Published online by Cambridge University Press: 03 September 2014
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.
1 Art 4(1), Responsibility of States for Internationally Wrongful Acts (2001) in Yearbook of the International Law Commission, 2001, vol II (Pt Two); de Visscher, C, ‘Le déni de justice en droit international’ (1935) 52 Recueil des Cours 376–7Google Scholar; AV Freeman, The International Responsibility of States for Denial of Justice (Periodicals Service Co 1938) 28; de Aréchaga, EJ, ‘International Law in the Past Third of a Century’ (1978) 159 Recueil des Cours 1, 278Google Scholar; 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.
2 EM Borchard, The Diplomatic Protection of Citizens Abroad ( WS Hein & Co Reprint 2003); Eustathiades, CT, La responsabilité internationale de l’État pour les actes des organes judiciaires (Pedone 1936)Google Scholar; Freeman (n 1); de Visscher (n 1); Paulsson, J, Denial of Justice in International Law (CUP 2005)CrossRefGoogle Scholar.
4 The term ‘foreign nationals’ is intended to cover legal entities such as companies as well as individuals.
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 Fuller, LL and Winston, KI, ‘The Forms and Limits of Adjudication’ (1978) 92 HarvLRev 353, 367Google Scholar.
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.
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.’)
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; Fawcett, JES, ‘The Exhaustion of Local Remedies: Substance or Procedure?’ (1954) 31 BYBIL 457Google Scholar; 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 İnşaat İthalat İhracat Sanayi Ve Ticaret Anonim Şirketi 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.’); Trindade, AAC, ‘Denial of Justice and Its Relationship with the Exhaustion of Local Remedies in International Law’ (1978) 53 Philippine Law Journal 404Google Scholar; International Law Commission (Dugard), Second Report on Diplomatic Protection, UN Doc A/CN.4/514 (2001) 6.
23 Trindade, AAC, The Application of the Rule of Exhaustion of Local Remedies in International Law: Its Rationale in the International Protection of Individual Rights (CUP 1983)Google Scholar.
29 Borchard (n 2) 337–8; Eagleton, C, ‘Denial of Justice in International Law’ (1928) 22 AJIL 538, 539CrossRefGoogle Scholar; Hyde, CC, International Law Chiefly As Interpreted and Applied by the United States (Little, Brown & Co 1922) 491–2Google Scholar; Adede, AO, ‘A Fresh Look at the Meaning of the Denial of Justice under International Law’ (1976) 73 Canadian YBIL 82Google Scholar; Lissitzyn, OJ, ‘The Meaning of the Term Denial of Justice in International Law’ (1936) 30 AJIL 632, 637CrossRefGoogle Scholar.
35 Irizarry y Puente, J, ‘The Concept of “Denial of Justice” in Latin America’ (1944) 43 MichLRev 383, 406Google Scholar (emphasis in original).
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  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, 134Google Scholar.
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.
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.
43 Some legal systems rely on appellate mechanisms more than others: Hansen, PD, ‘Stacking Appellate Dissents: Due Process in the Appellate Arena’ (1983) 18 ValULRev 141, 144Google Scholar; Merryman, JH, The Civil Law Tradition (2nd edn, Stanford University Press 1985) 120Google Scholar; Damaska, MR, ‘Structures of Authority and Comparative Criminal Law’ (1975) 84 YaleJIntlL 480Google Scholar.
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; Akehurst, M, ‘Jurisdiction in International Law’ (1974) 46 BYBIL 145, 170–7Google Scholar.
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.
47 ECHR Case No 4451/70, Judgment of 21 February 1975.
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.
57 Petrobart Limited v Kyrgyzstan, Award of 29 March 2005, SCC Case No 126/2003.
60 ibid 317 (see also authorities listed in note at 318); Anzilotti, D, ‘La responsabilité internationale des États à raison des dommages soufferts par des étrangers’ (1906) 13 Revue générale de droit international public 285, 297Google Scholar; Fauchille, P, Traité de droit international public (Rousseau 1921) vol 1, 533–4Google Scholar; 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, 134Google Scholar.
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.
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.
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.
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.
78 Galligan, DJ, Discretionary Powers (Clarendon Press 1986) 335Google Scholar; Fiss, OM, ‘The Allure of Individualism’ (1993) 78 IowaLRev 965, 978Google Scholar (‘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: Solum, LB, ‘Procedural Justice’ (2004) 78 SCalLRev 181, 190Google Scholar.
79 Mashaw, JL, Due Process in the Administrative State (Yale University Press 1985) 162–3Google Scholar.
82 Tribe, LH, ‘The Puzzling Persistence of Process-Based Constitutional Theories’ (1980) 89 YaleLJ 1063, 1064Google Scholar. 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 Bone, RG, ‘Making Effective Rules: The Need for Procedure Theory’ (2008) 61 OklaLRev 319, 329, 334Google Scholar.
84 Bone, RG, ‘Rethinking the “Day in Court” Ideal and Nonparty Preclusion’ (1992) 68 NYULR 193, 282Google Scholar.
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  1 AC 42 (in relation to civil rights); R v G  1 WLR 1379 (in relation to the criminal law).
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: Dixon, RG, ‘The “New” Substantive Due Process and the Democratic Ethic: A Prolegomenon’ (1976) BYULRev 43, 84Google Scholar; Tribe, LH, ‘Substantive Due Process’ in Levy, L (ed), Encyclopedia of American Constitutional Law (1986)Google Scholar.
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).
92 R Dworkin, ‘Principle, Policy, Procedure’ in A Matter of Principle (1985).
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.
109 The second arbitrator might be said to adhere to a ‘pure’ theory of procedural justice in the sense articulated by Rawls: Rawls, J, A Theory of Justice (Harvard University Press 1971) 86Google Scholar.
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  1 WLR 1775, 1783–1784 (PC); Bangs v Connex South Eastern Ltd  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.
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 Douglas, Z, ‘The Enforcement of Environmental Norms in Investment Treaty Arbitration’ in Dupuy, P-M and Viñuales, J (eds), Harnessing Foreign Investment to Promote Environmental Protection (CUP 2013)Google Scholar; 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) 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  requires that an individual applicant should claim to have been actually affected by the violation he alleges. Article  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.’)
118 Damaska, MR, ‘Structures of Authority and Comparative Criminal Law’ (1975) 84 YaleJIntlL 480Google Scholar.
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 Crawford, J, The International Law Commission's Articles on State Responsibility (CUP 2002) 85Google Scholar.
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.]
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.
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?’.
127 Z Douglas, ‘The Enforcement of Environmental Norms in Investment Treaty Arbitration’ in Dupuy and Viñuales (n 115) 418–24.