The Research School
How can the success of international dispute resolution be explained? How must successful dispute resolution be organized? The planned Research School, which currently offers five doctoral positions, wants to investigate these questions.
Over the last 15 years the number of international dispute resolution institutions has increased strongly. However, they have fulfilled the hopes placed in them to different degrees. Many have been very successful (ICC, ICSID, CAS), others have only few cases each year. The Research School shall contribute to a better understanding of these institutions and strengthen their further development. The main idea is that comparing different institutions, based on international public as well as on international economic law, leads to new insights. Coordinating research projects of doctoral students and professors opens an interdisciplinary perspective previously unknown to legal science due to the strict separation between international private and international public law. In legal practice this separation has largely been overcome. This academic void shall be filled. As a general rule, research projects should have a comparative perspective; interdisciplinary references to sociology, psychology and communication science are desirable.
The Research School is connected with the corresponding International Max Planck Research School on Successful Dispute Resolution.
- Prof. Dr. Burkhard Hess, Institute of Foreign and International Private and Economic Law, University of Heidelberg and Director of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law;
- Prof. Dr. Rüdiger Wolfrum, Max Planck Institute for Comparative Public Law and International Law
- Prof. Dr. Gerhard Dannecker, Professor for German and International Criminal Law at the University of Heidelberg
- Prof. Dr. Dr. h.c. Werner Ebke, LL.M., Institute for German and European Company and Economic Law at the University of Heidelberg
- Prof. Dr. Dr. h.c. Herbert Kronke, Institute of Foreign and International Private and Economic Law, University of Heidelberg
- Prof. Dr. Dr. h.c. Peter-Christian Müller-Graff, Institute for German and European Company and Economic Law at the University of Heidelberg
- Prof. Dr. Thomas Pfeiffer, Institute of Foreign and International Private and Economic Law, University of Heidelberg
c) Research program
1. The research program encompasses all international dispute resolution institutions. The term “dispute resolution” refers to institutions and processes in which a neutral third party resolves a dispute on a legal base or mediates an agreement. It includes institutions resolving disputes by judicial proceedings, arbitration or court-like proceedings, such as WTO-Panels, WTO Appellate Bodies and similar institutions such as “international claim commission” (related to the Gulf War or the so-called “Holocaust Litigation”). Furthermore, procedures of dispute resolution are conciliation procedures common in international Public and economic law. Also part of the research subject are investigation procedures indirectly contributing to dispute settlement. Mediation procedures of growing importance in international context are included, too.
The term “international” excludes purely domestic institutions, such as national courts settling disputes based on the state’s monopoly of force and a fully developed political community. All institutions included in the research program must exceed such a domestic context. Otherwise “international” is understood in a broad sense. It covers dispute resolution institutions based on public international and on private law, as long the parties involved come from different states. However, state institutions with strong international elements can and shall be included. The international element can be an internationally staffed bench or the application of international law as found in mixed tribunals in Sierra Leone or Cambodia. Even though national courts are excluded from the research program they can be used as object of comparison for comparative research.
A number of institutions and procedures can be researched. In addition to the institutions already mentioned, there are: the International Court of Justice (ICJ), the Court of Arbitration of the ICC, dispute resolution in the WTO, the International Tribunal of the Law of the Sea, the International Centre for Settlement of Investment Disputes (ICSID) and its institutions, the arbitration court founded by the OECD and the Council of Europe for parts of the International Tax Law, the European Court of Human Rights, the European Court of Justice (ECJ) if acting as arbitration court for international public law disputes between the member states of the EC/EU, the Inter-American Court of Human Rights, the International Criminal Court, the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda. As mentioned, dispute resolution not only refers to institutionalized jurisdiction and mediation but also includes mediation, dispute resolution in the internet (Online Dispute Resolution, IP-Litigation) and various forms of conciliation in international public law. The diverse procedures and techniques of sophisticated dispute resolution offer cutting-edge research subjects. Not only arbitration is of interest, but also Alternative Dispute Resolution, Mass Claim Processing and the combination of different procedures in modern clauses of dispute resolution and de-escalation, which combine negotiation, mediation, arbitration and Choice of Court Agreements. Finally the development of comprehensive procedural elements forms part of the research program. A few of these elements are: The procedures of international courts follow a adversary. The procedure generally comprises a written and an oral procedure, the evidence rules are similar. It is assumed that the establishment of the different international courts and procedures will lead to an international procedural law.
Dispute resolution has a legal, a political and an economic aspect. The international “suppliers” of dispute resolution compete for attractive cases. At the same time new problems of delimitation between the competing procedures of dispute resolution arise. The World Bank has recently evaluated the “efficiency” of national judicial systems. This approach can be used for international dispute resolution systems, too.
The term “success” is enigmatic. The research design does not prescribe a certain meaning of success. Preferably the projects should elaborate their own definition of success and thus contribute to new perspectives of the phenomena. By all means the term allows looking at a wide range of aspects. Only a few important questions listed in the following.
A visible sign of success of an international dispute resolution institution is the extent to which it is called upon. Some courts only have very few cases, some like the European Nuclear Energy Tribunal have had no case at all. The attempt of international judges to obtain cases explains many legal creations such as the international obligations erga omnes. Therefore a first research question addresses the preconditions for access to an institution. Answers can be developed based on social science, legal politics or legal theory. Possible research problems are dispute constellations, specific interests and the composition of the bench. Details of the procedure also offer interesting research subjects, such as questions concerning the costs or the interests of the international bar especially compared to the perspective of the institutions dealing with the conflicts. A good example is the Law of the Sea: Disputes in this area are often not settled by the International Tribunal of the Law of the Sea but by arbitration tribunals or the International Court of Justice. However, absolute interpretations must be handled with care. For a long time the arbitration of the ICSID was not often called upon, but is now being increasingly used. The reasons for this change have yet not been sufficiently researched.
A further aspect of the success of international dispute resolution is to reach decisions which are actually adhered to and enforced. This aspect is critical as international institutions cannot rely on a state’s monopoly of force or a fully developed political community which enhance abidance to the decisions of domestic courts at least in liberal democracies. States often do not comply with the decisions of some international courts, especially not with those of the International Court of Justice. However, there are significant differences between the various courts: The affected states have hitherto strictly adhered to the decisions of the International Tribunal of the Law of the Sea. A research question would be when, and under which preconditions, a decision is successful in the sense of being accepted and (readily) followed by the parties. Success in this respect can also mean that the decision is implemented with the help of other international organizations (this is especially the case concerning the ICSID) or directly inspires the domestic legislator. Questions can be based on social science, legal theory or dogmatic methods. Social sciences can help explaining dispute constellations and specific interests. Legal theory can be applied to examine and compare the structure of argumentation of success and unsuccessful decisions. Dogmatic methods can focus on the national effects or how the parties have to be involved in the procedure so that the decision is successfully implemented. Possible criteria on a micro level (i.e. concerning the specific bench) are: the parties involved and those authorized to express a position, the legal and technical legitimacy, legal instruments ensuring neutrality, language questions, public participation in decision-making, documentation and publication of the decisions, remedies. On a macro level one could look at the differentiation between the different jurisdictions and their influence on each other, and at the possibilities of and how to deal with “forum shopping”.
Another aspect of success meriting further research is whether the decision pacifies and stabilizes. Such research could be empiric or dogmatic. An important dogmatic question could be to what extend dispute resolution bodies achieve consistent rulings or even develop “case law” accepted as binding for the understanding of the legal standard. WTO, ICSID and ICJ have problems in this area. Related to this aspect is the question whether and to what extend the dispute resolution bodies are perceived to be legitimate. This is not always the case: In the US the International Court of Justice faces problems similar to those of the International Criminal Tribunal for the Former Yugoslavia in Serbia. This question can be addressed using legal theory, social science and dogmatic methods.
2. Candidates are expected to formulate specific research questions which are within the thematic frame of the Research School. They must further specify the topic planned for their doctoral thesis. Topics with a comparative approach or interdisciplinary method are especially welcome.
d) Study program
1. Biweekly seminar: The program coordinators and the doctoral students meet to discuss questions common to the different research projects. In addition, participating professors and diverse experts deliver talks on specific issues.
2. “Doktorandenkolloquium”: Once per semester, the doctoral students and all their professors will meet for a colloquium, which will allow to discuss questions of general interest and, in a later stage, to present the progress of the individual research projects.
3. The law school offers special courses regarding international dispute resolution, with respect to private international law as well as in public international law. Practitioners play an important role in these courses.
4. Annually, the Heidelberg Center for International Dispute Resolution organizes a Summer Academy on International Dispute Settlement, in cooperation with the ICC International Court of Arbitration and the Deutsche Institution fuer Schiedsgerichtsbarkeit (DIS).
The Summer Academy provides in-depth knowledge of the different facets of International Dispute Resolution. Practical oriented presentations combined with interactive workshops provide an excellent opportunity to learn both the theory and practice of International Dispute Resolution. The members of the research school will participate in the summer academy (free of charge).
5. Finally, the doctoral students can take part in one of the international moot courts offered by the Law School, either as participants, or as coaches.
Cf. http://www.heidelberg-center.org/moot and
6. German language classes are offered for foreign students in order to prepare them for the final oral examination necessary to obtain the doctorate (Rigorosum) which will take place in German.
7. The Graduate Academy of Heidelberg University offers additional educational opportunities. See http://www.graduateacademy.uni-heidelberg.de/workshops/index_en.html.
e) External Supervisors
The dissertations are normally supervised by one of the professors named above (b.). If the applicant is already supervised by a professor of another university, one of the professors above will be named as an additional supervisor.