Originally from The Law and Practice of International Arbitration: Essays in Honor of John Fellas – Preview Page

INTRODUCTION 

The concept of abuse of process is frequently invoked before international courts and arbitral tribunals, but there remains considerable confusion regarding its normative character and content. For instance, while States frequently invoke abuse of process in proceedings before the International Court of Justice (“ICJ”) and although the Court appears to recognize abuse of process as an applicable principle of public international law, it has never actually applied it, and it has consistently declined to elaborate upon what the doctrine of abuse of process is and where it comes from. 

This trend led one of the co-authors, then a Judge ad hoc in an ongoing case before the ICJ, to describe abuse of process in a separate opinion as the “holy grail of international law…, i.e. something in which this Court fervently believes, but the actual shape, substance and content of which the Court never has ascertained.”2 Since that opinion was issued in February 2021, States have continued to invoke abuse of process before the ICJ in a variety of contexts, but a definition of the concept remains elusive. The Court’s attitude towards abuse of process therefore calls to mind U.S. Supreme Court Justice Potter Stewart’s famous dictum from Jacobellis v. Ohio—to paraphrase, the Court will not attempt to define abuse of process, but it “knows it when it sees it.” Thus far, a majority of the Court has not “seen” abuse of process in any case, though various Judges writing in their individual capacities, including former President Joan Donoghue, have.3