402
among scholars and in certain interpretation of the ICJ case law. According to this
view, there is no doubt that determinations over issues not covered by the jurisdiction ratione materiae cannot be considered as binding the parties or as having a res
judicata effect. However, since decisions on incidental questions of merits are necessary in order to reach the principal determinations and constitute an indispensable
support for them, such incidental determinations keep a sort of “stabilizing” effect
in a given proceeding. As Salles put it, they “serve to stabilize the procedural relationship and may become definitive only in the sense that they cannot be overturned
in the course of the same proceeding […] [T]o the extent that decisions on preliminary objections beyond principal jurisdiction may be definitive, they remain circumscribed to the proceedings in which they are made”.
89
All in all, the crux of the problem is how one interprets the notion of “same
proceeding” or “same case”. In his dissenting opinion appended to the Chorzów
Factory Case (interpretation) judgment, Judge Anzilotti interestingly observed that
“[u]nder a generally accepted rule which is derived from the very conception of res
judicata, decisions on incidental or preliminary questions which have been rendered
with the sole object of adjudicating upon the Parties’ claims (incidenter tantum) are
not binding in another case”.
90
This opinion seems to indirectly suggest the binding
(or “stabilizing”) effect of incidental determinations in the same case. Yet one is still
left with the doubt as whether interpretation or also revision proceedings
91
pertain
to the same case.
92
In the judgments concerning the Chorzów Factory, where the
incidental (and external) question concerned the right of ownership, under municipal law, of German companies over the Factory,
93
the PCIJ referred to the pertinent
findings as “condition essential to the Court’s decision”, a concept that, as seen, was
subsequently endorsed by the ICJ in the Temple (interpretation) case. Thus, the PCIJ
and the ICJ apparently conceived interpretation proceedings as the “same case” for
the purposes of legal effects of incidental determinations. Admittedly this approach
seems to go too far, as also stated by Judges Owada, Bennouna and Gaja in the
abovementioned declaration.
89 Salles (2014), pp. 136–137.
90 Dissenting opinion of Judge Anzilotti, PCIJ, Interpretation of Judgments Nos. 7 and 8 (Factory
at Chorzów), 16 December 1927, PCIJ Series A, p. 13 ff., p. 26 (emphasis added).
91 As far as revision proceedings are concerned, the same point is raised by Akande (2017).
92 According to Salles (2014), “such preclusive character refers to the set of proceedings including
the judgments on preliminary objections and the merits, as well as applicable incidental proceedings, which could be regarded as being within the context of a single principal procedural relationship” (pp. 137–138, note 75).
93 PCIJ, Certain German Interests in Polish Upper Silesia (Merits), Judgment, 25 May 1926, PCIJ
Series A, p. 7 ff., pp. 42–43; Factory at Chorzów (Jurisdiction), Judgment, 26 July 1927, PCIJ
Series A, p. 9 ff.; Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów); Factory at
Chorzów (Merits), Judgment, 13 September 1928, PCIJ Series A, p. 17 ff. Cf. Cheng (1953),
p. 350 ff. According to this author, “when preliminary and incidental questions, which do not normally come within the competence of a tribunal, fall within its competence because they are necessary for the determination of the principal question, decision on these questions are not conclusive
and binding unless they are an essential condition to the judgment on the principal suit. Such
binding force is, however, limited to that judgment” (p. 353).
L. Marotti
among scholars and in certain interpretation of the ICJ case law. According to this
view, there is no doubt that determinations over issues not covered by the jurisdiction ratione materiae cannot be considered as binding the parties or as having a res
judicata effect. However, since decisions on incidental questions of merits are necessary in order to reach the principal determinations and constitute an indispensable
support for them, such incidental determinations keep a sort of “stabilizing” effect
in a given proceeding. As Salles put it, they “serve to stabilize the procedural relationship and may become definitive only in the sense that they cannot be overturned
in the course of the same proceeding […] [T]o the extent that decisions on preliminary objections beyond principal jurisdiction may be definitive, they remain circumscribed to the proceedings in which they are made”.
89
All in all, the crux of the problem is how one interprets the notion of “same
proceeding” or “same case”. In his dissenting opinion appended to the Chorzów
Factory Case (interpretation) judgment, Judge Anzilotti interestingly observed that
“[u]nder a generally accepted rule which is derived from the very conception of res
judicata, decisions on incidental or preliminary questions which have been rendered
with the sole object of adjudicating upon the Parties’ claims (incidenter tantum) are
not binding in another case”.
90
This opinion seems to indirectly suggest the binding
(or “stabilizing”) effect of incidental determinations in the same case. Yet one is still
left with the doubt as whether interpretation or also revision proceedings
91
pertain
to the same case.
92
In the judgments concerning the Chorzów Factory, where the
incidental (and external) question concerned the right of ownership, under municipal law, of German companies over the Factory,
93
the PCIJ referred to the pertinent
findings as “condition essential to the Court’s decision”, a concept that, as seen, was
subsequently endorsed by the ICJ in the Temple (interpretation) case. Thus, the PCIJ
and the ICJ apparently conceived interpretation proceedings as the “same case” for
the purposes of legal effects of incidental determinations. Admittedly this approach
seems to go too far, as also stated by Judges Owada, Bennouna and Gaja in the
abovementioned declaration.
89 Salles (2014), pp. 136–137.
90 Dissenting opinion of Judge Anzilotti, PCIJ, Interpretation of Judgments Nos. 7 and 8 (Factory
at Chorzów), 16 December 1927, PCIJ Series A, p. 13 ff., p. 26 (emphasis added).
91 As far as revision proceedings are concerned, the same point is raised by Akande (2017).
92 According to Salles (2014), “such preclusive character refers to the set of proceedings including
the judgments on preliminary objections and the merits, as well as applicable incidental proceedings, which could be regarded as being within the context of a single principal procedural relationship” (pp. 137–138, note 75).
93 PCIJ, Certain German Interests in Polish Upper Silesia (Merits), Judgment, 25 May 1926, PCIJ
Series A, p. 7 ff., pp. 42–43; Factory at Chorzów (Jurisdiction), Judgment, 26 July 1927, PCIJ
Series A, p. 9 ff.; Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów); Factory at
Chorzów (Merits), Judgment, 13 September 1928, PCIJ Series A, p. 17 ff. Cf. Cheng (1953),
p. 350 ff. According to this author, “when preliminary and incidental questions, which do not normally come within the competence of a tribunal, fall within its competence because they are necessary for the determination of the principal question, decision on these questions are not conclusive
and binding unless they are an essential condition to the judgment on the principal suit. Such
binding force is, however, limited to that judgment” (p. 353).
L. Marotti