The Duty to Litigate in Good Faith in International Dispute Settlement

The Society's 114th Annual Meeting—and first Virtual Annual Meeting—took place June 25–26, 2020. The 2020 Annual Meeting theme, "The Promise of International Law," was an opportunity to reflect on the successes and failures of international law, while reaffirming our commitment to achieving its promise of a more just and peaceful world.

Sponsored by Curtis, Mallet-Prevost, Colt & Mosle LLP

What does the duty of good faith require of disputing parties engaged in litigation before international courts and tribunals? The duty of good faith is well established in international law, and parties frequently invoke it, but its scope and effect in the context international dispute settlement remain unclear. How does the duty of good faith affect the making of applications for interim relief, matters of evidence and the hearing of witnesses? What of “guerilla tactics” such as ambushes, intimidation or sabotage which present the risk of serious interference or obstructive conduct by a disputing party? What role should adjudicators play in ensuring that the parties act in good faith and do not engage in abuse of process? With the proliferation of international courts and tribunals and the massive uptake in international proceedings, the stakes are high. More than ever, parties, counsel, and adjudicators must know which conduct will be permitted and which conduct will be sanctioned. Focusing on proceedings before the International Court of Justice and three other regimes in which States participate in international proceedings – international investment law, international trade law, and international human rights law – this panel will examine how different international courts and tribunals have given content to the duty to litigate in good faith. Is there a unified concept of procedural good faith or is it heavily context-dependent? Is there – and, critically, should there be – a difference in approach in State- State proceedings before the ICJ and the WTO versus proceedings in the investment or human rights spheres where individual claimants face respondent States? The adjudicators, counsel, and academics on this panel will identify parallels and differences among legal regimes, discuss recent trends, and critically evaluate the contours of the duty of good faith in international dispute settlement. The moderator-driven rapid response format will aim at fostering a lively discussion.

Payam Akhavan, McGill University Faculty of Law
Mélida Hodgson, Jenner & Block LLP
Emma Lindsay, Withersworldwide (Moderator)
Campbell McLachlan, Victoria University of Wellington
Philippa Webb, King’s College Faculty of Law
(Speaker organizations are shown as of June 2020)