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5 - Institutional and Procedural Features of an ICCJ

Published online by Cambridge University Press:  07 November 2018

Maya Steinitz
Affiliation:
University of Iowa School of Law
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Summary

Chapter 5 is the heart of the proposal; it sets out the legal and institutional blueprint for the ICCJ. At the heart of the proposal is a two-tiered structure, implemented through two separate treaties. The first treaty would create the court and establish its jurisdiction in the territory of states parties. The second would set out the enforcement regime, but would not grant the ICCJ jurisdiction in the territory of states parties. The chapter covers the temporal, personal, and subject matter jurisdiction of the ICCJ as well as its relationship to national court systems. In the latter regard, the ICCJ should have exclusive jurisdiction superseding the courts of states parties, although complementary (shared) jurisdiction may be plausible, albeit inferior, fallback position. In both its substantive and procedural law the ICCJ should follow global trends in adopting a hybrid of common-law and civil-law approaches. Among other things, this will have the effect of eliminating or moderating the effect of features—such as punitive damages and juries—that are regarded by corporate defendants as unfair. The parties should be able to avail themselves of an array of mechanisms within the ICCJ, including alternative dispute resolution, non-representative collective litigation, and ‘full’ representative litigation (often called, “class actions”).
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Publisher: Cambridge University Press
Print publication year: 2018

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