The contribution addresses the ne ultra petita principle as a means to govern the relationship between judicial autonomy and the autonomy of the parties’ principles. The issue is not addressed so much through the lens of the procedural rules on the conduct of the proceedings, as much as through the prism of the general principles of adjudication which dictate the boundaries of judicial, or arbitral, decision making. The focus will be on the combination between the principles of ne ultra petita and non liquet, both flowing from the consensual nature of international adjudication and arbitration, on the one hand, and the principle iura novit curia which mirrors the autonomy of the judicial function, on the other. The analysis does not draw from national legal systems, nor from commercial arbitration. Due to the significantly different configuration of the principles at issue in different jurisdictions, it will focus on international litigation as an autonomous phenomenon. It will address firstly inter-State adjudication and then international investment arbitration. Special attention will be given to the ICSID system in consideration of its unique annulment mechanism. The contribution draws from case law researched an encouragement, if not the simply the need, for international adjudicative bodies to undertake a proactive attitude in the conduct of the proceedings. More generally, potentials emerge from the analysis to the effect that not only inter-State adjudication may impact on investor-state arbitration, but also vice versa.

Ne Ultra Petita

A Tanzi
2020

Abstract

The contribution addresses the ne ultra petita principle as a means to govern the relationship between judicial autonomy and the autonomy of the parties’ principles. The issue is not addressed so much through the lens of the procedural rules on the conduct of the proceedings, as much as through the prism of the general principles of adjudication which dictate the boundaries of judicial, or arbitral, decision making. The focus will be on the combination between the principles of ne ultra petita and non liquet, both flowing from the consensual nature of international adjudication and arbitration, on the one hand, and the principle iura novit curia which mirrors the autonomy of the judicial function, on the other. The analysis does not draw from national legal systems, nor from commercial arbitration. Due to the significantly different configuration of the principles at issue in different jurisdictions, it will focus on international litigation as an autonomous phenomenon. It will address firstly inter-State adjudication and then international investment arbitration. Special attention will be given to the ICSID system in consideration of its unique annulment mechanism. The contribution draws from case law researched an encouragement, if not the simply the need, for international adjudicative bodies to undertake a proactive attitude in the conduct of the proceedings. More generally, potentials emerge from the analysis to the effect that not only inter-State adjudication may impact on investor-state arbitration, but also vice versa.
Trattato di diritto dell'arbitrato, Vol XIII: L’arbitrato negli investimenti internazionali
687
718
A Tanzi
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Utilizza questo identificativo per citare o creare un link a questo documento: http://hdl.handle.net/11585/797812
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