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Judicial Economy and Limitation of the Scope of the Decision in International Adjudication

Published online by Cambridge University Press:  22 November 2010

FULVIO MARIA PALOMBINO
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Abstract

This article argues that the principle of judicial economy belongs to the fundamental canons of international procedure – that is, those canons which are inherent in the judicial function and whose application should generally be ensured by the judge concerned, regardless of what the written procedural law establishes. This is particularly evident if one considers how often international courts and tribunals, precisely for reasons of judicial economy and departing from the duty to decide all points put forward by the parties (non ultra petita), enter into those issues alone which are necessary for the purpose of resolving the dispute and/or establishing the true state of the world (the so-called criterion of judicial limitation of the scope of the decision or absorption). Even though no provision requires it, each judge is in fact expected to operate in conformity with this criterion and to use it in a proper way; its misapplication may lead to reforming the decision or precluding its enforcement. The frequent use of the criterion at issue, on the other hand, supports this article's final contention, according to which judicial economy is an expression of judicial activism.

Keywords

function of international adjudicationjudicial activismjudicial economyjudicial limitation of the scope of the decision
Type
CURRENT LEGAL DEVELOPMENTS
Information
Leiden Journal of International Law , Volume 23 , Issue 4 , December 2010 , pp. 909 - 932
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2010

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References

1 In the domestic context, the meaning of the term ‘judicial economy’ refers in particular to the efficient use of limited judicial resources. See, for example, the definition in Black's Law Dictionary (2004), at 863: ‘Efficiency in the operation of the courts and the judicial system; esp., the efficient management of litigation so as to minimize duplication of effort and to avoid wasting the judiciary's time and resources’. As far as an international tribunal is concerned, however, such a definition is not always valid, since an arbitral tribunal, for example, charged with the resolution of a single dispute, is not concerned with competition for its ‘resources’. Therefore, at least at international level, the definition which has been used in the text (i.e. one which refers to economizing in the use of powers, rather than of ‘resources’) is to be preferred.

2 G. Raimondi, ‘Article 35, paras. 2–3’, in S. Bartole, B. Conforti, and G. Raimondi (eds.), Commentario alla Convenzione europea per la tutela dei diritti dell'uomo e delle libertà fondamentali (2001), 616, at 619.

3 J. Bohanes and A. Sennekamp, ‘Reflections on the Concept of ‘Judicial Economy’ in WTO Dispute Settlement’, in G. Sacerdoti, A. Yanovich, and J. Bohanes (eds.), The WTO at Ten: The Contribution of the Dispute Settlement System (2006), 424, at 448.

4 As to the International Court of Justice, see for example the opinion of S. Rosenne, The Law and Practice of the International Court 1920–2005 (2006), III, 1024 (‘In the same way that no arbitration or judicial settlement of a concrete dispute is possible without the consent of the parties, so, ultimately, does their consent establish the procedure by which that dispute is to be decided’).

5 See V. S. Mani, International Adjudication: Procedural Aspects (1980), 12 (according to whom, ‘[w]hile observing the provisions of the instrument – which is the basic law for the tribunal – the tribunal is also expected to conform its operations to the basic procedural norms. Accordingly, the fundamental procedural norms, whether or not expressly provided for, comprise certain fundamental rules of procedure, which are inherent in the judicial process, and generally recognized in all procedures’). In the same sense see R. B. Schlesinger, ‘Research on the General Principles of Law Recognized by Civilized Nations’, (1957) 51 AJIL 734, at 736; C. De Visscher, ‘Cours général de droit international public’, (1972/II) 136 RCADI 1, at 1; K. J. Keith, The Extent of the Advisory Jurisdiction of the International Court of Justice (1974), 154; B. Cheng, General Principles of Law (1987), part IV, at 257 and passim; S. Negri, I principi generali del processo internazionale nella giurisprudenza della Corte internazionale di giustizia (2002), 32; C. Brown, A Common Law of International Adjudication (2007), passim.

6 We refer especially to the view of Keith, supra note 5, at 154. According to this author, in particular, the progressive emergence of custom provisions relating to procedure would directly depend on the adoption of the Statute of the International Court of Justice: ‘the Statute of the Court establishes, . . . in the provisions relating to procedure in contentious cases, a set of rules and standards which, one can assume from the almost complete acceptance of the Statute of the Court, are generally considered as constituting an international judicial procedure’. See also L. Ferrari Bravo, La prova nel processo internazionale (1958), at 10.

7 De Visscher, supra note 5; Cheng, supra note 5; Negri, supra note 5; Brown, supra note 5.

8 In this respect, a significant example is the tendency of international tribunals to apply, in one way or other, the principle of judicial economy, despite the absence of statutory provisions imposing its observance. In this regard see infra.

9 See, for instance, Schlesinger, supra note 5, at 736 n. 10; Cheng, supra note 5, passim.

10 See inter alia Raz, J., Legal Principles and the Limits of Law, (1971–2) 81 Yale Law Journal 823CrossRefGoogle Scholar; R. Dworkin, Taking Rights Seriously (1978), 20, 90; R. Alexy, Theorie des Grundrechte (1985), 71; G. Zagrebelsky, Il diritto mite (1992), 147; Huerta, C., ‘The Notion of Principle in “Legal Reasoning” as Understood in Mexican Law’, (2010) 2 Mexican Law Review 1Google Scholar; G. Pino, Diritti e interpretazione, Il ragionamento giuridico nello Stato costituzionale (2010), 51.

11 See inter alia Mitchell, A. D., ‘The Legal Basis for Using Principles in WTO Disputes’, (2007) 10 Journal of International Economic Law 795, at 797CrossRefGoogle Scholar; Iovane, M., ‘Judicial Decisions’, (2008) 18 Italian Yearbook of International Law 325, at 329Google Scholar.

12 Rosenne, supra note 4, at 576.

13 This expression is due to Iovane, supra note 11, at 329.

14 D. Brügemann, Judex statutor und Judex investigator (1968), 101.

15 In this respect, the principle of equality of parties represents a further example (see A. Del Vecchio, Le parti nel processo internazionale (1975), 173; Negri, supra note 5, at 117; M. Pedrazzi, ‘Uguaglianza delle parti e contraddittorio nel processo internazionale’, in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz (2004), II, 1129). This principle implies the right of either party at all stages of the proceeding to an equal opportunity to be heard and to present evidence, but ‘[i]l est impossible de prévoir toutes [ses] modalités d'application’ (it is impossible to codify all its modalities of application). This opinion was expressed by G. Scelle in the Report on Arbitral Procedure, submitted before the International Law Commission on 21 March 1950, UN Doc. A/CN.4/18, in Yearbook of the International Law Commission (1950), II, 114 ff., esp. 133), precisely because it is a directive which guides every judge's activity – A. P. Sereni, Principi generali di diritto e processo internazionale (1955), 68.

16 See infra note 102.

17 Particular attention has been paid to the WTO dispute resolution system. In this regard, see infra.

18 This expression is due to H. Lauterpacht, The Development of International Law by the International Court (1958), 77.

19 Rosenne, supra note 4, at 576.

20 L. Comoglio, Il principio di economia processuale (1980), I, 190. Naturally, we do not refer here to the merely procedural prejudicial issues (or preliminary issues, according to the terminology used by G. Morelli, ‘Eccezioni preliminari di merito?’, (1975) Rivista di diritto internazionale 5; Morelli, ‘Questioni preliminari nel processo internazionale’, (1971) Rivista di diritto internazionale 5), in other words those procedural issues ‘which do not concern the merits, and which therefore come before the merits’. In this case, the prior decision of the prejudicial issue is required by the trial dynamic itself, rather than the principle of judicial economy.

21 This criterion is used by judges of both the civil law and the common law tradition. As to civil law systems, see Comoglio, supra note 20, at 192, 215; M. Fornaciari, Presupposti processuali e giudizio di merito. L'ordine di esame delle questioni nel processo (1996), 62; G. Verde, Profili del processo civile (2008), II, Part 1, 143. As to common law systems, the US Supreme Court decision in the case of Marbury v. Madison of 1803 is quite significant (see G. L. Haskins, History of the Supreme Court of the United States (1981), II, Part 1, 184).

22 Alvarez-Jiménez, A., ‘The WTO Appellate Body's Exercise of Judicial Economy’, (2009) 12 Journal of International Economic Law 1, at 14CrossRefGoogle Scholar. On judicial economy as an issue-avoidance technique see also Davey, W. J., ‘Has the WTO Dispute Settlement System Exceeded Its Authority? A Consideration of Deference Shown by the System to Member Government Decisions and Its Use of Issue-Avoidance Techniques’, (2001) 4 Journal of International Economic Law 79, at 108CrossRefGoogle Scholar.

23 Lighthouses (France v. Greece), PCIJ Rep. 2813, Series A/B No. 62, at 3.

24 ‘The Court does not think it necessary to express its opinion on this point.’ Ibid., at 25.

25 Right of Passage over Indian Territory (Portugal v. India), Merits, Judgment of 12 April 1960, [1960] ICJ Rep. 6, at 43. As regards this point, a more recent example can be found in Gabĉîkovo/Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, [1997] ICJ Rep. 7, at 71. On the judicial limitation of the scope of the decision in the case law of the International Court of Justice see Lauterpacht, supra note 18, at 77; A. Zanobetti Pagnetti, La non comparizione davanti alla Corte internazionale di giustizia (1996), 167; H. Thirlway, ‘Judicial Activism and the International Court of Justice’, in N. Ando et al. (eds.), Liber Amicorum Judge Shigeru Oda (2002), 75, at 85; A. Orakhelashvili, ‘The International Court of Justice and “Its Freedom to Select the Ground upon Which It Will Be Based”’, (2007) 56 ICLQ 171; G. Cahin, ‘La motivation des décisions de la Cour internationale de justice’, in H. R. Fabri and J. M. Sorel (eds.), La motivation des décisions des jurisdictions internationals (2008), 9, at 68.

26 Norwegian Loans (France v. Norway), Judgment of 6 July 1957, [1957] ICJ Rep. 25.

27 Rights of the Nationals of the United States of America (France v. United States), Judgment of 27 August 1952, [1952] ICJ Rep. 176.

28 Ibid., at 186.

29 For instance, in the decision of 14 May 1980 in the case concerning the Consular and Diplomatic Staff in Teheran, once a basis was found for the exercise of its jurisdiction in Art. 1 of the Protocols to the Vienna Conventions on Diplomatic (1961) and Consular (1963) Relations and the Treaty of Amity between the United States and Iran (1955), the Court did not find it necessary to enter into the question whether Art. 13 of the Convention of 1973 on the Prevention and Punishment of Crimes against Internationally Protected Persons provided a further basis (United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment of 14 May 1980, [1980] ICJ Rep. 3, at 28); in the eight proceedings brought by Serbia and Montenegro and concerning the legality of the use of force by several Western countries against the former Yugoslavia, the Court maintained that it lacked jurisdiction (since at the time of the institution of these proceedings, Serbia and Montenegro did not have access to the Court according to Art. 35(1) and (2) of the Statute), and consequently deemed it ‘unnecessary to consider the other preliminary objections filed by the Respondents’ (Legality of the Use of the Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment of 15 December 2004, [2004] ICJ Rep. 279, at 327; Legality of the Use of the Force (Serbia and Montenegro v. Canada), Preliminary Objections, Judgment of 15 December 2004, [2004] ICJ Rep. 429, at 619; Legality of the Use of the Force (Serbia and Montenegro v. France), Preliminary Objections, Judgment of 15 December 2004, [2004] ICJ Rep. 575, at 619; Legality of the Use of the Force (Serbia and Montenegro v. Germany), Preliminary Objections, Judgment of 15 December 2004, [2004] ICJ Rep. 720, at 764; Legality of the Use of the Force (Serbia and Montenegro v. Italy), Preliminary Objections, Judgment of 15 December 2004, [2004] ICJ Rep. 865, at 910; Legality of the Use of the Force (Serbia and Montenegro v. Holland), Preliminary Objections, Judgment of 15 December 2004, [2004] ICJ Rep. 1011, at 1059; Legality of the Use of the Force (Serbia and Montenegro v. Portugal), Preliminary Objections, Judgment of 15 December 2004, [2004] ICJ Rep.1160, at 1206; Legality of the Use of the Force (Serbia and Montenegro v. United Kingdom), Preliminary Objections, Judgment of 15 December 2004, [2004] ICJ Rep. 1307, at 1351).

30 In the Diallo case, the Court, having concluded that ‘Guinea is without standing to offer Mr Diallo diplomatic protection as regards the alleged unlawful acts of the DRC against the rights of the companies Africom-Zaire and Africontainers-Zaire, . . . need not further consider the DRC's objection based on the non-exhaustion of local remedies’. Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of Congo), Preliminary Objections, Judgment of 24 May 2007, para. 95 (not yet published).

31 C. Curti Gialdino, I vizi dell'atto nel giudizio davanti alla Corte di giustizia dell'Unione Europea (2008), 207.

32 C-267/94, [1994] ECR 1, at 4845.

33 C-309/89, [1989] ECR 1, at 1853.

34 T-79 and 80/95, [1995] ECR 2, at 1491.

35 D. Ritleng, ‘Le contrôle de la légalité des actes communautaires par la Cour de justice et le Tribunal de première instance des Communautés européennes’, Ph.D. thesis, Strasbourg III, 1988, 314.

36 Curti Gialdino, supra note 31, at 208.

37 J. G. Merrills, The Development of International Law by the European Court of Human Rights (1995), 37. On the use of this criterion in the jurisprudence of the European Court of Human Rights see also G. Bartolini, La riparazione per violazione dei diritti umani e ordinamento internazionale (2009), at 571.

38 Pakelli v. Germany, Judgment of 25 April 1983, [1983] ECHR (Ser. A).

39 Ibid., at 15 (emphasis added). Absorption for reasons of judicial economy must not be confused with ‘consumption’ – or criterion of the ‘lesser included offence’ – which is rather a principle of criminal law used by the Strasburg Court with regard to the application of Art. 3 of the European Convention. Art. 3, as is well known, states that no one shall be subjected to torture, inhuman treatment or punishment, or degrading treatment or punishment. These three provisions have never been applied cumulatively, because the various norms under Art. 3 all pursue the same goal and safeguard the same basic values, even though torture is a more serious breach than the other two. Consequently, according to the Court, if the facts disputed in a certain case amount to torture, it is not necessary to examine the applicant's complaints of other forms of ill-treatment (Aksoy v. Turkey, Judgment of 18 December 1996, [1996] ECHR, at 64). On the legal doctrine see Palombino, F. M., ‘The Overlapping of War Crimes and Crimes against Humanity in International Criminal Law’, (2002) 12 Italian Yearbook of International Law 123, at 131 n. 24Google Scholar.

40 Merrills, supra note 37, at 36.

41 This law has been published in Gazzetta Ufficiale No. 177 of 1 August 2005.

42 Saadi v. Italy, Judgment of 22 February 2008, [2008] ECHR. For a comment on this judgment see A. Gianelli, ‘Il carattere assoluto dell'obbligo di non-refoulement: la sentenza Saadi della Corte europea dei diritti dell'uomo’, 2008 Rivista di diritto internazionale 449; F. De Londras, ‘Saadi v. Italy: App. No. 37201/06: European Court of Human Rights Judgment on Deportations of Individuals Outside the Protective Zone of the European Convention on Human Rights. Article 3: European Court of Human Rights (Grand Chamber), February 28’, (2008) 102 AJIL 610; Carlier, J.-Y., ‘L'accès au territoire et la détention de l'étranger demandeur d'asile’, (2009) 79 Revue trimestrielle des droits de l'homme 795Google Scholar.

43 Airey v. Ireland, Judgment of 9 October 1979, [1979] ECHR (Ser. A), at 35 (emphasis added).

44 This rule states that in cases referred to the Court by the former European Commission, in accordance with the provisions applicable prior to the entry into force of Protocol No. 11 to the Convention, a panel of the Grand Chamber shall determine whether a chamber or the Grand Chamber itself is to decide the case.

45 Kudla v. Poland, Judgment of 26 October 2000, [2000] ECHR, at 33 (emphasis added). In the legal doctrine, see Sinkondo, M., ‘Le fabuleux destin de l'article 13 de la CEDH et ses suites heureuses pour les garanties individuelles’, (2005) 81 Revue de droit international et de droit comparé 367Google Scholar; Bartolini, supra note 37, at 571.

46 Tibi v. Ecuador, Judgment of 7 September 2004, at 120.

47 G. Spangher (ed.), Trattato di procedura penale (2009), at 335.

48 As observed by the ICTY, ‘judicial economy has been held as one of the procedural legal principles of the International Tribunal in Arts. 20(1) and 21(4)(c), i.e. the right of the Accused to an expeditious trial and the right to be tried without undue delay’ (Prosecutor v. Momcilo Krajisnik, Decision on the Prosecution Motions for Judicial Notice of Adjudicated Facts and for Admission of Written Statements of Witnesses Pursuant to Rule 92 bis, Case No. IT-00–39-PT, T. Ch. I., 10 March 2003 (emphasis in original)).

49 Prosecutor v. Karemera, Ngirumpatse et Nzirorera, Decision on Joseph Nzirorera's Motion for Judicial Notice of Adjudicated Facts: Bagasora Judgement, Case No. ICTR-98–44-T, T. Ch. III., 20 May 2009.

50 Ibid., para. 5.

51 Prosecutor v. Mucić, Delić, and Landžo, Case No. IT-96–21-Abis, A. Ch., 8 April 2003. For a comment on this judgment see F. M. Palombino, ‘Il potere inerente di riesame dei tribunali internazionali: in margine al caso Celebici’, (2004) La Comunità Internazionale 707.

52 Prosecutor v. Delalić et al., Case No. IT-96–21, A. Ch., 20 February 2001.

53 Prosecutor v. Kupreškić Case No. IT-95–16, A. Ch., 30 October 2001, para. 30.

54 Prosecutor v. Mucić, Delić, and Landžo, supra note 51.

55 On this point see M. Distefano, Soluzione delle controversie nell'Omc e diritto internazionale (2001), 45; J. Waincymer, WTO Litigation: Procedural Aspects of Formal Dispute Settlement (2002), 367, 701; Bohanes and Sennekamp, supra note 3, at 424; H. R. Fabri, ‘La motivation des décisions dans le règlement des différends de l'Omc’, in Fabri and Sorel, supra note 25, 103, at 129; Alvarez-Jiménez, supra note 22; Busch, M. L. and Pelc, K. J., ‘The Politics of Judicial Economy at the World Trade Organization’, (2010) 64 International Organization 257CrossRefGoogle Scholar.

56 WT/DS33/AB/R, report adopted on 23 May 1997, 18.

57 Ibid., 19.

58 The Article at issue reads as follows: ‘The dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system. The Members recognize that it serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law. Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements.’

59 ‘Given the explicit aim of dispute settlement that permeates the DSU, we do not consider that Article 3.2 of the DSU is meant to encourage either panels or the Appellate Body to “make law” by clarifying existing provisions of the WTO Agreement outside the context of resolving a particular dispute.’ United States – Wool Shirts and Blouses, supra note 56.

60 The principle of judicial economy has to be applied keeping in mind the aim of the dispute settlement system. This aim is to resolve the matter at issue and ‘to secure a positive solution to a dispute’. A panel has to address those claims on which a finding is necessary in order to enable the DSB to make sufficiently precise recommendations and rulings to allow for prompt compliance by a member with those recommendations and rulings ‘in order to ensure effective resolution of disputes to the benefit of all Members’ (adopted on 6 November 1998, AB-1998-VIII, WT/DS18, 66 (emphasis added)).

61 In his view, resorting to such a criterion on the one hand is contrary to a literal interpretation of Art. 17(12) of the Understanding, while on the other hand it ‘could be supported by the general principles in Articles 3.4 and 3.7 of the DSU alluded by the Appellate Body in Australia – Salmon and its express powers in Art. 17.13. That calls for recommendations or rulings made by the DSB to be aimed at achieving a satisfactory settlement of the matter. Because the Appellate Body may uphold, modify or reverse the legal findings and conclusions of the Panel, it is arguable that if a particular claim allows it to reverse the findings, other issues need not be considered’ (Waincymer, supra note 55, at 702).

62 This conclusion can be drawn from the decisions in the cases of US – Gambling and European Communities – Selected Customs Matters. The first decision reads as follows: ‘We note that the United States also advances an appeal under Article 11 of the DSU in relation to the Panel's assessment of Antigua's prima facie case. The United States argues that the Panel failed to comply with its obligations under Article 11 of the DSU, not merely because it made an error in finding a prima facie case, but because of “the egregious nature of the departure by the third Panel from its assigned role of objective arbitrator”. We have already found error in the Panel's examination of the aforementioned state laws on the basis that Antigua had not made a prima facie case of inconsistency with Article XVI:2. Therefore, in order to resolve this dispute, we need not determine whether, in assessing Antigua's prima facie case, the Panel also failed to satisfy its obligations under Article 11 of the DSU’ (Appellate Report United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, adopted on 20 April 2005, AB-2005–1, WT/DS285/13, 50 (emphasis in original)). In similar terms, the 2006 decision establishes that ‘The European Communities also claims that the Panel's findings regarding the administrative process leading to the tariff classification of blackout drapery lining were not based on an objective assessment of the facts as required by Article 11 of the DSU. As we concluded that the Panel erred in finding a violation of Article X:3(a) of the GATT 1994 with respect to the tariff classification of blackout drapery lining, we do not consider it necessary, for purposes of resolving this dispute, to rule on whether the Panel's findings regarding the administrative process in question were based on an objective assessment of the facts, as required by Article 11 of the DSU’ (Appellate Report European Communities – Selected Customs Matters, adopted on 13 November 2006, AB-2006–4, WT/DS315, 93).

63 Supra note 62.

64 US Code Collection, para. 3001.

65 The decision in particular reads as follows: ‘. . . The United States requests us to complete the analysis and find that the Wire Act, the Travel Act, and the IGBA are “necessary”, within the meaning of Article XIV (c), to secure compliance with the RICO statute. We found in the previous section of this Report that the Wire Act, the Travel Act, and the IGBA fall under paragraph (a) of Article XIV. As a result, it is not necessary for us to determine whether these measures are also justified under paragraph (c) of Article XIV’. Supra note 62, at 111 (emphasis added).

66 Lauterpacht, supra note 18, at 77.

67 See the literature cited supra note 25.

68 ‘The scope of the present phase of the proceedings was defined by the Court's Order of 22 June 1973, by which the Parties were called upon to argue, in the first instance, questions of the jurisdiction of the Court and the admissibility of the Application. For this reason, as already indicated, not only the Parties but also the Court itself must refrain from entering into the merits of the claim. However, while examining these questions of a preliminary character, the Court is entitled, and in some circumstances, may be required, to go into other questions which may not be strictly capable of classification as matters of jurisdiction or admissibility but are of such a nature as to require examination in priority to those matters’, at 463.

69 In this regard Alvarez-Jiménez (supra note 22, at 17) observes that ‘[t]he way the ICJ disposed of this case provides strong evidence of its reluctance to adjudicate and narrowed the scope of the dispute . . .To achieve this result, the Court inverted the order of analysis . . . and instead of assessing its jurisdiction, as would be the normal step at this stage of the proceedings, it decided to assess first whether there was a dispute between the parties in light of the French decision to suspend such tests in the near future.’

70 Aegean Sea Continental Shelf (Greece v. Turkey), Jurisdiction, Judgment of 19 December 1978, [1978] ICJ Rep. 3, at 17. In the case in hand, the Court expressly pointed out the strategic reasons underpinning the inversion of the order of analysis, stating that ‘although under Article 59 of the Statute “the decision of the Court has no binding force except between the parties and in respect of that particular case”, it is evident that any pronouncement of the Court as to the status of the 1928 Act, whether it were found to be a convention in force or to be no longer in force, may have implications in the relation between States other than Greece and Turkey’ (ibid., at 16).

71 Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction, Judgment of 21 June 2000, [2000] ICJ Rep. 12, at 24.

72 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment of 14 February 2002, [2002] ICJ Rep. 3, para. 91.

73 The judgment, in particular, reads as follows: ‘As a matter of logic [The Court underscores], the second ground should be addressed only once there has been a determination in respect of the first, since it is only where a State has jurisdiction under international law in relation to a particular matter that there can be any question of immunities in regard to the exercise of that jurisdiction. However, in the present case, ..the Court will address first the question whether, assuming that it had jurisdiction under international law to issue and circulate the arrest warrant of 11 April 2000, Belgium in so doing violated the immunities of the then Minister for Foreign Affairs of the Congo’ (supra note 71, at 19).

74 Alvarez-Jiménez, supra note 22, at 16.

75 As observed in the legal doctrine, ‘[t]his approach has arguably impacted on the correctness of the outcome in the case because the issue of universal jurisdiction, if considered in the case, could influence the Court's finding on immunities’ (Orakhelashvili, supra note 25, at 178). The same circumstance has been highlighted by other scholars of international law (e.g. H. R. Fabri and J.-M. Sorel, ‘Cronique de jurisprudence de la Cour Internationale de Justice’, (2003) 130 Journal du droit international 855, at 863, who maintain that the Court did not want ‘faire ouvrir la boîte de Pandore que pourrait bien être la premier’ (‘to run the risk of opening the Pandora's box that the first issue could be’; A. Cassese, ‘When may Senior State Officials Be Tried for International Crimes?’, (2002) 13 EJIL 853, at 855; S. Zappalà, ‘La sentenza della Corte internazionale di giustizia nel caso Congo c. Belgio in tema di immunità dalla giurisdizione del Ministro degli esteri’, (2002) Diritto pubblico comparato europeo 1711, at 1714), and some judges of the Court, in the separate opinions appended to the judgment.

76 ITLOS, M/V ‘Saiga’ (No. 2) (Saint Vincent and the Grenadines v. Guinea), Judgment, 1 July 1999 (hereinafter M/V ‘Saiga’ (No. 2)). On this judgment see L. De La Fayette, ‘International Tribunal for the Law of the Sea: The M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea)’, (2000) 49 ICLQ 467; Mahinga, J.-G., ‘Les affaires du M/V Saiga devant le Tribunal international du droit de la mer’, (2000) 140 Revue générale de droit international public 695 ff.Google Scholar; B. H. Oxman, ‘The M/V ‘Saiga’ (No. 2) (Saint Vincent and the Grenadines v. Guinea), Judgment (ITLOS Case No. 2)’, (2000) 92 AJIL 140.

77 M/V ‘Saiga’ (No. 2), supra note 76, at 127. On the other arguments raised by the defendant and reversed by the Tribunal see ibid., at 129.

78 In particular, para. 138 of the judgment reads as follows: ‘The Tribunal considers that the issue that needed to be decided was whether the actions taken by Guinea were consistent with the applicable provisions of the Convention. The Tribunal has reached a decision on that issue on the basis of the law applicable to the particular circumstances of the case, without having to address the broader question of the rights of coastal States and other States with regard to bunkering in the exclusive economic zone. Consequently, it does not make any finding on that question’ (emphasis added). The economy of reasoning in the case at issue has also been underlined by the legal doctrine. According to Louise De La Fayette (supra note 76, at 475), ‘[i]n so doing, [the Tribunal] was acting in accordance with the accepted principle of judicial economy.’

79 United States – Measures Relating to Shrimp from Thailand, United States – Customs Bond Directive for Merchandise Subject to Anti-Dumping/Countervailing Duties, adopted on 16 July 2008, WT/DS343/AB/R, WT/DS345/AB/R.

80 This opinion has been maintained, inter alia, by J. L. Simpson and H. Fox, International Arbitration: Law and Practice (1959), 252.

81 See, for instance, Mani, supra note 5, at 48.

82 See supra p. 909.

83 In this regard see the legal literature supra note 10.

84 Such observations are not valid with regard to international criminal tribunals. As already observed supra section 2.1.4, indeed, in this context absorption is a tool of reasoning more than a legal principle.

85 The sole case where the use of absorption is always considered fair refers to the EU judicial decision-makers’ practice concerning the application of Art. 263 of the TFEU (ex Art. 230 of the EC treaty). Once the judges annul an act on the basis of one of the pleas in law invoked, and since the act has been annulled, there is no reason to establish whether the same act is unlawful from other points of view.

86 F. Carnelutti, Sistema di diritto processuale civile (1931), I, 40, 231 ff.; Carnelutti, Diritto e processo (1958), 54; Carnelutti, ‘Le prove civili e le prove penali’, (1925) Rivista di diritto processuale 18; B. Cavallone, ‘Critica della teoria delle prove atipiche’, (1978) Rivista di diritto processuale 722.

87 M. Taruffo, ‘Note per una riforma del diritto della prove’, (1986) Rivista di diritto processuale 243; Taruffo, La semplice verità (2009), passim. On this point see also P. Calamandrei, ‘Verità e verosimiglianza’, (1955) Rivista di diritto processuale 164; G. Amarelli, La ritrattazione e la ricerca della verità (2006), 17.

88 From this point of view the observations of M. R. Damaška, Faces of Justice and State Authority: A Comparative Approach to the Legal Process (1986), are quite interesting. This author does not take up a position in the matter, but expressly recognizes that ‘the verdict in the conflict-solving mode is not so much a pronouncement on the true state of the world as it is a decision resolving the debate between the parties, like a peace treaty putting an end to combat’ (123, emphasis added).

89 See, e.g., supra note 85.

90 M. Scerni, ‘La procédure de la Cour permanente de justice internationale’, (1938/III) 65 RCADI 565, at 601; Sereni, supra note 15, at 85. More generally as to the nature of international adjudication, see G. Morelli, ‘La théorie générale du procès international’, (1937/III) 61 RCADI 253, at 358.

91 Supra note 56.

92 Supra note 60.

93 Supra note 45.

94 Appellate Body, European Communities – Export Subsidies on Sugar, WT/DS265/AB/R, adopted on 28 April 2005, 114.

95 According to Jeff Waincymer, where the panel limits the scope of the decision, it adopts a particular interpretation as to the meaning of Arts. 3(4), 3(7) and 7(1) of the DSU, which call for recommendations and rulings made by the DSB aimed at achieving a satisfactory settlement of the matter; ‘thus, . . . a claim of inappropriate application of the principle of judicial economy could be legitimate ground of appeal’. Waincymer, supra note 55, at 730.

96 On several occasions the Appellate Body examined an issue not specifically addressed by the panel, in order to complete the analysis and resolve the dispute between the parties (e.g. Australia – Salmon, supra note 59, at 70, and Canada – Certain Measures Concerning Periodicals, WT/DS31/AB/R, adopted on 30 July 1997, 24). Yet this is possible only where the factual findings of the panel and the undisputed facts in the panel record provide a sufficient basis for the legal analysis and where the provision not examined by a panel is closely related to a provision that the panel has examined, and that the two are ‘part of a logical continuum’ (see for further references to previous jurisprudence European Communities – Export Subsidies on Sugar, supra note 93, at 115). On the legal doctrine see Yanovich, A. and Voon, T., ‘Completing the Analysis in WTO Appeals: The Practice and Its Limitations’, (2006) 9 Journal of World Trade 933Google Scholar.

97 S. Sonelli, ‘La doppia istanza di giudizio secondo l'undicesimo protocollo alla Convenzione europea dei diritti dell'uomo’, (1995) Rivista di diritto internazionale 345.

98 See supra note 44.

99 It is worth observing that no other review mechanism available to remedy false absorption exists. We refer especially to the instance of revision. The circumstance that a tribunal refrains from deciding some of the issues raised could never constitute a new fact justifying the revision of this judgment. Since such a fact should be (a decisive factor in reaching the decision and) unknown to the tribunal concerned and the rule not to rule on certain issues is a discretionary power of the tribunal itself, resorting to revision in this case would lead to an illogical outcome. On the remedy of revision in international adjudication see again Palombino, supra note 52.

100 The first decision to be relevant in this regard is the report of the Appellate Body in European Communities – Anti-dumping Duties on Imports of Cotton-Type Bed Linen from India. Recourse to Article 21.5 of the DSU by India, WT/DE141/AB/RW, adopted on 8 April 2003, at 35.

101 US – Oil Country Tubular Goods Sunset Reviews, WT/DS268/AB/RW, report adopted on 12 April 2007, 63.

102 Ibid., at 65. On the legal doctrine, and for further references on the most significant case law in the matter, see Alvarez-Jiménez, supra note 22, at 5.

103 G. Fitzmaurice, ‘Hersch Lauterpacht – The Scholar as Judge’, (1961) British Yearbook of International Law 1, at 14; Mahoney, P., ‘Judicial Activism and Judicial Self-Restraint in the European Court of Human Rights: Two Sides of the Same Coin’, (1990) 11 Human Rights Law Journal 57Google Scholar; Galston, M., ‘Activism and Restraint: The Evolution of Harlan Fiske Stone's Judicial Philosophy’, (1995) 70 Tulane Law Review 1441Google Scholar; Thirlway, supra note 25; Kelly, J. P., ‘Judicial Activism at the World Trade Organization: Developing Principles of Self-Restraint’, (2002) 22 Northwestern Journal of International Law and Business 353Google Scholar; A. Cassese, ‘The ICTY: A Living and Vital Reality’, (2004) Journal of International Criminal Justice 585; Kmiec, K. D., ‘The Origin and Current Meaning of ‘Judicial Activism’, (2004) 92 California Law Review 137CrossRefGoogle Scholar; McWhinney, E., ‘The International Court of Justice and International Lawmaking: The Judicial Activism/Self-Restraints Antinomy’, (2006) 5 Chinese Journal of International Law 3CrossRefGoogle Scholar; S. Zappalà, ‘Judicial Activism v. Judicial Restraint in International Criminal Justice’, in A. Cassese (ed.), The Oxford Companion to International Criminal Justice (2009), 216.

104 The more complete formulation of this conception is due to G. Chiovenda, Principi di diritto processuale civile (1963), 72. According to this well-known Italian lawyer the judge is a mere executor of the law, not only in applying but also in interpreting it: ‘the interpretation is due to the doctrine, and not the judge: consequently, as far as the interpretation is conceived as a source of law, the judge limits himself to applying it’ (74).

105 This opinion is confirmed by both domestic and international practice. With regard to domestic practice, the well-known Cristina case, decided by the House of Lords in 1938, is a clear evidence of it. In the case at issue, Lord Atkin observed, ‘In the present case I find it unnecessary to decide many of the interesting points raised in the arguments for the appellants . . . In matter of such grave importance such as those involving questions of international law, it seems to me very expedient that Courts should refrain from expressing opinions which are beside the question actually to be decided’ ([1938] AC 485, at 493). As to the international practice, the judgment of the US Military Tribunal in the List case ought to be considered: ‘It is not our province to write international law as we would have it; we must apply it as we find it’ (Trials of War Criminals before the Nuremberg Military Tribunals under the Control Council Law No. 10, XI, 1950). Similar statements can be found in the jurisprudence of both the Permanent Court of International Justice (SS Wimbledon (France, Italy and Japan v. Germany), PCIJ Rep., (1923) Series A No. 1, at 24) and the International Court of Justice. This last court, in particular, clarified that its task is not ‘to reply to the questions as stated in the final submissions of the parties, but also to abstain from deciding points not indicated in those submissions’ (Asylum (Colombia v. Peru), Judgment of 20 December 1950, [1950] ICJ Rep. 266, at 402). In just this way it would be able to assure ‘the inherent limitations on the exercise of [its] judicial function’ and ‘to maintain its judicial character’ (Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, Judgment of 2 December 1963, [1963] ICJ Rep. 15, at 29). In this respect, see also the separate opinion appended by Judge Singh to the decision of 21 June 2000 in the case concerning the Aerial Incident of 10 August 1999 (Pakistan v. India), [1999] ICJ Rep. 12, at 24 (‘in accordance with the principle of judicial property, a court of law is required to pronounce upon those issues alone which are so directly involved in the decision-making process as to require detailed scrutiny followed by a regular judgment from the Court. In short, in the proper discharge of its judicial function, a court is not required to pronounce on those aspects of the case which do not call for a decision in the task of accomplishing the adjudication of the dispute. No tribunal could ever undertake an exercise in futility’).

106 See, for instance, the Declaration of Judge Spencer in the decision South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), [1966] ICJ Rep. 6, at 49.

107 Fitzmaurice, supra note 103, at 15. This opinion, especially with reference to international tribunals, is clearly shared by Cassese (supra note 103, at 590), who states, ‘the practice of most national courts (particularly in common-law countries, but also in countries like France) to limit themselves strictly to deciding on petitum, that is, the issues raised by the parties, and also of so doing tersely, may be regarded as judicious. Moreover, the parties to a trial do not expect more . . . However, international courts operate in a legal system that is notably lacking in many respects. Among other things, the absence of an international law-maker and an international court with compulsory jurisdiction entails that many rules are not clear, particularly when they are of customary origin, and are thus open to different interpretations – hence the need for courts gradually to spell out the contents of those rules, if need be thorough obiter dicta’. In the same vein see Zappalà, supra note 103, passim. As to international jurisprudence supporting this approach, the judgment of the International Court of Justice in Oil Platforms should be mentioned (Islamic Republic of Iran v. United States), Judgment of 6 November 2003, [2003] ICJ Rep. 161). In this case, the Court examined the US bombing of the Iranian oil platforms in the light of the jus ad bellum, even though it was not asked for in the submissions of the applicant. For criticisms of this approach see the individual opinions appended by Judges Higgins, Parra-Arunguren, Kooijmans, Buergenthal and Owada.

108 R. Bhala, ‘The Precedent Setters: De Facto Stare Decisis in WTO Adjudication (Part Two of a Trilogy)’, (1999–2000) 9 Transnational Law and Policy 2, at 51 (‘judicial economy is premised on more than the need to conserve judicial resources and dispose of matters efficiently. It is a principle of self-restraint’ (emphasis added)). See also Busch and Pelc, supra note 55, at 261 (‘judicial economy at WTO is a means by which panels practice self-restraint in cases where a broader ruling may be politically untenable’).

109 This conclusion could be inferred from the practice of both the International Court of Justice (supra note 70) and the WTO judicial decision-makers (supra note 56).

110 In this respect see F. M. Palombino, ‘La “procedura di sentenza pilota” nella giurisprudenza della Corte europea dei diritti dell'uomo’, (2008) Rivista di diritto internazionale privato e processuale 91, at 103.

111 This contention (which is apparently in line with the opinion of Thirlway, supra note 25, at 76) is broadly confirmed by the experience of national legal systems of both civil and common law tradition. As for systems with a civil law tradition, the Italian practice (as systemized by scholars of civil procedure) appears quite significant. The emergence of the principle of judicial economy in the Italian context is ascribed to Giuseppe Chiovenda's scientific work. According to Chiovenda, the outcome of the trial should ‘grant to the plaintiff no more and no less than what he or she has the right to’. In this perspective, judicial economy should always inspire rules governing procedure, since it aims at obtaining ‘the best result in the application of the law with the minimum use of judicial resources’ (Chiovenda, supra note 104, at 132). A more comprehensive empirical study of the principle of economy has been carried out by Luigi Comoglio, who perceived the importance of this principle from the standpoint of the judge's powers. Indeed, according to him, judicial economy ‘is pointless if it is confined to the abstract or guiding principles of the law-maker . . . it becomes useful only where understood as a directive for the judge conducting the proceeding . . . a criterion to be used in order to rationalize his discretionary powers’. It is not possible to disregard this directive, he adds, every time judicial activism is to be carried out in a given proceeding (L. Comoglio, Il principio di economia processuale (1982), II, 359. On this matter see further C. Von Mettenheim, ‘Der Grundsatz der Prozessökonomie’, in Schriften zum Prozessrecht (1970), XIV, 15; E. Schumann, ‘Die Prozessökonomie als rechtsethisches Prinzip’, in Festschrift für K. Larenz zum 70. Geburstag (1970), 272; A. Carretero Pérez, ‘El principio de economia procesal en lo contencioso-administrativo’, 1971 Revista de administración pública 99). The principle of judicial economy as an expression of judicial activism is currently used in common law systems as well, despite the adversarial nature of these systems. The adversarial mode of proceeding ‘unfolds as an engagement of two adversaries before a relatively passive decision maker whose principal duty is to reach a verdict’ (Damaška, supra note 88, at 3). This mode stems from the idea that the limitation of the judge's powers, on the one hand, represents the most effective way to search for the material truth in a dispute and, on the other hand, guarantees his or her impartiality. In the last few years, however, even the discretionary powers of the common law judge have expanded, owing largely to the principle of judicial economy. One may consider his or her active participation in the collection of evidence (Comoglio, supra, at 303).