• Introduction

Introduction

he arbitral court is a flexible adjudicatory body because the disputants have some control over the constitution of the arbitral court, its procedural and proceedings rules, and the applicable substantive law. On that flexibility and the static structure resides the cardinal difference between an arbitral and a judicial court, in the sense that, generally, the judicial court is standing, not ad hoc (except for a few criminal ad hoc judicial bodies, i.e the International Criminal Tribunal for the Former Yugoslavia, for Sierra Leone and for Rwanda, which were explicitly instituted to judge crimes related to special situations).

In modern history, arbitral institutions precede judicial ones. The first judicial court, the Central American Court of Justice, was instituted in 1907. The first standing arbitral court, the Permanent Court of Arbitration, was established in 1899. Ad hoc arbitral courts date back longer, with the 1794 Jay Treaty being the most ancient of modern times.

contrast The notion of staticness result that the judicial court is pre-existent to any dispute referred to it, and so fixed are its rules of procedure and proceedings, not having parties a control over its constitution, functioning, and rule os procedure or proceedings. Moreover, the judicial court is more similar to the domestic judicial courts, almost not existing a difference between domestic and international court of arbitration.

The Permanent Court of Arbitration and the International Court for the Settlement of Investment Disputes are examples of institutional arbitration courts. The Ospar Convention-underpinned arbitral court, which adjudicated the MOX Plant case between Ireland and the UK, illustrates an ad hoc arbitration court. The judicial court is underpinned by multilateral intergovernmental conventions; exceptionally, a judicial court may be created by a resolution of the UN Security Council.

The International Court of Justice and the International Tribunal for the Law of the Sea are samples of judicial courts