Wednesday, October 4, 2017

Bjorklund & Brosseau: Sources of Inherent Powers in International Adjudication

Andrea K. Bjorklund (McGill Univ. - Law) & Jonathan Brosseau (Univ. of Cambridge) have posted Sources of Inherent Powers in International Adjudication. Here's the abstract:
This chapter contributes to the debate about the sources of inherent powers in international adjudication. First, it contemplates the broader issue of whether the use of these powers amounts to exercising, or exceeding, an adjudicative body’s proper function. The distinguishing feature of inherent powers, it is asserted, is that they are “necessary” or “essential” judicial powers. There are also basic limitations on what states and private parties can agree to when they create an adjudicative body, thus restricting their ability to take way certain inherent powers in accordance with international law. Second, this chapter emphasizes the primary role that constitutive instruments play in shaping the inherent powers of international courts and tribunals, which should alleviate the concerns about the legitimacy of these powers. While commentators typically favor one of the approaches to the sources of inherent powers, notably the general principles approach and the functional approach, it is argued that these approaches do not conflict. They are rather partly overlapping. Indeed, inherent powers may be expressed, discretionary, implied, and norm-based.