General Principles of Law and International Due Process

Principles and Norms Applicable in Transnational Disputes

Charles T. Kotuby, Jr., Luke A. Sobota, Center for International Legal Education (CILE) University of Pittsburgh School of Law, and Foreword by Stephen M. Schwebel

An encyclopaedic discussion of the general principles of law and due process with a particular focus on developments since Bin Cheng's writing
Collects and distills these principles and norms in a single volume as a practical resource for international law jurists, advocates, and scholars
Offers an expert exposition of how international due process applies to contemporary disputes in the transnational sphere
Contains an extensive chapter on the historical genesis of the general principles of law and due process
Provides an annex of supporting authorities and cases

General Principles of Law and International Due Process

Principles and Norms Applicable in Transnational Disputes

Charles T. Kotuby, Jr., Luke A. Sobota, Center for International Legal Education (CILE) University of Pittsburgh School of Law, and Foreword by Stephen M. Schwebel

Description

Article 38 of the Statute of the International Court of Justice defines "international law" to include not only "custom" and "convention" between States but also "the general principles of law recognized by civilized nations" within their municipal legal systems. In 1953, Bin Cheng wrote his seminal book on general principles, identifying core legal principles common to various domestic legal systems across the globe. This monograph summarizes and analyzes the general principles of law and norms of international due process, with a particular focus on developments since Cheng's writing. The aim is to collect and distill these principles and norms in a single volume as a practical resource for international law jurists, advocates, and scholars. The information contained in this book holds considerable importance given the growth of inter-state intercourse resulting in the increased use of general principles over the past 60 years.

General principles can serve as rules of decision, whether in interpreting a treaty or contract, determining causation, or ascertaining unjust enrichment. They also include a core set of procedural requirements that should be followed in any adjudicative system, such as the right to impartiality and the prohibition on fraud. Although the general principles are, by definition, basic and even rudimentary, they hold vital importance for the rule of law in international relations. They are meant not to define a rule of law, but rather the rule of law.

General Principles of Law and International Due Process

Principles and Norms Applicable in Transnational Disputes

Charles T. Kotuby, Jr., Luke A. Sobota, Center for International Legal Education (CILE) University of Pittsburgh School of Law, and Foreword by Stephen M. Schwebel

Foreword

Acknowledgments

Preface

I. An Introduction to the General Principles of Law And International Due Process

A. The Origin and Evolution of the General Principles of Law
1. Principles That Are General
2. Principles That Are Universal
3. Typical Usage of General Principles
4. Invocations of General Principles

B. The Origin and Evolution of International Due Process
1. A Process Grounded in General Principles
2. The Concept of International Due Process
3. Specific Invocations of International Due Process

II. Modern Applications of The General Principles of Law

A. Good Faith in Contractual Relations
1. Pacta Sunt Servanda: Agreements Must Be Honored
2. Good Faith In Excusing Contractual Performance
3. Good Faith in Remedying Non-Performance

B. Abuse of Rights and the Principle of Proportionality
1. The General Prohibition on the Abuse of Rights
2. The Principle of Proportionality

C. Estoppel
D. The Prohibition on Advantageous Wrongs and Unjust Enrichment
E. Corporate Separateness and Limited Liability
F. The Principles of Causation and Reparation
G. The Principles of Responsibility and Fault

III. Modern Application of the Principles of International Due Process

A. Notice and Jurisdiction
B. Judicial Impartiality and Judicial Independence
C. Procedural Equality and the Right to be Heard
D. The Prohibition of Corruption and the Nullifying Effect of Fraud: Fraus Omnia Corrumpit
E. Evidence and Burdens of Proof
G. The Principle of Res Judicata

Epilogue

Index

General Principles of Law and International Due Process

Principles and Norms Applicable in Transnational Disputes

Charles T. Kotuby, Jr., Luke A. Sobota, Center for International Legal Education (CILE) University of Pittsburgh School of Law, and Foreword by Stephen M. Schwebel

Author Information

Charles T. Kotuby, Jr. is a partner at Jones Day in Washington D.C. His practice concentrates on litigation concerning foreign sovereigns and commercial and investment arbitration. He is a Fellow of the Chartered Institute of Arbitrators, and has for the past several years been teaching law school courses on international arbitration and dispute resolution. He is also a member of the Advisory Board of the Center for International Legal Education at the University of Pittsburgh School of Law, and clerked for Judge Joseph F. Weis of the United States Court of Appeals for the Third Circuit.

Luke A. Sobota is a founding partner of the law firm of Three Crowns LLP, which is dedicated to international arbitration and adjudication involving both private and sovereign parties. For the past several years, Luke has taught law school courses on international arbitration and dispute resolution. He previously worked in the Office of Legal Counsel at the U.S. Department of Justice, where he advised and prepared legal opinions for executive branch officials in the areas of constitutional, international, and administrative law. He also clerked for William H. Rehnquist, the late Chief Justice of the U.S. Supreme Court.

General Principles of Law and International Due Process

Principles and Norms Applicable in Transnational Disputes

Charles T. Kotuby, Jr., Luke A. Sobota, Center for International Legal Education (CILE) University of Pittsburgh School of Law, and Foreword by Stephen M. Schwebel

Reviews and Awards

"This well-structured book provides an up-to-date analysis of general principles and due process, focusing on more recent developments since Bin Cheng's classic work on the topic. ... KOTUBY and SOBOTA illustrate the topic by way of extensive case law analysis issued by national and international tribunals as well as arbitral tribunals. The authors offer comprehensive guidance to practitioners and scholars." -- Caroline Dos Santos, ASA Bulletin

"This book makes a signal contribution to the progressive development of international law by its searching study of the place of general principles of law in contemporary international arbitration and their relationship to due process of law in international and national proceedings. It proceeds to expound the particulars of salient general principles in depth. It does so with scholarship, insight, and panache." -(From the Foreword) Stephen M. Schwebel

"As said once by Kurt Lewin in another context, [there is nothing more practical than a good theory]. At a time when the number of international courts and tribunals is increasing, international judges and arbitrators aim to establish their respective decisions on the most universal of grounds; they are more than ever conduced to refer to the fundamental values that bring together positive rules and normative visions. In that respect, Charles Kotuby and Luke Sobota offer a brilliant, comprehensive, and most useful study on the place and role of general principles of law in contemporary international arbitration in relation to the due process of law as fertilized by comparative and international law." -Pierre-Marie Dupuy, International Arbitrator

"Experience teaches that general principles of law mean, in practice, different things to different minds. Common ground on legal axioms is more a presumption than a truth-as pluri-jurisdictional colloquy shows. So when their precise content is nurtured from distilling lessons stemming from the (voluminous) corpus of awards, judgments, and treatises hailing from international adjudication, it is not only guidance which is conferred to arbitrators and advocates engaged in transnational advocacy, but solace. Such is the achievement of Messrs. Sobota and Kotuby in their learned treatise." -Francisco González de Cossío, International Arbitrator

"This book explores how general principles of law are being applied, providing a timely update to Bin Cheng's classic work. It focuses on the application of the principles to private conduct - an astute response to the evolution of international process over the past half-century. The result is a work that will benefit both scholars and practitioners." -James Crawford, Judge, International Court of Justice

"Their contribution to the topic of general principles provides a significant step towards the international community's fuller understanding of the basic building blocks that construct international law." - Dr. Marija Dordeska, S.J.D., LL.M., Transnational Dispute Management