ACIL Luncheon: How (much) are international courts influenced by the parties’ reasoning in drafting a judgment?
While the assertion that international courts are influenced by the parties’ pleadings may seem rather obvious, little appears to be understood of when, why and how exactly that happens (or does not happen), even though it could have significant implications for parties, including in strategic litigation.
At a basic level, judges seem to feel compelled to address parties’ arguments (and may to some extent be required to do so), even if they do not necessarily adopt those arguments. Going one step further, the paper aims to provide an initial framework to answer a set of questions, the most crucial of which is: to what extent are courts driven by the parties’ reasoning in drafting a judgment – and how to trace and measure that influence? In particular, to what extent do courts adopt the legal framework and/or the particular arguments put forward by one or both parties? How often, and under what circumstances, do courts eschew both parties’ framework and/or arguments altogether, rather than simply choosing one narrative over the other? Can the judges’ and other court personnel’s background (coming from an adversarial or inquisitorial legal system) be a significant factor? And where the same party appears repeatedly before a court on similar issues (as happens with state parties in human rights law), what determines when and how that party adapts its pleadings to the court’s previous reasoning, creating a ‘feedback loop’?
Andrea Varga is a Research Associate at the Lauterpacht Centre for International Law, working on the Legal Tools for Peace-Making Project. Her research interests focus on peace-making, the law of responsibility – attribution in particular – regarding both states and international organizations, as well as judicial dialogue and the approach of specialized courts to questions of general international law.
Prior to joining the project, Andrea was a Meijers PhD Fellow at Leiden University, where she conducted research on her doctoral dissertation and taught at both Bachelor and Master level. She is currently in the process of completing her PhD on the topic of 'State Responsibility in the Absence of Effective Government', which analyzes questions relating to the duty to prevent, complicity and attribution in light of the increased role of non-state actors in such situations. As part of her doctoral research, she also spent a semester as a Visiting Scholar at Columbia Law School in New York.
Andrea holds an LLM in Public International Law from Leiden University (the Netherlands) and an MA in International Relations from the Corvinus University of Budapest (Hungary). Alongside the LLM, she also completed the research-oriented Talent Programme of the Graduate School of Legal Studies at Leiden.
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