Document Type
Article
Publication Date
Winter 2018
Abstract
General principles of law have long been central to the practice and scholarship of both public and private international law. However, the vast majority of commentary focuses on substantive rather than procedural concerns. This Article reverses that trend through a unique and innovative analysis that provides judges, practitioners, and academics from around the world with a new perspective on international procedural law. The Article begins by considering how general principles of procedural law (international due process) are developed under both contemporary and classic models and evaluates the propriety of relying on materials generated from international arbitration when seeking to identify the nature, scope, and content of general principles of procedural law. The analysis adopts both a forward-looking, jurisprudential perspective as well as a backward-looking, content-based one and compares sources and standards generated by international arbitration to those derived from other fields, including transnational litigation, international human rights, and the rule of law. The Article then tackles the novel question of whether general principles of procedural law can be used to develop a procedural form of }us cogens (peremptory norms). Although commentators have hinted at the possible existence of a procedural aspect of }us co gens, no one has yet focused on that precise issue. However, recent events, including those at the International Court of Justice and in various domestic settings, have demonstrated the vital importance of this inquiry.
The Article concludes by considering future developments in international procedural law and identifying the ·various ways that both international and domestic courts can rely on and apply the principles discussed herein. In so doing, this analysis provides significant practical and theoretical assistance to judges, academics, and practitioners in the United States and abroad and offers groundbreaking insights into the nature of international procedural rights.
Recommended Citation
S. I. Strong,
General Principles of Procedural Law and Procedural Jus Cogens, 122 Penn State Law Review 347
(2018).
Available at: https://scholarship.law.missouri.edu/facpubs/710