La validità della sentenza internazionale nelle controversie fra Stati

International judgments have a binding character as long as they meet certain requirements imposed by the rules governing both the procedure and the judge’s duties. In this regard, the validity of the judgment represents a sort of all-inclusive requirement. The book aims to provide an in-depth analysis of all rules and principles of international adjudication dealing with the grounds of invalidity, their functioning, their ascertainment as well as their implications upon both the judgment and the national measures enacting it. The introduction focuses on the concept of ‘invalidity’, in order to assess which general category in international law among (absolute) nullity, voidness or inexistence should encompass it. The author upholds the (absolute) nullity category, especially due to the lack of a permanent international body which might rule on annulment claims. Such a view, however, may not apply to specific systems providing States parties with a means of annulment. Chapter I deals with the shortcomings related to the exercise of jurisdiction. It mainly focuses on the excès de pouvoir, as a well-known ground of invalidity in arbitration. Chapter II examines the infringement of fundamental rules of procedure. After describing the general features of the error in procedendo, so as to distinguish between simple irregularity and invalidity, the chapter proceeds with a survey of: a) the incorrect application of the rules relating to the establishment and composition of judicial bodies; b) the consequences of the absence of a judge in case of collegial composition; c) the breach of equality principle; d) the infringements of the principles in the matter of evidence; c) the excès de pouvoir as to the so-called ‘inherent’ power. Chapter III deals with the ‘arbitrary use of the judicial function’. The main breaches taken into consideration concern independence and impartiality. The author includes errores in iudicando – as a particular facet of the excès de pouvoir – within the concept of ‘arbitrary use of the judicial function’ only insofar as they are essential and manifest. Chapter IV aims to determine the (judicial or non-judicial) ‘places’ where the invalidity may be ascertained. It has been divided into 5 sections. Section 1 refers to the States’ right to object the invalidity. On the one hand, it is indisputable that one State may claim invalidity but, on the other hand, that same State should not be entitled, as a matter of principle, to decide by itself the consequences of the invalidity claim on the judgment’s binding force. The invalidity claim will be certainly challenged by the successful litigant. Thereby a dispute concerning the existence of one or more grounds of invalidity arises: a dispute which is different from that “settled” by the judgment at stake. Section 2 sets out certain unilateral acts or agreements as well as acquiescence and estoppel leading to debar the invalidity claim. Section 3 aims to determine which judicial body may rule on disputes concerning the invalidity. As for the pre-judgment phase, the preliminary objections in matters of jurisdiction and the Kompetenz-Kompetenz principle drew major attention. As regards the post-judgment phase, the analysis explores the concept of ‘supervisory jurisdiction’, giving some examples. Section 4 in turn scrutinizes other proceedings aimed at ‘reviewing’ or ‘reopening’ a judgment so as to verify whether they might involve a validity appraisal. Last but not least, Section 5 focuses on the ICJ’s judgment validity, by stressing how the relationship between validity and binding character does not vary in this regard. Chapter V, finally, deals briefly with the effects of invalidity upon the obligations stemming from the judgment as well as upon the national measures enforcing it.