparative Law Quarterly
E. The Conclusions on the Scope of Denial of Justice Applied
All the major treatises on denial of justice set out a list of paradigmatic
examples of a denial of justice by reference to the historic jurisprudence. In this
section the foregoing conclusions on the proper scope of denial of justice will
be applied to the taxonomy of examples suggested in the leading treatise by
Freeman with illustrative reference to some of the cases he cites as well as to
some more recent precedents.
1. Unlawful arrest, detention and harsh treatment during imprisonment45
Such acts are an exercise of the State’s enforcement power and should not be
adjudged as a denial of justice. The prejudice suffered by a victim of unlawful
arrest, detention and harsh treatment is immediate and there should be no
question of the delict only being consummated upon an unsuccessful attempt
to seek recourse through local remedies. In modern international law, these acts
would be adjudged in accordance with the rules governing the fundamental
right to liberty.
2. Refusal of access to court or its equivalent46
It is important to distinguish between access to an adjudicatory process and
access to justice within an adjudicatory process. A denial of access to an
adjudicatory process will normally be based upon an exercise of enforcement
power. For example, in Golder v UK,47 the European Court of Human Rights
for the first time interpreted the right to a fair hearing to include a right of
access to a court or tribunal. The applicant was a prisoner who was prevented
by the prison authority from consulting a solicitor in relation to a potential civil
action against a guard who had accused the applicant of participating in a
disturbance at the prison. This should not be considered as a denial of justice
but as a separate delict encompassed by the international minimum standard. It
would be absurd to apply the finality rule to an applicant in the circumstances
of Golder v UK, who was said to be blocked by an exercise of enforcement
power from gaining access to an adjudicatory process. The same would apply
to a litigant that is detained by the security services to prevent that person’s
attendance at a trial.
Turning now to access to justice within an adjudicatory process, any
decision by a State adjudicative body to the effect that it will not rule upon the
merits of a dispute is capable of constituting a denial of justice. This would
45
Freeman (n 1) ch VIII. Freeman acknowledged in propounding this category that there was a
disagreement among the writers as to whether it constituted a denial of justice: Borchard thought it
did, Durand, Rabasa and Eagleton disagreed and preferred to classify the international wrong
differently. Ibid 213–14. 46
Ibid ch IX.
47
ECHR Case No 4451/70, Judgment of 21 February 1975.
International Responsibility for Domestic Adjudication 13
include cases relating to the immunities afforded to a respondent State or State
organ.48 As decisions in such cases will themselves be the product of an
adjudicative process, the application of the finality rule is justified.
3. Unreasonable delay in administering justice49
There is no difficulty with this as a category of denial of justice, which
must logically include nonfeasance as well as malfeasance in the adjudicative
process. The complexity, of course, arises in the assessment of what is
an ‘unreasonable delay’ and for that, as Freeman rightly noted, ‘the
substance of the litigation must be known . . . to determine whether there
were justifiable causes for the delays complained of’.50 This correlation
between procedural justice and the substantive aspects of the adjudication is
explored in Part IV.
4. Irregularities in the conduct of the proceedings51
This might be said to be the heart of the matter for denial of justice. The
principal treatises on denial of justice collate a formidable number of examples
in the historic jurisprudence; for present purposes it will suffice to note that
cases involving executive interference with the adjudicative process52 would
not, in accordance with the thesis defended here, fall to be considered as a
denial of justice.
For instance, the case of Robert E Brown,53 which is notorious by virtue of
the President of South Africa’s decision to remove the Chief Justice of the
High Court from office after the latter had rendered a judgment in favour of the
US engineer, Mr Brown, should not be considered as a denial of justice case.54
A proclamation was issued by the President allowing individuals to be issued
with gold-prospecting licences over a property in South African known as
Witfontein farm. Mr Brown then incurred substantial costs in pegging out the
areas on that farm for which he intended to apply for such licenses. He duly
made his application to the responsible official, who was mandated to grant it
in accordance with the terms of the proclamation. Instead that official refused
to do so and later informed Mr Brown that the proclamation had been revoked.
The legislature subsequently enacted a law that denied anyone who had
suffered damage from the revocation the right to seek compensation. The High
Court struck down that law as unconstitutional and this is what led to the
removal of the Chief Justice.
48
eg Fogarty v UK, ECHR Case No 37112/97, Judgment of 21 October 2001; Mondev
International Limited v United States, Award of 11 October 2002, ICSID Case No ARB(AF)/99/2.
49
Freeman (n 1) ch X. 50
Freeman (n 1) 246.
51
Ibid ch XI. 52
ibid 300–3. 53
Robert E Brown (n 9).
54
Accord Freeman (n 1) 101, 110; Contra Paulsson (n 2) 51.
14 International and Comparative Law Quarterly
The claim was submitted to an arbitral tribunal under clause 1 of the Special
Agreement between Great Britain and the United States of 18 August 1910
‘as a claim based on the denial in whole or in part of real property rights’.55 In
other words, the claim was treated in essence as a claim for expropriation even
if the term ‘denial of justice’ was used. According to the Tribunal: ‘Brown had
substantial rights of a character entitling him to an interest in real property or to
damages for the deprivation thereof, and that he was deprived of these
rights’.56 The wrong to Brown was consummated upon the revocation of the
proclamation and there would be no reason of principle to apply the finality
rule to this type of wrong. The executive interference in the adjudicative
process in this case was indeed shocking, but it was irrelevant to the basic
elements of the expropriation. It was, however, relevant to the local remedies
rule, which applied as a procedural matter to arbitrations under the Special
Agreement.
The Tribunal had no difficulty in concluding in the light of these facts
that any further resort to local remedies would be futile. A denial of justice
could have been constituted by the ultimate dismissal of Mr Brown’s case by
the reconstituted High Court if, on analysis, he had suffered a procedural
injustice in that context, but this was not the focus of the claim before the
Tribunal.
By contrast, in Petrobart v Kyrgyzstan,57 the executive inference in question
was a letter sent by the Vice Prime Minister to the Chairman of the Bishkek
Court requesting the suspension of the execution of the judgment in favour of
Petrobart and contrary to the interest of a State enterprise. The issuance of such
a letter caused no damage to Petrobart’s investment per se; it only caused
damage when it was acted upon by the Bishkek Court in the context of an
adjudicative procedure. The claim thus should be analysed as a claim for denial
of justice.58
5. Responsibility arising from the content of the judgment59
The traditional accounts of denial of justice insist that only procedural
misfeasance or nonfeasance is actionable. International law only intervenes if
the authoritative determination of a domestic adjudicator was made in violation
of the fundamental requirements of an adjudicative procedure. A central tenet
of the orthodox position is that international courts and tribunals cannot
exercise substantive review over determinations of domestic law. International
responsibility cannot, therefore, arise from an erroneous application of
domestic law by a domestic adjudicator.60
55
Robert E Brown (n 9) 128. 56
ibid.
57
Petrobart Limited v Kyrgyzstan, Award of 29 March 2005, SCC Case No 126/2003.
58
Amto (n 22). 59
Freeman (n 1) ch XII.
60
ibid 317 (see also authorities listed in note at 318); D Anzilotti, ‘La responsabilité
internationale des États à raison des dommages soufferts par des étrangers’ (1906) 13 Revue
International Responsibility for Domestic Adjudication 15
In order to ring-fence the forbidden territory, international courts and writers
have drawn a sharp distinction between the substantive determinations of a
domestic court judgment and the procedure generating those determinations.
International law, according to the orthodox position, is only concerned with
the latter: ‘[d]enial of justice is always procedural’.61 If the focus of international
review is purely procedural, so the theory goes, then the ring fence
remains impenetrable; the international court is thereby disabled from secondguessing
the application of domestic law by a domestic judge.
There has been sporadic dissent against this orthodox position in the context
of the debate as to whether a domestic judgment tainted by some manifest or
perverse error of domestic law should nonetheless attract international responsibility.
Some international courts and writers have answered this question
in the affirmative62 but the prevailing view is that judicial error in this context is
simply evidence of a flawed procedure (such as bias or fraud on the part of the
judge) such that the substantive determinations of domestic law, as determinations
of law, remain shielded from substantive review by an international
court.63 According to this approach, substantive injustice only has evidential
value in demonstrating a procedural injustice:
The relevance of the degree of injustice really lies only in its evidential value. An
injust judgment may and often does afford strong evidence that the court was
dishonest, or rather it raises a strong presumption of dishonesty. It may even
afford conclusive evidence, if the injustice be sufficiently flagrant, so that the
judgment of a kind which no honest and competent court could possibly have
given.64
The theory at work here is that denial of justice is limited to instances of
procedural injustice but that substantive injustice can provide conclusive or
strong evidence of procedural injustice. The problem with this theory is that it
is nothing more than semantic camouflage for what amounts to a review of the
générale de droit international public 285, 297; P Fauchille, Traité de droit international public
(Rousseau 1921) vol 1, 533–4; de Visscher (n 1) 376 (‘jamais la seule violation du droit interne ne
peut former la base d’une réclamation internationale fondée sur un déni de justice’); International
Law Commission (Crawford), Second Report on State Responsibility, UN Doc A/CN.4/498 (1999)
para 75; SS Lotus (France v Turkey), 1927 PCIJ (Ser A) No 10 (Sept 7) 24; Robert Azinian v
Mexico, Award on Jurisdiction and Merits of 1 November 1999, ICSID Case No ARB(AF)/97/2,
39, para 99; Waste Management Incorporated v Mexico, Award of 30 April 2004, ICSID Case No
ARB(AF)/00/3 para 129; Jan De Nul (n 22) para 209; Mohammad Ammar Al-Bahloul v Republic
of Tajikistan, Partial Award on Jurisdiction and Liability of 2 September 2009, SCC Case No (064/
2008) para 237; Chevron (n 15) para 247; Rosinvest Co UK Ltd v Russian Federation, Final Award
of 12 September 2011, SCC Case No 075/2009, para 272; Amto (n 22) para 80; Iberdrola Energía
SA v Guatemala, Award of 17 August 2012, ICSID Case No ARB/09/5, paras 491, 502, 507;
Albert Jan Oostergetel Theodora Laurentius v Slovak Republic, Final Award of 23 April 2012,
UNCITRAL para 273; Fitzmaurice (n 12) 110; Harvard Law School (EM Borchard), Draft
Convention on Responsibility of States for Damage Done in Their Territory to the Person or
Property of Foreigners (1929) 23 AJIL Spec Supp 133, 134.
61
Paulsson (n 2) 98. 62
Freeman (n 1) 309–17.
63
Fitzmaurice (n 12) 110–11. 64
Ibid 112–13.
16 International and Comparative Law Quarterly
substantive outcome produced by the domestic court. An international court
cannot draw inferences from an injustice caused by substantive error unless it
has determined that there has actually been a substantive error through an
assessment of the applicable domestic law and that it is a particularly grave
error. There is simply no difference in principle between the statements: ‘the
domestic court got the point hopelessly wrong’ and ‘no competent domestic
court could have decided the point in that way’.65 The latter statement is merely
a reformulation of the first but perhaps with a different rhetorical sting.
The truth is that international courts and tribunals are compelled, in
conducting their review of domestic adjudication, to assess the reasonableness
of the substantive outcome of the procedure.66 In some cases the impugned
procedural conduct is so flagrant that the substantive outcome is relegated to
the background of the review.67 But even in those cases there would be no
claim in the first place unless the substantive outcome was unfavourable to
the foreign national. A theory of procedural justice cannot be divorced from
substantive outcomes: this will be explored in some detail in Part IV.
5. Inadequate measures to apprehend, prosecute and punish persons guilty
of crimes against aliens68
Such measures are likely to result from the exercise of enforcement powers by
prosecutorial authorities and hence would not fall within the concept of denial
of justice defended here. Claims for misfeasance or nonfeasance in respect of
the prosecutorial authorities are generally formulated as a breach of the
obligation to accord full protection and security or fair and equitable treatment
in international investment law rather than a denial of justice.69 Modern
international human rights law would not approach such measures in terms of a
right to a fair trial or to due process either. The right to life in Article 2 of the
European Convention on Human Rights, for instance, requires the State to have
effective criminal laws in place to deter the commission of offences against the
person which are ‘backed up by law-enforcement machinery for the
prevention, suppression and sanctioning of breaches’ of such laws.70
65
A distinction made by Fitzmaurice: ibid 113.
66
Freeman (n 1) 171 (‘It is idle to suppose that the international body is not going to consider
the substance of the national court’s judicial pronouncements but only the question of whether the
state has complied with its international obligations. The gravamen of the complaint involved in
many of these cases is whether the judicial proceedings were “regular”. How can an international
tribunal decide this without reverting to the substance of the original cause of action giving rise to
the claim?’).
67
For reasons discussed below, such instances are not properly to be considered within the
context of denial of justice. 68
Freeman (n 1) ch XIII.
69
Such claims were dismissed in: GEA Group Aktiengesellschaft v Ukraine, Award of 31
March 2011, ICSID Case No ARB/08/16, paras 322–323; Frontier Petroleum Services Ltd v Czech
Republic, Final Award of 12 November 2010, PCA, paras 434–438.
70
Osman v UK, ECHR Case 87/1997/871/1083, Judgment of 28 October 1998, para 90.
International Responsibility for Domestic Adjudication 17
6. Non-execution of the judgment71
A judgment or arbitral award is a chose-in-action and thus a form of intangible
property. As intangible property, a judgment or award can be expropriated by
the State. Such was the case, for instance, in the leading decision of the
European Court of Human Rights in Stran Greek Refineries and Stratis
Andreadis v Greece.72 The Court characterized an arbitral award rendered in
Greece as a ‘debt . . . that was sufficiently established to be enforceable’
because it was subject to no further appeal or challenge under the applicable
law. It was thus a ‘possession’ with the meaning of Article 1 of Protocol 1 of
the European Convention on Human Rights. The applicant had been deprived
of that possession by virtue of a government decree that rendered unenforceable
any arbitral award arising out of a contract that had been concluded by the
military junta that ruled Greece between 1967 and 1974. This was an executive
act outside the framework of adjudication and thus should not be adjudged as a
denial of justice in accordance with the thesis defended here.73
By way of contrast, the complaint in Kin-Stib and Majkic´ v Serbia would be
characterized as a case of denial of justice because the issue of the enforceability
of the arbitral award was the subject of an adjudicatory procedure in the
Serbian courts that had been tainted by excessive delay.74
IV. THE QUESTION OF THRESHOLD: A THEORY OF PROCEDURAL RIGHTS
A. Defining the Problem
The essential basis of a denial of justice is that an individual has suffered a
procedural injustice, according to the standards of international law, in seeking
to vindicate a substantive right.75
What, then, is the threshold for a procedural injustice? What, in other words,
are the minimum standards that international law imposes upon a domestic
adjudicative procedure? In the course of answering this question, international
courts and tribunals have resorted to two techniques. The first is to supplement
the concept of procedural fairness with an appropriate adverb to formulate a
threshold for responsibility such as ‘gross procedural unfairness’ or
‘fundamental procedural unfairness’. The poverty of this technique, as well
71
Freeman (n 1) Ch XIV.
72
ECHR Case No 13427/87, Judgment of 9 December 1994.
73
It should be noted that the ECtHR held that the Hellenic Government’s acts constituted a
violation of the right to a fair trial in art 6 as well as a deprivation of a possession under art 1 of
Protocol 1 (A1P1) of ECHR.
74
This is not the way the European court approached the matter: the court found that there had
been a breach of A1P1 and this rendered the claim for breach of art 6 moot. Regent Company v
Ukraine, ECHR Case No 773/03, 29 September 2008; GEA Group (n 69); White Industries (n 15).
75
By this I do not mean that only claimants can suffer a denial of justice: a defendant in
criminal proceedings has a substantive right not to be subjected to a criminal sanction if he is
innocent.
18 International and Comparative Law Quarterly
as its propensity to generate arbitrary decisions, does not require further
elaboration.76
The second technique is to draw upon a list of paradigmatic examples of
serious procedural irregularities, whether inductively from past decisions or
otherwise, that generate international responsibility for something akin to a
denial of justice. The problem with this approach is that whilst it might identify
the common types of grievances leading to responsibility as a matter of the
historic record, it provides precious little by way of normative guidance.
It is asserted, for example, that gross delay is a classic instance of a denial of
justice. But a delay of ten years in the adjudication of a damages claim for
breach of contract is not the same as a delay of ten years in disposing of a
charge of murder where the accused is incarcerated pending the outcome of the
trial. Can the problem be resolved simply by adding the caveat that whether or
not delay in domestic adjudication has been ‘gross’ depends upon the
circumstances of the particular case? The answer is no because an international
judge cannot determine which circumstances are relevant to this assessment
unless the judge has a theory for why delay is productive of unfairness.
Suppose that substantively-correct decisions were ultimately rendered after a
delay of ten years in both the breach of contract case and the murder trial:
liability for breach of contract was correctly found and compensation for the
expected benefits under the contract together with interest was assessed with
complete accuracy; so too in the murder trial the accused was properly
acquitted after an exhaustive examination of all the evidence. Has there been a
denial of justice in either (or both) cases? One approach might be to adjudge
the fairness of a procedure purely by reference to the quality of the outcomes it
generates. The value of participation in an adjudicative procedure might be
justified instrumentally in terms of facilitating sound judicial reasoning and,
particularly in common law systems, good law-making.77 In line with this
approach, the impeccable results produced by the domestic adjudication would
be a complete defence to the denial of justice claims in both cases. But this fails
to capture what intuitively at least seems to be an important distinction between
the cases: the delay was likely to have caused more harm to the accused in the
criminal proceedings, who was deprived of the right to liberty for ten years,
than to the claimant in the breach of contract case, who was awarded the value
of its contractual benefit in today’s terms by virtue of a retrospective account of
interest.
Another approach might recognize that there is an inherent value in
participating in an adjudicative process, in terms of respect for human dignity
and autonomy, and procedural fairness must be tested by reference to the way
76
A criticism can be found in Freeman (n 1) 327–8.
77
Fuller defended this ‘outcome-based’ theory: Fuller and Winston (n 11) 364; See generally
RG Bone, ‘Lon Fuller’s Theory of Adjudication and the False Dichotomy between Dispute
Resolution and Public Law Models of Litigation’ (1995) 75 BULRev 1273.
International Responsibility for Domestic Adjudication 19
in which litigants are treated within that process, independently of the outcome
it produces.78 This appeals to our sense that there is a fundamental distinction
between losing and being treated unfairly,79 and perhaps following that approach
it might be concluded that the delay of ten years is productive of a
denial of justice in both cases. This theory, however, fails to provide any real
guidance as to what specific elements must be guaranteed by a procedure to
satisfy a general right of adequate participation.80 Why must an oral hearing be
afforded to an accused instead of merely an opportunity to present a written
pleading? In a critique of Ely’s process-based constitutional theory,81 Tribe
argued that the ‘process theme by itself determines almost nothing unless its
presuppositions are specified, and its content supplemented, by a full theory of
substantive rights and values’.82 He was right for US constitutional law and
equally correct for denial of justice in international law.
Another problem is that such a theory assumes that a distinct harm is
inflicted upon a party who is denied adequate participation in a procedure. But
is it really possible to separate the harm occasioned by inadequate participation
from the harm of an erroneous decision?83 Can there be an institutional value
in guaranteeing participation beyond what is required for an accurate decision?84
In the words of one writer: ‘ones does not often hear stories of
individuals who win complaining that they did not get their day in court’.85
The purpose of a system of adjudication is to decide cases and generate good
outcomes. The merits of an outcome are inexorably linked to the substantive
law governing the rights and obligations in question. The procedural aspects of
an adjudication are important because they impact upon the magnitude of the
risk of error and hence the quality of the substantive outcome in the adjudication.
A theory of procedural justice is required to identify the normative
78
DJ Galligan, Discretionary Powers (Clarendon Press 1986) 335; OM Fiss, ‘The Allure of
Individualism’ (1993) 78 IowaLRev 965, 978 (‘participation has a value in its own right,
manifesting a public commitment to the dignity and worth of the individual’). By linking
participation with the legitimacy of the decision itself such a theory can also provide a justification
for an obligation to comply with a decision that is known to be substantively wrong: LB Solum,
‘Procedural Justice’ (2004) 78 SCalLRev 181, 190.
79
JL Mashaw, Due Process in the Administrative State (Yale University Press 1985) 162–3.
80
Galligan (n 78) 333.
81
JH Ely, Democracy and Distrust (Harvard University Press 1980).
82
LH Tribe, ‘The Puzzling Persistence of Process-Based Constitutional Theories’ (1980) 89
YaleLJ 1063, 1064. In the same article he said: ‘even the constitution’s most procedural
prescriptions cannot be adequately understood, much less applied, in the absence of a developed
theory of fundamental rights that are secured to persons against the state—a theory whose
derivation demands . . . controversial substantive choices. . .’ Ibid 1067. Also RG Bone, ‘Making
Effective Rules: The Need for Procedure Theory’ (2008) 61 OklaLRev 319, 329, 334.
83
Dworkin (n 61) 101–3.
84
RG Bone, ‘Rethinking the “Day in Court” Ideal and Nonparty Preclusion’ (1992) 68
NYULR 193, 282.
85
L Kaplow, ‘The Value of Accuracy in Adjudication: An Economic Analysis’ (1994) 23 JLS
307, 390 n 249.
20 International and Comparative Law Quarterly
constraints on the distribution of this risk in the design and application of
procedural rules.
We can draw some preliminary conclusions from the foregoing observations.
First, the international obligation to uphold minimum standards within a
domestic adjudicative procedure cannot be framed as an obligation to entrench
the most accurate procedures for ascertaining the merits of a claim of a substantive
right that can possibly be devised regardless of their cost to society.86
All States are entitled to balance the interests of litigants resorting to their
systems for the administration of justice and the interests of the community of
taxpayers. No one has a right to a perfect or infallible procedure in any legal
system.
Second, the international obligation cannot be formulated as an obligation to
have reached the correct substantive outcome in the particular case. This would
be tantamount to elevating the substantive rights in question to rights protected
by international law.87 And yet a denial of justice may occur if the vindication
of a contractual right in a private agreement is frustrated in the domestic courts
even though international law is entirely neutral on whether this substantive
right should be recognized and protected within the domestic legal system.
Third, the international obligation must nevertheless be linked in some way
to the substantive outcomes produced by the domestic adjudication given that
the purpose of a system of adjudication is to decide cases and generate good
outcomes.88
Fourth, the obligation cannot simply require that the correct procedures are
followed in domestic law because that would eliminate the objectivity of the
minimum standards.89 No doubt a breach of the rules establishing the domestic
procedures may be an important factor in adjudging a denial of justice in
accordance with an international standard, but it cannot be definitive. It cannot
be right, for example, to conclude that a judge’s ultra vires decision to admit
hearsay evidence must, ipso facto, amount to a denial of justice.
86
Galligan (n 78) 327.
87
Formulated differently, the international obligation cannot guarantee the content of any
substantive right in domestic law. This principle has been reinforced on many occasions in relation
to art 6 of the European Convention on Human Rights: H v Belgium, ECHR Case No 8950/80,
Judgment of 30 November 1987; R (Kehoe) v Secretary of State for Work and Pensions [2006] 1
AC 42 (in relation to civil rights); R v G [2008] 1 WLR 1379 (in relation to the criminal law).
88
Bone (n 77) 332.
89
Freeman (n 1) 264, 292–3, 299. It should be noted that even if the standard is to ensure that
domestic procedural rules are followed then this has value in upholding the principle of legality. If
the standard is to impose limitations on the possible range of procedures that can be prescribed by
legislatures then obviously this goes further than securing the principle of legality. The expansive
interpretation is favoured by the US Supreme Court in respect of the due process clause: Murray’s
Lessee v Hoboken Land & Improvement Co, 59 US (18 How) 272 (1856). See generally on
substantive due process: RG Dixon, ‘The “New” Substantive Due Process and the Democratic
Ethic: A Prolegomenon’ (1976) BYULRev 43, 84; LH Tribe, ‘Substantive Due Process’ in L Levy
(ed), Encyclopedia of American Constitutional Law (1986).
International Responsibility for Domestic Adjudication 21
All these conclusions are consistent with the approach taken by the US
Supreme Court towards the due process protection in the Fifth Amendment of
the Constitution. In a case about whether a person’s social security benefits
could be terminated without a hearing, the Court said:
[O]ur prior decisions indicate that identification of the specific dictates of
due process generally requires consideration of three distinct factors: First, the
private interest that will be affected by the official action; second, the risk of an
erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards; and
finally, the Government’s interest, including the function involved and the fiscal
and administrative burdens that the additional or substitute procedural requirement
would entail.90
Elsewhere the Court has confirmed that compliance with the standing rules of
procedure is not dispositive of compliance with the due process requirements
of the Constitution.91
B. A Theory of Procedural Rights
We have defined the outer contours of the international obligation but are still a
long way from elucidating its core. The immediate difficulty is that there is no
clear conception of what fundamental procedural standards must be protected
in the design and application of procedural rules within the domestic legal
systems themselves. The orthodox view is simply that a balance must be struck
between the interests of the individual litigant and in the interests of the
political community as a whole. That is merely restating the problem.
The only way out of this conundrum is for international law to adopt a
theory of procedural rights as the object of international protection through the
delict of denial of justice. The concept of ‘rights’ is important in this context
for it carves out a space within which a respondent State is not permitted
to argue that the alleged procedural injustice was the product of a legitimate
cost–benefit analysis in the design or application of the procedural rules in
question. A right in the sense used here is the repository of an argument that
must prevail over all others in adjudication, including the utilitarian argument
that the costs to the community embodied in procedural rules conducive of
greater accuracy of substantive outcomes outweighs the benefits to individual
litigants. What should be obvious from the foregoing discussion is that the
concept of procedural rights upon which international protection depends must
be tailored to the content of the substantive right being adjudicated within the
national legal system.
90
Mathews v Eldridge, 424 US 319, 334–335 (1976). The Court decided that a hearing was not
required based on these three factors.
91
Murray’s Lessee v Hoboken Land & Improvement Co, 59 US (18 How) 272 (1856).
22 International and Comparative Law Quarterly
We must have a theory of procedural rights that is linked to substantive
outcomes. The most compelling articulation of such a theory has come from
the pen of Dworkin,92 who conceptualizes procedural rights as normative constraints
upon the acceptable level of risk of substantive error in adjudicative
procedures. Every person has a procedural right to a level of risk that reflects
equal concern and respect for the importance of the moral harm that might
be inflicted by a substantive error in an adjudicative procedure.93 The theory
can be summarized as three propositions, which will be elaborated by reference
to the task facing an international tribunal with competence over a denial of
justice claim.
First, there is a special kind of injustice that occurs when an adjudicative
body erroneously finds against an individual’s right in substantive law.94
This is characterized as ‘moral harm’ in contradistinction to other types
of harm in the form of economic loss or physical suffering that might result
from an erroneous decision that is referred to as ‘bare harm’. Moral harm is a
‘distinct kind of harm against which people must be specially protected’95 by
the State.
Suppose the constitution of a particular State enshrines an absolute right not
to be convicted of a crime unless proven guilty in a court of law. The
constitution is silent, however, on the procedural aspects of a criminal trial. The
State’s legislature designs a code of procedural rules in criminal cases by
engaging in a type of balancing exercise: it quantifies the estimated suffering of
those that would be mistakenly convicted if a procedural rule were adopted
against the cost to taxpayers in maintaining that rule in the criminal justice
system. If a different procedural rule would reduce the risk of someone being
mistakenly convicted without imposing additional costs on taxpayers, then that
rule should be preferred.96 Has the State’s legislature discharged its obligation
to respect the substantive right in the constitution?
The answer is no. There is a contradiction in adhering to an absolute right
not to be convicted if innocent without recognizing that there is something
special about the violation of that right, which cannot be captured in a
utilitarian cost–benefit analysis that can only take into account bare harm.97
What is special is that a person wrongly convicted of a crime suffers moral
harm and the State has a particular duty to ensure that people within its
jurisdiction do not suffer moral harm:98 ‘[t]he utilitarian approach ignores the
special moral value that make the substantive right a right’.99
92
R Dworkin, ‘Principle, Policy, Procedure’ in A Matter of Principle (1985).
93
Ibid 84–5; RG Bone, ‘Procedure, Participation, Rights’ (2010) 90 BULRev 1011, 1019.
94
Dworkin (n 92) 80. 95
ibid 81. 96
ibid 81.
97
The classic exposition of such an approach is: RA Posner, ‘An Economic Approach to Legal
Procedure and Judicial Administration’ (1973) 2 JLS 399.
98
Dworkin (n 92) 81. 99
RG Bone (n 93) 1011, 1015.
International Responsibility for Domestic Adjudication 23
Second, people have a right to adjudicative procedures that attach an
appropriate level of importance to the risk of moral harm.100 If the foundation
of the denial of justice claim is the moral harm produced by the content of the
procedural rules themselves, an international tribunal would have to assess the
risk of moral harm associated with an erroneous decision on the substantive
right in question in the domestic proceedings and determine whether the
impugned procedural rule attaches an appropriate weight to the risk of that
moral harm. Dworkin’s stark example of a procedure that would violate this
first right is a rule to the effect that criminal cases would be decided by flipping
a coin.101
In mature legal systems a consensus will emerge on the elements of an
adjudicative procedure that are particularly valuable in minimalizing the risk of
moral harm. Such elements might be described as basic requirements of due
process or the right to a fair trial.102
Third, people have a right to a ‘consistent weighting of the importance of
moral harm’103 in an adjudicative procedure. This second right is particularly
important if the question of whether a procedural rule has been designed to
give appropriate weight to the risk of moral harm is controversial such that
reasonable people might disagree.104 It allows the claimant in a denial of
justice claim to demonstrate that even if the weight given to the risk of moral
harm in the design of the rule is within the margin of appreciation given to
States, the application of the rule is nevertheless inconsistent with ‘the
community’s own evaluation of moral harm embedded in the law as a
whole’.105 The claimant has a right to equal treatment in relation to that
evaluation. Dworkin gives the example of the number of jurors in a criminal
trial.106 It would be difficult to postulate that only a jury of twelve rather than
six members is consistent with giving appropriate weight to the risk of moral
harm occasioned by a false conviction. There would be no violation of the first
right. But if the practice in a given State over hundreds of years has been to
empanel twelve members for a criminal trial, but in the case of a particular
accused only six members were empanelled, this would be a violation of the
second right. The community’s law has evaluated the risk of moral harm as
requiring a jury of twelve members and the accused is entitled to equal
treatment in that evaluation.
Dworkin had in mind the national community in question and that should
certainly be the starting point in an international tribunal’s assessment as well.
100
Dworkin (n 92) 89. Dworkin formulates the right as to procedures that attach the ‘correct
importance’ to the risk of moral harm. For present purposes the right is formulated as the
‘appropriate level of importance’ to reflect the margin of appreciation that must be afforded by an
international tribunal to its assessment of domestic laws. 101
ibid.
102
A classic description of which can be found in: T Bingham, ‘The Rule of Law’ (2007) 66
CLJ 67, 80. 103
Dworkin (n 92) 89.
104
Ibid 89. 105
ibid. 106
ibid 90–1.
24 International and Comparative Law Quarterly
But international law, and in particular its treatment of fundamental rights,
must supplement this analysis.
C. The Theory of Procedural Rights Applied
In Chevron v Ecuador the Tribunal found that delays of 13 to 15 years in respect
of seven claims for breach of contract before the Ecuadorian courts violated the
obligation to provide ‘effective means’ to enforce rights in the USA/Ecuador
bilateral investment treaty.107 At the time of the Tribunal’s award, the appellate
process had been completed in two cases thus yielding final judgments subject
to no further recourse. In two other cases appeals in respect of first instance
judgments were still pending. In two further cases there had been judgments at
first instance and in the final case there had been no judgment at all.108 The
Tribunal nonetheless found that all such judgments were a nullity as a matter of
international law due to the actionable delay that had been consummated by the
time that Chevron had filed its notice of arbitration. In accordance with the
Tribunal’s logic, it followed that it could ignore the substantive findings of the
Ecuadorian courts and decide the questions of Ecuadorian law for itself in
assessing the damages that would have been awarded by (hypothetical)
Ecuadorian courts had they adjudicated the claims in a timely manner.
Suppose the Tribunal was comprised of three arbitrators, each adhering to
one of the three theories of procedural fairness outlined above. The first
arbitrator, who is concerned only with substantive outcomes, might conclude
that in those cases in which the Ecuadorian courts have rendered decisions,
there could be no violation of international law in respect of the delay. In those
cases in which no decisions had been rendered and thus there were no
substantive outcomes at all, the first arbitrator might be prepared to accept a
violation of international law so long as the delay attained a particular
threshold.
The second arbitrator, who is concerned about the independent value of
participating in an adjudicatory procedure, might conclude that inordinate
delay in all the cases could amount to a violation of international law regardless
of whether decisions had been rendered in individual cases.109
The third arbitrator, armed with Dworkin’s theory of procedural rights,
would approach the cases in the following way. All the seven cases concerned
the vindication of Chevron’s alleged contractual rights to recover damages
from its counterparty. As there was no allegation of impropriety concerning the
actual judgments rendered in some of those cases it follows that Chevron’s
substantive rights had not been denied in those cases. A denial of justice arises
when the alleged victim has suffered a procedural injustice, according to the
107
Chevron (n 15) para 270. 108
ibid para 149.
109
The second arbitrator might be said to adhere to a ‘pure’ theory of procedural justice in the
sense articulated by Rawls: J Rawls, A Theory of Justice (Harvard University Press 1971) 86.
International Responsibility for Domestic Adjudication 25
standards of international law, in seeking to vindicate a substantive right. In
those cases in which judgments had been rendered, there could be no denial of
justice unless the delay had somehow undermined the substantive right.110
This might be the case in a criminal trial but unlikely to pertain to a case for
contractual damages, especially if interest is awarded on the amount in dispute.
In relation to the cases in which no judgment had been rendered after 13 to
15 years it is clear that Chevron had not been able to vindicate its substantive
right to contractual damages for procedural reasons. The unjustified denial of a
substantive right is productive of moral harm. In this case is was not that the
procedural rules in question were defective in failing to give appropriate weight
to that risk of moral harm, but instead it was the application of those procedures
in the particular cases that may have violated Chevron’s procedural right to the
consistent weighting of the importance of moral harm as disclosed by the best
interpretation of how Ecuadorian law and international law as a whole assigns
relative importance to different types of moral harm. In approaching this
analysis it would be critical to ascertain the weight given by those legal systems
to the risk of the type of moral harm suffered by Chevron. That moral harm
could be described as the unjustified denial of an economic benefit. The best
interpretation of Ecuadorian law and international law is likely to reveal that
the avoidance of such moral harm is not at the apex of the legal system’s
concern as compared with the moral harm associated with, for instance, an
unjustified criminal conviction. It would also be important to investigate the
average length of proceedings in other cases involving claims for contractual
damages in Ecuador to ascertain whether the Ecuadorian legal system has
given consistent weight to the risk of moral harm in respect of the seven
contractual claims involving Chevron.
The third arbitrator might not dissent from the Tribunal’s ultimate ruling that,
in respect of the cases in which no judgment had been rendered, a delay of 13
to 15 years constituted a denial of justice. But the third arbitrator would be
concerned by the absence of any account of the nature of the harm suffered by
the claimant as a result of that delay in the Tribunal’s formulation of the
threshold for a denial of justice, in contrast with the approach taken by other
international courts.111 Nor was there an analysis of the length of proceedings
110
This has been the approach of courts interpreting art 6 of the ECHR when there has been
excessive delay in rendering a judgment: the judgment will only be quashed if, apart from the
excessive delay, it is not safe and it would be unfair to allow it to stand: Cobham v Frett [2001] 1
WLR 1775, 1783–1784 (PC); Bangs v Connex South Eastern Ltd [2005] 2 All ER 316 (CA).
111
For instance, the ECHR considers that the threshold for unreasonable delay for the purposes
of art 6 of the ECHR is lower in criminal proceedings: Kalashnikov v Russia, ECHR Case No
27095/99, Judgment of 12 May 2002, para 132. It has also taken into account the fact that the
defendant was detained in custody during the proceedings: Abdoella v Netherlands, ECHR Case
No 12728/87, 25 November 1992, paras 18–25. In civil cases involving the important substantive
rights such as the custody of children, the ECHR has also lowered the threshold for a violation of
art 6: Nuutinen v Finland, ECHR Case No 32842/96, 27 June 2000. The importance of expediency
in criminal proceedings was mentioned in investment cases: White Industries (n 15) para 10.4.14;
Roussalis v Romania, Award of 7 December 2011, ICSID Case No ARB/06/1, para 602.
26 International and Comparative Law Quarterly
in like cases in Ecuador. Instead, apart from the length of the delay itself, the
Tribunal only took into account the complexity of the cases and whether the
claimant’s own conduct contributed to the delay.112
V. THE RELATIONSHIP BETWEEN DENIAL OF JUSTICE AND OTHER INTERNATIONAL
NORMS IN RESPECT OF THE ADJUDICATIVE PROCESS
Now that the contours of denial of justice have been defined, the problem of the
relationship between denial of justice and other norms of international law that
may be relevant to a domestic adjudication can be addressed. There are two
issues. First, are there other forms of international delictual responsibility
towards foreign nationals other than denial of justice that can apply to acts and
omissions associated with a domestic adjudicative process? Can, for instance, a
first instance court decision be attacked as an expropriation rather than a denial
of justice, such that there would be no need to adhere to the finality rule? The
second issue is the significance that should attach to the transgression of an
international legal norm within the context of a domestic adjudication. Is such
a transgression actionable as a denial of justice or through some other form of
delictual responsibility towards foreign nationals? To give a topical example,
is a domestic court decision that is inconsistent with the State’s obligations
under the New York Convention for the Recognition and Enforcement of
Foreign Arbitral Awards capable of amounting to a denial of justice or some
other form of delictual responsibility towards foreign nationals?
A. Is Denial of Justice the Exclusive Form of Delictual Responsibility
towards Foreign Nationals for Acts or Omissions Associated with a
Domestic Adjudicative Process?
A constituent element of all forms of delictual responsibility toward foreign
nationals in international law is damage.113 This is the case for delictual
responsibility under general international law114 and for the special regime of
delictual responsibility established by investment treaties.115 It is also a
112
Chevron (n 15) paras 253–254.
113
It is different, of course, in respect of international responsibility vis-à-vis States, which is
why the ILC’s Articles on State Responsibility are neutral on this point: Commentary to art 2, para
9 in J Crawford, The International Law Commission’s Articles on State Responsibility (2002) 84.
114
The invocation of responsibility by diplomatic protection is contingent upon an ‘injury’. Art
1 of the ILC’s Draft Articles reads: ‘For the purposes of the present draft articles, diplomatic
protection consists of the invocation by a state, through diplomatic action or other means of
peaceful settlement, of the responsibility of another state for an injury caused by an internationally
wrongful act of that state to a natural or legal person that is a national of the former state with a view
to the implementation of such responsibility.’
115
Z Douglas, ‘The Enforcement of Environmental Norms in Investment Treaty Arbitration’ in
P-M Dupuy and J Viñuales (eds), Harnessing Foreign Investment to Promote Environmental
Protection (CUP 2013); Merrill & Ring Forestry LP v Canada, Award of 31 March 2010,
UNCITRAL, para 245. There is an express provision to that effect in some treaties: art 24(1)(A)(II)
International Responsibility for Domestic Adjudication 27
requirement, although possibly less stringent, for the special regimes
established by human rights treaties.116 The element of damage will, however,
arise at different times depending on the delict. In respect of forms of delictual
responsibility for acts and omissions relating to the exercise of enforcement
powers, such as for unlawful expropriation, or breach of the international
minimum standard or failure to accord full protection and security, the damage
occurs simultaneously with the misfeasance or nonfeasance in question. The
situation is different in respect of acts or omissions in the context of an adjudicative
procedure. An adjudicative procedure that fails to respect
the foreign national’s fundamental procedural rights causes damage to that
national when the substantive rights sought to be vindicated in that process
are finally denied.117 A first instance court decision cannot, therefore, generate
the predicate conduct for delictual responsibility towards a foreign national
in international law because at that point in the adjudicative process there
is no cognizable damage to that national or its interests produced by the
adjudicative process. The decision may be reversed on appeal and with
the result that the national’s substantive rights are vindicated. Another way of
putting the point is that international responsibility towards foreign nationals
for acts and omissions associated with an adjudicative procedure can only arise
at the point at which the adjudication has produced its final result; it is only at
that point that a constituent element of that responsibility has been satisfied,
which is the existence of damage to the foreign national.
It can be seen from this analysis that the finality rule for denial of justice
works in tandem with the requirement of damage as a constituent element of
delictual responsibility towards foreign nationals. Damage can only occur
when the adjudicative process reaches its final conclusion. The finality rule
places the onus on the foreign national to ensure that the adjudicative process
has reached its final conclusion.
With these initial observations in mind, the essence of the problem under
review can be revealed through a simple hypothetical. In an investment treaty
arbitration, can an investor elect not to seek the reversal of a first instance court
decision, which has failed to uphold its putative substantive rights, and claim
of US Model BIT; art 82(1) of 2002 Japan/Singapore FTA. There would be no requirement for
damage, however, in any State/State proceedings under the investment treaty.
116
Under art 34 of the ECHR the claimant must be the ‘victim of a violation . . . of one of the
rights set forth in [the] convention’. Klass v Germany, ECHR Case No 5029/71, Judgment of 6
September 1978, para 33 (‘Article [34] requires that an individual applicant should claim to have
been actually affected by the violation he alleges. Article [34] does not institute for individuals a
kind of actio popularis for the interpretation of the Convention; it does not permit individuals to
complain against a law in abstracto simply because they feel that it contravenes the Convention. In
principle, it does not suffice an individual applicant to claim that the mere existence of a law violate
his rights under the Convention; it is necessary to show that the law should have been applied to his
detriment.’)
117
See Part IV above linking procedural rights with substantive outcomes; Freeman (n 1) 269
(‘[t]he act of misconduct complained of must be such as to prejudice materially the alien’s defense
or espousal of his rights. only then will it amount to a denial of justice.’)
28 International and Comparative Law Quarterly
that, as a result of that decision becoming final and binding, it has suffered
damage, and that the host State should be liable to pay compensation for that
damage because the court decision amounts to an expropriation or some other
violation of the investment treaty? Can the investor avoid the application of the
finality rule in this way?
These questions must be answered in the negative if the integrity of domestic
adjudication is to be preserved. All national legal systems rely upon corrective
mechanisms to alleviate the risk of substantive error in adjudicative
procedures. All national legal systems accept by the very architecture of the
institutions created for adjudicative procedures that substantive errors do
routinely occur at the first level of the institutional hierarchy. Some national
legal systems even accept a greater risk of substantive error at the first level of
the hierarchy by design as a trade-off for securing more efficient and less costly
adjudicative procedures at that first level. This is generally the position in civil
law countries and the trade-off is perfectly legitimate because it is premised
upon a wider access to appellate procedures at the second level of the court
hierarchy than would be the case in common law systems, which generally
seek to achieve greater accuracy at the first level of the court hierarchy but with
the less efficiency and greater costs that entails. Civil law countries thus tend to
afford the right to a de novo appeal in respect of first-level judicial decisions, a
right which is far more circumscribed in common law countries.118 This
distribution of the risk of substantive error within the different levels of the
hierarchical system for the administration of justice is an ubiquitous feature of
every legal system and it must be respected by international law.119
These universal features of national adjudicative systems have traditionally
been acknowledged by international law through the finality rule and the
margin of appreciation afforded to domestic adjudicative decisions reflected in
the principle that mere substantive error cannot provide the predicate conduct
for a denial of justice. Delictual responsibility towards foreign nationals within
specialized regimes such as investment treaty arbitration must continue to be
shaped through deference to these universal features of national adjudicative
systems.
The conclusion must be that acts or omissions attributable to the State within
the context of a domestic adjudicative procedure can only supply the predicate
conduct for a denial of justice and not for any other form of delictual responsibility
towards foreign nationals. The national does not suffer damage
until its substantive rights have finally been denied as a result of the breach
of its procedural rights. This constituent element of the delict only occurs
when the domestic adjudicative procedure has reached is final conclusion
and the finality rule obliges the national to pursue the adjudicative procedure
to its final conclusion. To answer the hypothetical question: a claim for
118
MR Damaska, ‘Structures of Authority and Comparative Criminal Law’ (1975) 84
YaleJIntlL 480. 119
Eustathiades (n 2) 202.
International Responsibility for Domestic Adjudication 29
expropriation in respect of a first instance court decision is inadmissible. A
claim for denial of justice would have to be made through the medium of the
fair and equitable standard of treatment.
B. Can the Transgression of an International Legal Norm within the Context
of a Domestic Adjudicative Procedure Supply the Predicate Conduct
for Delictual Responsibility towards Foreign Nationals?
A decision of a national adjudicatory body that is simply inconsistent with a
rule or norm of international law does not, without more, entail the international
responsibility of the State in question. International responsibility is
contingent upon a breach of an international obligation of the State owed to
another State or States or indeed to the community of States. An obligation is
not the same as a rule or norm and for this reason the former term of art was
deliberately chosen over the latter by the International Law Commission during
the course of elaborating its Articles on State Responsibility.120 In explaining
the reference to an ‘obligation’ in Article 2 of those Articles, the Commission
notes: ‘[w]hat matters for these purposes is not simply the existence of a rule
but its application in the specific case to the responsible State’.121 The breach
of an international norm only has a delictual character in classical international
law if the norm constitutes an obligation on the part of a State towards another
State.122 By way of example, a national court may fail to apply a choice of law
rule prescribed in a treaty for the harmonization of private international law.
That failure is a breach of an international norm; but whether it is also a breach
of an international obligation to a particular State will require a separate
analysis.123
When we shift from classical international law as regulating relations
between States to modern international law which places specific demands
on domestic regulation, there is a further element requiring analysis: can
non-compliance with a particular international norm within the context of a
domestic adjudicative procedure form the predicate conduct for delictual
responsibility towards foreign nationals? As this question reveals, a link
between a breach of an international norm and delictual responsibility to an
120
R Ago, ‘Second Report on State Responsibility—The Origin of International Responsibility’
(1970) A/CN.4/233, II Yearbook of the ILC, para 45.
121
Commentary to art 2 in J Crawford, The International Law Commission’s Articles on State
Responsibility (CUP 2002) 85.
122
This appears to have been overlooked by Fitzmaurice (n 12) 110 (‘[I]t is generally admitted,
and there is ample authority for the view, that the judgments of municipal courts applying
international law will, if they misapply international law, ipso facto involve the responsibility of the
state (at any rate if acted upon) even though rendered in perfect good faith by an honest and
competent court’).
123
Suppose the court proceedings involved a national of a State not party to the treaty in which
the harmonized choice of law rule is prescribed. [Application of the Convention of 1902 Governing
the Guardianship of Infant (The Netherlands v Sweden), Judgment of 28 November 1958, (1958)
ICJ Rep 55, 64.]
30 International and Comparative Law Quarterly
individual must be established separately from the position that would pertain
as between States on the international plane.
This issue has arisen with recent frequency before international courts
and tribunals in respect of international norms for the recognition and enforcement
of foreign arbitral awards.124 In Frontier v Czech Republic,125 the foreign
arbitral award in question was rendered in favour of Frontier Petroleum in
a dispute with a Czech State-owned company (‘LET’) by an arbitral
tribunal with its seat in Stockholm. While those arbitration proceedings were
pending, LET was declared to be insolvent by the Czech courts. When Frontier
Petroleum later sought to enforce the award in the Czech Republic, and in
particular the orders directing the bankruptcy trustees to grant a first secured
charge against the assets of LET, the Czech courts refused by reference to the
public policy exception in Article V(2)(b) of the New York Convention on the
basis that such enforcement would be inconsistent with the Czech insolvency
regime requiring the equality of creditors and the equitable and orderly distribution
of assets. An international tribunal was constituted to determine whether
this refusal to enforce amounted to a breach of the fair and equitable standard
of treatment under the applicable investment treaty. That Tribunal formulated
the threshold of liability under that standard as follows: ‘whether the conclusion
reached by the Czech courts applied a plausible interpretation of the
public policy ground in Article V(2)(b) of the New York Convention’.126
It is generally accepted that no delictual responsibility towards foreign
nationals can arise from an ‘implausible interpretation’ of national law by
national courts. So what is special about Article V(2)(b) of the New York
Convention such that an implausible interpretation of that provision can,
without more, lead to delictual responsibility towards a foreign national through
a breach of the fair and equitable standard of treatment? This question was not
addressed in the Tribunal’s reasoning and yet it is surely the crux of the matter.
Is the public policy exception in Article V(2)(b) of the New York
Convention special simply because it is an international norm? Such an
argument is untenable and yet it appears to have been implicitly accepted by
the international tribunals that have considered the matter. It is untenable
because it fails to recognize the difference between a court decision that is
inconsistent with an international norm and a court decision that provides the
predicate conduct for delictual responsibility towards a foreign national under
124
In assessing this chaotic jurisprudence, it is first important to exclude those cases that are not
concerned with delictual responsibility in relation to domestic adjudicative processes as peripheral
to the specific problem under investigation. Once an arbitral award is final and binding and not
subject to further judicial review, it is a chose-in-action (intangible property) that is capable of
being expropriated by the exercise of the State’s enforcement powers. Thus, in accordance with the
thesis on the scope of denial of justice presented here, such cases would not fall to be considered as
denial of justice cases. This applies to Stran Greek Refineries (n 72), concerning legislation
rendering an arbitration award a nullity. 125
Frontier (n 69).
126
ibid para 527. In the next sentence that Tribunal elaborated: ‘put another way, was the
decision by the Czech courts reasonably tenable and made in good faith?’.
International Responsibility for Domestic Adjudication 31
international law. When a driver exceeds the speed limit and collides with
another vehicle and thereby injures a passenger in that other vehicle, the driver
has violated a legal norm contained in the rules of the road. But that violation
does not, ipso facto, conclude the matter in respect of the victim’s entitlement
to compensation. To get compensation, the victim has to establish the delictual
responsibility of the driver through the tort of negligence. The driver’s
violation of the rules of the road will no doubt be relevant to the question of
whether there was a breach of the standard of care, but it will not be dispositive
and it will also not discharge the victim’s burden of establishing the other
elements of negligence. In the context of the New York Convention, a national
court decision inconsistent with an international norm prescribed by that
convention may give rise to international responsibility on the part of the State
in question vis-à-vis the other State parties. But for the same national court
decision to give rise to delictual responsibility in international law to a foreign
national, inconsistency with a New York Convention norm is not sufficient.
The source of delictual responsibility in this instance is not the New York
Convention but instead the fair and equitable standard of treatment under the
investment treaty, which can be usefully compared to cause of action in tort in
domestic law.127
How, then, must an international tribunal approach a claim to the effect that a
domestic court decision, which is alleged to be inconsistent with an
international norm contained in the New York Convention, constitutes a
breach of the fair and equitable standard of treatment? The answer is that it
must be approached as a denial of justice claim. If the petitioner has been
finally denied a substantive right to the enforcement of a foreign arbitral award
by an adjudicative procedure that has failed to respect the petitioner’s
fundamental procedural rights, then delictual responsibility will be established.
The finality rule must apply. Delictual responsibility cannot result from a first
instance decision that fails to uphold the petitioner’s substantive right to the
enforcement of an award.
There is no valid distinction in respect of substantive outcomes resting upon
a domestic court’s interpretation of international norms and substantive
outcomes resting upon a domestic court’s interpretation of domestic norms.
When the cause of action at the international level is for delictual responsibility
to a foreign national, the focus of the inquiry at the international level cannot be
whether the domestic court arrived at a ‘plausible interpretation’ of an international
norm; instead the focus must be on whether the domestic court denied
the national’s substantive rights (whether their source is international law or
domestic law) in a manner that was violative of that national’s procedural
rights as protected by international law. This is not to say that a court decision,
independently of constituting a denial of justice, might also constitute an
127
Z Douglas, ‘The Enforcement of Environmental Norms in Investment Treaty Arbitration’ in
Dupuy and Viñuales (n 115) 418–24.
32 International and Comparative Law Quarterly
international wrong to another State by virtue of the court’s transgression of an
international norm. But the focus here is on a State’s delictual responsibility to
foreign nationals and the only route to such responsibility is through denial of
justice.
Any other approach would serve to vest international tribunals with
appellate jurisdiction over the substantive outcomes in domestic adjudicative
procedures. This can be demonstrated in Frontier by the Tribunal’s reasoning
directed to confirming the ‘plausibility’ of the decision of the Czech courts on
Article V(2)(b) of the New York Convention. First, the Tribunal noted that
national courts in other countries have reached similar decisions by invoking
the principle of the equality of creditors in insolvency proceedings to deny the
enforcement of a foreign arbitral award. Then the Tribunal continued:
In the present case, Claimant’s central claim was that it should receive preferential
treatment (a first secured charge) on the strength of the Stockholm Award. This
would have given it preference over other creditors who had participated and
complied with a broad scheme which ensured the equal treatment of creditors.
Inevitably, this would have worked to the detriment of the other creditors in the
bankruptcy proceedings. In fact, it would have defeated the right of all the other
creditors given the size of Claimant’s claim and the limited assets available. The
full enforcement of the Stockholm Award would have seriously affected the
position of the other creditors who had no part in the Stockholm proceedings and
had never consented to them. The Tribunal considers that this consideration helps
to support the point that the Czech courts’ interpretation of the notion of ‘public
policy’ under the New York Convention was not unreasonable or impossible.128
In this passage, the Tribunal provides (unimpeachable) reasons to agree with the
substantive outcome of the adjudicative process before the Czech courts as it
related to the interpretation of Article V(2)(b) of the New York Convention. It
is a passage that would have added sophistication to an appellate decision, save
perhaps for the final sentence in which the Tribunal, unsurprising in light of
what preceded, sought to disavow its role as an arbiter of substantive correctness.
But it is not a passage that is directed to the proper issues arising in the
adjudication of international delictual responsibiltity for the results of domestic
adjudication.
Foreign nationals do not have a general right to reparation for damage
caused when States to do not comply with their international obligations to
other States. The obligations to accord various minimum standards of treatment
to foreign nationals in general international law and investment treaties do
not operationalize such a general right. An exercise of enforcement power that is
inconsistent with an international norm may give rise to delictual responsibility
to a foreign national in different forms. But an exercise of adjudicative
power can only do so through the medium of a denial of justice. International
128
Frontier (n 69) para 530.
International Responsibility for Domestic Adjudication 33
norms enter the domestic adjudicative process through their judicial interpretation
and application to a set of facts. Some international tribunals, such as
the European Court of Human Rights, have the competence to adjudge the
correct interpretation or application of international norms by a domestic court.
They have thus been delegated the power to substitute their conception of the
most rational interpretation and application of those norms for that of the
domestic court. But no such right is conferred upon international tribunals with
competence to adjudge the delictual responsibility to foreign nationals that
might result from the domestic court’s decision. That is the position of tribunals
established by investments treaties and the Iran/US Claims Tribunal.
VI. DENIAL OF JUSTICE: A RESTATEMENT
The principal conclusions in this article will now be set out in the form of a
restatement of denial of justice.
1. The essential basis of a denial of justice is that a foreign national has
suffered a procedural injustice, according to the standards of international
law, in seeking to vindicate a substantive right within an adjudicative
procedure for which the State is responsible in international law.
2. The acts or omissions of the State must be an exercise of adjudicative power
rather than prescriptive or enforcement power.
3. The source of the substantive right can be domestic law or international law.
4. A denial of justice is not consummated until the foreign national’s
substantive right has been finally denied within the adjudicative procedure.
The onus is on the national to resort to all the available remedies afforded by
that adjudicative procedure provided that resort to such remedies would not
be futile.
5. A foreign national suffers a procedural injustice in seeking to vindicate a
substantive right if the adjudicative procedure does not attach an appropriate
level of importance to the risk of moral harm that could be inflicted upon the
national by an erroneous decision on the substantive right in question or if
the adjudicative procedure does not reflect a consistent weighting of the
importance of the moral harm as reflected in the State’s own evaluation of
moral harm embedded in the law as a whole.
6. Denial of justice is the sole form of international delictual responsibility
towards foreign nationals for acts or omissions within an adjudicative
procedure for which the State is responsible.
7. A decision produced by an adjudicative procedure for which the State is
responsible is not a denial of justice merely because it is inconsistent with
an international norm binding upon the State. International delictual responsibility
to foreign nationals is not the same as international responsibility
towards States for the violation of the treaty establishing the international
norm.
34 International and Comparative Law Quarterly