Introduction int institutional law剑桥大学法律法学Cambridge University Press 3-精选.doc

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12Dispute settlementIntroductionAll legal systems will have found a way to settle disputes between their sub-jects in a legally prescribed manner. That may range from having disputessettled by the elders of tribe or village following their wisdom to highlyformal and formalized procedures involving barristers, judges, juries andjournalists,

following strictly def i ned rules of law.A similar variety can be seen within international organizations: mostorganizations will have some mechanism to settle disputes, and thesemay range from highly complex and organized ways where a premiumis put on application of strict rules (the EC is the paradigm example) torather more f l exible ways where the ironing out of the conf l ict is deemedmore important than the rigid application of strict rules (e.g., the oldGATT 1 ).Those different mechanisms may well stem from the consideration that,within an organization made up of a relatively small number of states,strict judicial settlement is somehow incongruous: if those states embarkon a common project, it may not be a particularly good idea to have themmeet in court on a regular basis; litigation, with its connotations of win-ners and losers, guilty parties and victims, crime and punishment, is notconducive to fostering the spirit of community. This may explain why ad-visory opinions are relatively popular within international organizations,

2whereasbindingjudicialsettlementisreasonablyrareandusuallydealswiththelegalprotectionofindividualsorcompaniesratherthanwithinter-statedisputes.1TheseminalstudyisRobertE.Hudec,TheGATTLegalSystemandWorldTradeDiplomacy (NewYork, 1975).2For an overview of the popularity of advisory opinions, see Kenneth J. Keith, The Extent of theAdvisory Jurisdiction of the International Court of Justice (Leiden, 1971), pp. 1618.253

2 an introduction to international institutional lawAdditionally, the variety of dispute settlement mechanisms ref l ects avariety of ideas as to the roles of law and of dispute settlement withinthe organization. In an organizat...