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Note on New International Case-law Concerning the Binding Character of Provisional Measures

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Three recent judicial or quasi-judicial cases deal with the question as to if provisional measures indicated by the respective body are binding on the parties to the dispute or not. In all three cases, the constitutive instruments under which the body acted were silent on the question of the binding nature of the measures at stake. Traditionally, the point as to the bindingness of such measures, in the absence of any special provision granting them a binding force, was extremely controversial. Now, through these three recent cases, the jurisprudence forcefully affirmed such bindingness. The reasoning on which the three cases are based is similar: according to the caselaw, teleological reasons compel to consider that the provisional measures indicated are binding, since to hold otherwise would allow one party to frustrate the object and purpose of the whole proceeding while the matter is pending. It may thus well be that these three recent precedents established a new (procedural) customary presumption, by a sort of quick speed customary law. Thus, in the absence of special provision to the contrary, provisional measures indicated by an international judicial or quasi-judicial body would be binding, at least when such measures are taken in order to safeguard the respective rights of the parties.

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