Hepburn: The International Extension of Denial of Justice

Jarrod Hepburn (Univ. of Melbourne - Law) has posted The International Extension of Denial of Justice (Modern Law Review, forthcoming) Here's the abstract:

Denial of justice arises under customary international law when states prevent foreigners from accessing domestic courts. Certain states, scholars and arbitrators have maintained that an extension of the rule against denial of justice applies when states prevent access to international courts or tribunals. If correct, this extension would impose a significant control on states’ engagement with international adjudication. However, this article contends that the international extension of denial of justice is unsupported on any account of custom. A state's interference with international adjudication might be treated as ineffective, or it might breach the instrument containing the state's consent to the international claim. But this article argues that it does not, and should not, also breach the customary rule on denial of justice. The article therefore aims to clarify both the customary law in this area and the actual and desirable extent of states’ autonomy in their engagement with international adjudication.