䉷 EJIL 2003

.............................................................................................
Book Reviews
Shany, Yuval. The Competing theoretical possibility. This raises the
Jurisdictions of International Courts question: How should such difficulties be
and Tribunals. Oxford: Oxford resolved?
This question is one which Yuval Shany,
University Press, 2003. Pp. i-lxix, 348.
from the Division of Academic Studies of the
£60.00 hardback. ISBN 0–19-
College of Management (Israel), strives to
925857–0.
answer in The Competing Jurisdictions of Inter-
Recent years have witnessed the establish- national Courts and Tribunals. This volume is
ment of multiple fora for the settlement of an edited version of his PhD dissertation, and
international disputes, a process which is this volume is the first in OUP’s new series on
referred to as the ‘proliferation of inter- international courts and tribunals, which is
national courts and tribunals’. Two intercon- being developed in cooperation with the Pro-
nected problems result from this ject on International Courts and Tribunals
‘proliferation’: first, different international (PICT). This is a significant contribution as it is
courts and tribunals may apply individual the first major work to consider the appli-
interpretations of substantive rules of inter- cation in public international law of doctrines
national law, thus producing inconsistent developed and applied traditionally as part of
jurisprudence; and second, the proliferation private international law, such as forum non
can result in the creation of overlapping or conveniens, lis alibi pendens, res judicata, and
competing jurisdictions between such bodies, electa una via. The goal of Dr Shany’s book is to
leading to the possibility of ‘forum shopping’
seek out possible methods of regulating the
in international law. This latter problem of
problem of competing jurisdictions in inter-
competing jurisdictions has recently arisen in
national law. He has chosen to pursue that
the context of several interstate disputes.
goal by focusing on three questions. These are
These include, notably, the Southern Bluefin
whether there are any rules of international
Tuna dispute, which could have been deter-
law that regulate instances of (i) multiple
mined either by the International Court of
Justice (ICJ), or by tribunals established under available fora; (ii) parallel proceedings; and
the United Nations Convention on the Law of (iii) successive proceedings (p. 17). The issue
the Sea (UNCLOS), and the Swordfish dispute, of multiple fora is crucial because of the
which was submitted simultaneously to both problems of coordination that can arise when
the International Tribunal for the Law of the international disputes can be referred to more
Sea (ITLOS) and a dispute settlement panel of than one body: Is it clear, for instance, that the
the World Trade Organization (WTO). In Swordfish dispute (which has been suspended
addition, an UNCLOS tribunal has recently as a result of an interim settlement agree-
suspended hearings in the ongoing MOX Plant ment) would have been decided in the same
case between Ireland and the UK, due to the way by the ITLOS and the WTO? Might one
real possibility of proceedings being instituted body have put more emphasis on the environ-
against Ireland before the European Court of mental protection aspects of the case, and
Justice (ECJ) for an alleged breach of Article would the other have stressed the importance
292 of the EC Treaty. The problems of jurisdic- of compliance with obligations under the
tional overlap which arise as a result of GATT? If two international courts and tri-
proliferation are therefore more than a merely bunals are legitimately seised of a dispute, and

..............................................................................................................................................................
EJIL (2003), Vol. 14 No. 5, 1045–1056
1046 EJIL 14 (2003), 1045–1056

yet reach different decisions, is one to be national agreements, and observes that that
preferred over the other? there are, in fact, several ‘inflexible’ exclusive
Any discussion of the presence of jurisdic- jurisdiction provisions, such as Article 292 of
tion-regulating norms in international law the EC Treaty, which has come to the fore in
invites consideration of whether there is an the MOX Plant case, and Article 23 of the
‘international legal system’ and a ‘system’ of Dispute Settlement Understanding (DSU) (pp.
international courts and tribunals. One way 180–186). There are other ‘flexible’ arrange-
of approaching this issue might be to ask first ments, which permit states to agree to submit
whether there are any jurisdiction-regulating disputes to different fora, such as Article 55 of
rules in international law, and to determine the European Convention on Human Rights,
whether these are adequate. Such an and Article 26 of the International Centre for
approach would have the advantage of show- Settlement of Investment Disputes (ICSID)
ing the extent of the systematization of inter- Convention (pp 188–195). The focus then
national courts and tribunals and the shifts to the problem of regulating multiple
conclusions would then shed light on the proceedings, and Shany identifies three prin-
nature, or indeed the existence, of the inter- ciples which have found expression in the
national legal (and judicial) system. It would constitutive instruments of international
also inform the selection of rules which could courts and tribunals: these are the maxims
be proposed to improve the regulation of electa una via (pp. 213–217), lis alibi pendens
overlapping jurisdictions. However, this is not (pp. 218–223), and the principle of finality
the approach adopted by Shany. He begins, (pp. 223–226).
rather, by examining the existence of an But in the absence of express provision in
international legal system by reference to the relevant constitutive instruments, can it
philosophical discussions of the nature of legal be said that these forum-regulating principles
systems generally. Having concluded that are rules of customary international law or
international law should be regarded as a general principles of law? After a thorough
legal system (p. 94), but that there is no trawl through international case law, the
system of international courts and tribunals answer is somewhat disappointing, at least for
like that found in municipal legal systems (p. those who might hope that the rules of private
114), this allows him then to evaluate the international law might somehow magically
jurisdiction-regulating rules that might more be transposed to the international sphere:
appropriately be applied in international law. Shany concedes that the rule electa una via
While it may be considered problematic to cannot be found to have been applied in
begin with what in a sense one has set out to international jurisprudence (p. 229), and he
prove, this is an approach that serves its concludes, almost regretfully, that ‘the case
purpose well. law on the allocation of jurisdiction between
Before considering whether or not inter- competing international courts and tribunals
national law contains competition-regulating is too sporadic and inconsistent to enable one
norms, Shany conducts a thorough review of to draw definite conclusions of general appli-
the presence of such norms in domestic legal cability’ of the other forum-regulating rules
systems, such as forum non conveniens and the found in private international law (p. 239).
rules which control parallel proceedings. This With respect to the principle of litispendence,
discussion is useful, as it shows that even in the situation is just as inconclusive (pp.
the realm of private international law, juris- 240–241), although the reverse is true of res
diction-regulating rules are not uniform. This judicata, which is well established as a rule of
then leads into the real issue: Are there any international law (p. 245).
similar rules of international law which regu- What other solutions are there? Shany
late jurisdictional overlap between inter- reviews suggestions which have previously
national courts and tribunals? Shany first been made, such as expanding the jurisdiction
turns to forum selection provisions in inter- of the ICJ to hear appeals from other inter-
 Book Reviews 1047

national courts, or endowing it with a form of Yuval Shany’s book offers an excellent expo-
preliminary reference jurisdiction (such as sition of how these issues have been dealt with
that exercised by the ECJ with respect to by a wide range of international courts and
national courts). He also adds a suggestion tribunals. In making proposals to mitigate the
that the ICJ could potentially act as an arbiter problem of jurisdictional competition, his
in cases of jurisdictional competition. How- work is valuable both as a practical tool for
ever, Shany concedes that such reform is those faced with such dilemmas, and also as
unlikely to be agreed. Another proposal is for an aid to a better theoretical understanding of
states to review their acceptances of the the emerging international judicial system.
jurisdiction of international courts and tri- St John’s College, Chester Brown
bunals, in order to minimize jurisdictional University of Cambridge
competition. This is unrealistic, as states will
generally want to ensure that they are free to
submit disputes to the most favourable forum
available, and this assessment can usually be
made on a case-by-case basis only. More
promising, however, is the use of the principle
of comity: this has, indeed, been employed by
an ICSID tribunal in the Pyramids case to
suspend the exercise of its jurisdiction pending
the conclusion of a case before the French
Cour de cassation, and also by the UNCLOS
Tribunal in the MOX Plant case. Shany argues
that the exercise of judicial comity and infor-
mation exchange between courts is the most
realistic solution, and this recent experience
indicates that he is right. In light of the
increasing frequency of jurisdictional clashes,
however, one senses that the development of
other solutions, including those proposed by
the author, cannot be ruled out: the accept-
ance of the principle of res judicata, for
instance, suggests that rules of private inter-
national law are not altogether out of place in
public international law.
This book represents an impressive contri-
bution to the study of the relationship be-
tween different international regimes and
international adjudicatory bodies. It is also an
ideal companion volume to PICT’s Manual on
International Courts and Tribunals, which
Shany co-edited with Professor Philippe Sands
and Ruth Mackenzie. Given the rising tend-
ency on the part of states to submit disputes to
third-party adjudication, and the increased
availability of international dispute settlement
bodies with compulsory jurisdiction, there is
more likelihood today of jurisdictional overlap
between international dispute settlement
bodies than has previously been the case.