Procedural Fairness in International Courts and Tribunals, edited by Dr. Arman Sarvarian, Lecturer in law at the University of Surrey School of Law, Dr. Filippo Fontanelli, Senior Lecturer in international economic law at the University of Edinburgh Law School, Dr. Rudy Baker, Lecturer in law and political science at the University of Surrey, and Dr. Vassilis Tzevelekos, Senior Lecturer in law at the University of Liverpool Law School, provides a timely compilation of thoughtful essays concerning the impact of procedure on the actual and perceived fairness experienced by the parties to disputes in international fora. Given the proliferation of international courts and tribunals and the growing demand for their services in a wide variety of international disputes, questions of procedural fairness are increasingly significant and gaining prominence in international practice. The international legal community has a vested interest in exploring these questions for multiple reasons: not only is procedural fairness a potential basis for argument in any given case, but it is also a critical underpinning of the continued survival and growth of the international dispute resolution system.

This collection of essays on procedural fairness offers views of value to practitioners and academics alike because it touches on a variety of topics in different types of fora and contexts, including both criminal and civil proceedings in international and regional courts as well as private commercial arbitration and investor-state arbitration. Consequently, Procedural Fairness in International Courts and Tribunals serves the twin purposes of providing practical suggestions to lawyers, judges, and arbitrators who may be considering issues of procedural fairness in their specific cases while also opening a dialog on the subject for broader discussion.

Procedural Fairness in International Courts and Tribunals is divided into four sections composed of multiple essays. The first section provides a framework for understanding the historical approach to procedural fairness in different legal traditions. After preparing the reader with that background framework, the second section sets forth what the core standards of procedural fairness are today and examines those standards in criminal and civil contexts. The third section examines the current procedural fairness challenges facing international courts and tribunals, such as the International Court of Justice (ICJ), the International Criminal Court (ICC), the Court of Justice of the European Union, and tribunals hearing investor-state proceedings. Finally, the fourth section concludes the book with an essay by two of the editors, Arman Sarvarian and Rudy Baker, who offer their thoughts on issues in procedural fairness that they anticipate arising in the future and on other issues not explored in this volume. The remainder of this review will address each of these four sections in greater depth.

Part One lays the foundations for the remainder of this book by defining procedural fairness, or alternatively, identifying its key features. Filippo Fontanelli and Paolo Busco author the first chapter of Part One, which they begin by examining the concept of procedural fairness, highlighting that both procedural and substantive fairness are necessary to the perceived legitimacy of a legal regime: “[T]hat justice is ultimately done is not sufficient for the legal order to achieve social legitimacy … authority and efficiency,” they argue, “justice must also be seen to be done” (p. 20). They then discuss the relationship of procedural fairness and the community in which it is being applied. Expanding that discussion to the international community, they then address various distinctions between procedural fairness in the international legal system, on the one hand, and domestic legal systems, on the other. Ultimately, they close this chapter with the view that, while many procedural instruments of international law share certain similarities, “one universal model is perhaps unlikely” (p. 38).

Judge Sir Kenneth Keith offers a unique perspective on the practical aspects of fairness in international civil tribunals. Starting from the baseline that both the public and the decision maker require a fair process, Sir Kenneth reviews how procedural issues relating to fairness have been addressed historically through an analysis of the minutes of the Permanent Court of International Justice Advisory Committee of Jurists as it considered whether and how to create procedure for instituting provisional measures, rendering decisions in the absence of a respondent, permitting intervention by third states, requesting evidentiary submissions, and allowing judges to submit dissents. He then offers commentary on certain features of the rules of the Permanent Court of International Justice and the ICJ, including the view that, with respect to rulemaking, “less is more” (p. 51). Finally, Sir Kenneth considers whether international procedures do or should parallel their national counterparts. He leaves the reader with a reminder of the critical importance of sound procedure, referring to American jurist Justice Frankfurter's statement that “[t]he history of liberty has largely been the history of observance of procedural safeguards” (p. 57).

The next chapter features an overview by Dr. John Sorabji of the main features of procedural fairness in common law jurisdictions. Dr. Sorabji organizes these features into three clusters: the due process cluster (e.g. the right to a hearing); the adjudicatory cluster (e.g. the requirement that courts have written procedural codes); and the resource cluster (e.g. the right to a cost-effective process in a reasonable time). Dr. Sorabji then discusses two trends he has identified in common law jurisdictions, namely the decline of “State provision of legal aid for the impecunious” and the use of procedural reform, guided by the proportionality principle, “to increase procedural efficiency while reducing litigation cost” (p. 67).

Part One concludes with a chapter by Dr. Gabriele Ruscalla, in which he argues that modern European continental procedure traces its roots back to the Roman, Germanic, and Canon law traditions. This chapter begins with a historical review of the Roman, Germanic, and Romano-Canonical legal traditions and then provides evidence that the rights to impartial adjudicators, to be heard, and to an appeal date back to those traditions.

Part Two focuses more narrowly on particular principles associated with or forming the body of procedural fairness. Part Two opens with a chapter by Dr. Serena Forlati concerning the right to a fair trial in international non-criminal tribunals. Dr. Forlati first explores the role that consent plays in international non-criminal adjudication, specifically with respect to the fair trial model, which includes access to courts and enforcement of judgments. She then considers the principle of party equality, which she argues is “embedded in traditional inter-State adjudication, as a reflection of the principle of sovereign equality” (p. 108), offering examples of the variety of approaches toward achieving part equality taken by international tribunals. Dr. Forlati closes on the note that “international courts perceive the paramount importance of procedural fairness,” but she recognizes that implementation of the fair trial model established by national courts may be hindered in international courts by “the sweeping role of the principle of consent” (p. 117). She ultimately concludes that international courts may be able to overcome shortcomings in their ability to provide fair trials “only through a fruitful dialogue between international courts and their ‘constituencies’ as part of the more general effort to promote the rule of law in the international society” (p. 117).

By contrast to Ms. Forlati's focus on non-criminal disputes, Dr. Sophie Rigney focuses on fairness in international criminal tribunals. Dr. Rigney argues that fairness is critical to trials in international criminal tribunals and offers three potential reasons for fairness: it offers tribunals a tool for interpreting and supplementing the applicable procedural rules or laws; it assists trial chambers to reach conclusions by enabling them to ensure “that evidence is rigorously tested and of high quality” (p. 123); and it legitimizes the criminal trial process and possibly the legal institution as well (p. 125). Dr. Rigney then contrasts the centrality of fairness with the uncertainty of what constitutes fairness, arguing that different approaches to fairness—namely, whether fairness is owed primarily to the accused or rather to all of the participants in a case—have yielded an incoherent approach to fairness across international criminal tribunals, leaving the questions of “what international criminal law is trying to achieve, and how it will do so …” unanswered (p. 134).

In the following chapter, Laura Marschner focuses on the impact that victim participation in disputes before international criminal tribunals has on procedural fairness in criminal cases. Ms. Marschner notes the growing emphasis placed on victims’ rights in such proceedings and argues that victim participation need not be a “‘zero-sum game’ where the expansion of rights of victims automatically diminishes those of the accused and, ultimately, procedural fairness” (p. 136). She proposes that the rights of victims may be balanced with those of the accused (p. 151), and to that end, she explores approaches to victim participation by examining how the International Criminal Court and the Extraordinary Chambers in the Courts of Cambodia have incorporated victims into the dispute resolution process.

The following two chapters turn to the question of equality of arms in dispute resolution. First, Raymundo Tullio Treves argues that, in civil cases, inequality of resources may impact equality of arms, which requires “(i) that each party be given a reasonable opportunity of presenting its case; and (ii) that one party may not be at a substantial disadvantage vis-à-vis the other” (p. 156). He then posits that inequality of resources may be remedied through the provision of financial assistance funds provided by tribunals and arbitral institutions or the use of third party financing. Where financial assistance is not available, he posits that courts and tribunals have “a duty … of showing leniency toward the party with scarce resources” (p. 165).

In contrast to Mr. Treves, Dr. Masha Fedorova examines how the principle of equality of arms has been applied in international criminal tribunals. She begins by examining the meaning and application of the concept of equality of arms in a human rights law context, with reference to the European Court of Human Rights. With this background, she then examines application of the concept of equality of arms in international criminal tribunals, focusing on the practices in the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court. Dr. Fedorova argues that the concept of equality of arms was intended “to enable the accused to actively participate in the criminal process” but has been interpreted by ad hoc tribunals in ways that are “controversial, unprincipled and conceptually unsound” to apply to other procedural participants (p. 186). She concludes that this interpretation “unjustifiably elevates [other procedural participants’] procedural interest to the level of enforceable rights,” hiding “a very real risk of ‘balancing away’ the legitimate interests of the accused,” and she encourages ad hoc tribunals to develop “a more principled approach to determine the relative weight … of the legitimate interests at stake…” (pp. 186–87).

Dr. James Devaney turns to a different aspect of procedural fairness, examining the role that evidence plays in achieving procedural fairness. Beginning with expert evidence, Dr. Devaney explores the International Court of Justice's use of “experts phantoms” (experts informally consulted by the Court), strongly discouraging it in favor of experts appointed by the Court pursuant to the Court's statute. He also advocates against the use of experts as counsel and in favor of additional direction from the Court concerning examination and cross-examination of experts and fact witnesses. Finally, he considers whether international tribunals have the power to compel production of evidence and encourages the ICJ to interpret its statute and rules to enable it to compel production of evidence by the parties.

Catherine Gibson addresses the attention that international tribunals are placing on professional ethics in international dispute resolution. Ms. Gibson explains that while international courts and tribunals were once an “ethical no man's land,” as counsel was regulated by national law for national practice, certain national laws and international courts and tribunals have begun to regulate counsel's conduct in international proceedings. Ms. Gibson then explores three approaches that international instruments have taken to regulate counsel's conduct, concluding that future regulation may lean toward

In the final chapter of Part Two, Dr. Chiara Giorgetti analyzes the techniques of cross-fertilization, focusing on how they are applied to procedural matters in international courts and tribunals. Dr. Giorgetti explains “cross-fertilization” as a method by which “international courts routinely reference customary international law, general principles of law and rules developed in other international judicial and arbitral practice” (p. 224). She then examines how international courts and tribunals use this method to support decisions in favor of applying existing standards and, separately, to support decisions to depart from existing standards. In the course of doing so, Dr. Giorgetti argues that not only is cross-fertilization common among international courts and tribunals, but also that their use of it signifies “the initial formation … of a common international procedural law applicable to a variety of international courts and tribunals which is developing the essential core of procedural fairness” (p. 225).

Part Three of the book presents an examination of how procedural fairness is addressed by particular international courts and tribunals. Professor Hugh Thirlway begins Part Three with a chapter about the types of challenges that the International Court of Justice has faced with respect to procedural fairness. Professor Thirlway categorizes those challenges as impartiality of the bench (addressing both actual and perceived impartiality), fairness as it relates to jurisdiction over the parties or admissibility, fairness as it relates to non-parties to an action, legal and practical fairness (including fairness issues arising from an imbalance of financial support or from an inability to obtain evidence), and fairness in the court's deliberative process. He concludes that the International Court of Justice and its brethren, such as the International Tribunal for the Law of the Sea and the International Criminal Court are generating a “corpus of law on procedural fairness [that] seems set to develop further through the jurisprudence of all these bodies” (p. 257).

In the following chapter, Hugh Meighen and Brooks Daly offer a window into the world of interstate and investor-state arbitration. Messrs. Meighen and Daly examine the use of bifurcation of proceedings into jurisdictional and substantive phases as an approach to resolving jurisdictional challenges while recognizing the underlying tension between economy of resources and use of dilatory tactics. They also examine the challenges that setting timetables for resolution of disputes and disclosing documents raise in arbitration involving states, suggesting different approaches to such challenges in investor-state versus interstate disputes.

Dr. Chi Carmody reflects on fairness in World Trade Organization (WTO) dispute settlement proceedings. Dr. Carmody posits that WTO law does not directly emphasize “fairness” but rather “‘equality of competitive conditions’” (p. 278). To support his view, he examines the approach that the WTO has taken with regard to three issues—third party rights, burden of proof, and handling of evidence—noting in at least one instance that WTO law's vacillation concerning the appropriate approach “is illustrative of the highly subjective nature of fairness…” (p. 287). Ultimately, he concludes that fairness is variable and that, while fairness demands appropriateness, appropriateness may not explain every reference to fairness in WTO law.

Oonagh Sands offers a practitioner's insight into procedural fairness in investor-state arbitration. Focusing primarily on applications of the International Centre for Settlement of Investment Disputes Convention and rules and the UN Commission on International Trade Law rules, Ms. Sands examines how investment-treaty tribunals have addressed issues of procedural fairness in the context of a tribunal's power to dismiss frivolous claims at an early stage in the dispute resolution process, the parties’ duty to arbitrate in good faith, a tribunal's ability to ensure equality of arms, and finally a tribunal's ability to revisit its prior findings in later stages of a dispute. Ms. Sands concludes that while investment-treaty tribunals have not yet developed into a mature system, they have addressed certain common issues, such as requiring parties to arbitrate in good faith. Many other issues, such as challenges to party-appointed arbitrators and third-party financing of claims, remain unresolved and unexplored in the system.

In the following chapter, Dr. Juliane Kokott, Advocate General of the Court of Justice of the European Union, and Wolfgang Rosch shift the reader's attention toward the European Union courts, meaning the Court of Justice, the General Court, and the Civil Service Tribunal. They argue that these courts are guided by the principle set forth in Article 47 of the Charter of Fundamental Rights of the European Union, granting the right to an effective remedy and to a fair trial. They then analyze how the Statute of the Court of Justice, the Rules of Procedure of the three European Union Courts, and their case law have addressed issues of procedural fairness, focusing on the rules relating to legal representation and the right of access to documents and exceptions thereto.

Dr. Lucas Lixinski explores how procedural fairness is implemented by human rights bodies, focusing primarily on the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. Dr. Lixinski acknowledges that the statutes or rules of the Commission or the Court do not mention the term “fairness” but include several provisions relating to procedural fairness, such as rules concerning the status of the parties, equality of arms, and submission of evidence. Dr. Lixinski then explores the tension between the Commission and the Court's mission to promote human rights and “the need for State compliance with and respect for the system's organs and their findings,” i.e. the need for the organs’ legitimacy (p. 334). In his concluding remarks, he argues that procedural fairness is closely intertwined with both of these concepts in that it means providing certain benefits to victims while also limiting the leeway provided to victims.

Judge Philip Weiner offers recommendations on how international criminal courts and tribunals can ensure procedural fairness by properly shaping the bench, for “[a]n international criminal court or tribunal is only as good as its judges” (p. 343). For instance, Judge Weiner recommends that international courts and tribunals take into account a judicial candidate's knowledge of criminal law, human rights law, and the law of evidence, fluency in one of the languages of the court, experience in practice and the timeliness of that experience, and drafting ability, which he notes is necessary for transparency, among other important factors. He further considers the composition of the bench for particular trials, encouraging courts and tribunals to take steps such as random assignment of cases to avoid an appearance of bias and selection of experienced judges to preside over cases. Finally, he urges courts and tribunals to provide introductory and ongoing judicial training programs to ensure and maintain the quality of judicial performance.

Dr. Sergey Vasiliev authors the final chapter of Part Three, in which he considers procedural fairness in the International Criminal Court. Dr. Vasiliev first explores the concept of fairness in the ICC's context, including how fairness is reflected in the ICC's legal instruments and how the ICC may draw upon external sources. He then examines the ICC's practice of fairness in its jurisprudence. In closing, he predicts that, notwithstanding the indeterminacy of the concept of fairness, the various critiques of the ICC's ability to distribute procedural justice will lead it to develop a more robust theory of fairness.

Procedural Fairness in International Courts and Tribunals offers multiple valuable contributions to the legal community. First, it encourages a community-wide discussion about how international dispute settlement fora do or should tackle questions of ethics and fairness. Second, in doing so, this book makes a wealth of research on case law, rules, and other sources available to the international legal community to catalyze that discussion. Finally, two of the book's editors, Dr. Rudy Baker and Dr. Arman Sarvarian, close the book by reminding us of the book's third and most significant contribution: by continuing to enhance “the art of judicial technique,” they argue, the legal community not only promotes the attractiveness of pacific international dispute settlement, but in doing so, also contributes to the realization of “a world without war” (p. 394).