The Procedural Cross-Fertilization Pull

Professor Ruiz Fabri and Dr Joshua Paine

MPILux Working Paper 6 (2019)

Abstract: This paper argues that there is a distinct ‘pull’ towards cross-fertilization on procedural questions, meaning cross-fertilization between international courts and tribunals may be more likely for procedural issues than for questions of substantive law. As well as describing in a representative manner the substantial amount of cross-fertilization between international adjudicatory bodies that is occurring in relation to procedural issues, we attempt to provide a framework that helps explain this phenomenon. Our core suggestion is that procedural cross-fertilization is an ongoing process and is not just about borrowing by adjudicators, but involves contributions by a range of other actors, including the disputing parties, counsel, administering institutions and secretariats, professional bodies (eg the International Bar Association), and states as drafters of constitutive instruments and operators of control mechanisms. We suggest that three main considerations facilitate procedural cross-fertilization and even make it somewhat likely: the broad degree of discretion afforded to adjudicators on procedural issues; adjudicators’ duty to decide numerous procedural issues that arise throughout the proceedings; and sociological considerations concerning the circulation of a small number of personnel across multiple fora. We then analyse two wide-ranging considerations that counter-balance adjudicators’ broad discretion. On the one hand, various control mechanisms can be, and are, used by states to push adjudicators to remain faithful to their mandates, thus limiting the space for procedural cross-fertilization. On the other, procedural cross-fertilization feeds, and is fed by, an emerging model of international due process that is affecting all areas of international adjudication and that, by consolidating, becomes a constraining frame. This model of international due process has many components and we analyse its influence on two cross-cutting issues: expectations around the independence and impartiality of adjudicators and expectations around the transparency of adjudicatory processes.

Keywords: International Courts and Tribunals, Cross-fertilization, International Procedure, Due Process, Independence and Impartiality, Transparency and International Adjudication