In negotiating the inclusion of a dispute settlement mechanism in an MEA, States first must agree on which procedure or procedures to incorporate. The options include:
- negotiation and good offices;
- mediation (generally non-binding and facilitative; involves an independent third party, as do the other options below)
- conciliation (similar to mediation, but the disputing parties rarely if ever meet in the presence of the conciliator),
- arbitration (generally binding, but with fewer rules of procedure and often not public),
- judicial settlement (binding decisions and usually public),
- fact-finding/commissions of inquiry, and
- non-compliance procedures (see Guideline 14(d)
).
If more than one approach is chosen, the negotiating States will need to decide upon the relationship among the different modalities.
In addition, other key issues will need to be agreed upon. This can be done in the MEA text or later (by the COP, by other organs established under the MEA, or even by the dispute settlement body itself). These issues include:
- Exhaustion of prior remedies: Frequently, MEAs require States to take some prior steps to resolve the dispute before resorting to a formal dispute settlement procedure.
- Invoking the dispute settlement procedure: Are the dispute settlement procedures mandatory or optional? Mandatory procedures can be invoked by one or more parties unilaterally. Optional procedures will only be applied if two or more parties involved have agreed upon it beforehand.
- Jurisdiction of the body: In particular, establishing the: (1) Jurisdiction rationae materiae (setting forth the substance of what disputes that can be submitted for resolution); (2) Jurisdiction rationae personae, (who can invoke the dispute settlement procedure and against whom it can do so); and (3) Jurisdiction rationae temporis (within what timeframe the disputes must be submitted).
- Applicable law: This includes both the sources of the law (the MEA, other treaties, international law, domestic law (of which State?), etc.) and the substantive and procedural aspects of the law.
- Adjudicators or members of the body: This includes which body or persons are competent to serve, how they will be selected, and procedures for resolving disagreements over the adjudicators.
- Powers of the dispute settlement body: Will it be competent to address questions of fact as well as law, to investigate (what sources of information?), to prescribe remedies (what remedies?), to declare or order interim measures of protection, etc.?
- Third party intervention: Can interested third parties intervene? Under what circumstances?
- Procedural rules: Because these are often too complex to be handled by the MEA, the MEA can either specify that the dispute settlement body will choose them, or the MEA can refer to existing rules, such as those of the PCA.
- Timetable and costs: It can be worth setting a strict timetable for the dispute settlement process, as well as who shall bear the costs.
This Checklist was developed based on materials on the PCA web site: http://www.pca-cpa.org/