'Mirages of an Intellectual Dreamland'? Ratio, Obiter and the Textualization of International Precedent

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  • Niccolo Ridi
In recent years, various actors—states, judges and commentators alike—have taken issue with the way international adjudicators have approached precedent. Criticism has been levelled, in particular, to the phenomenon of ‘obiter dicta’ (observations that, though not necessary for the decision, are nonetheless included in it), which have been found to amount to a symptom of bad decision-making or, from the perspective of the adjudicator using them, bad precedent following. This article addresses this debate by resituating the issue within a more grounded discussion of the theory of precedent in international adjudication, providing an in-depth theoretical and empirical analysis of the practice, and seeks to frame it within in the broader phenomenon of ‘textualization’. By doing so, it strives to clarify the use, authority and ultimate function of obiter dicta, as well as of precedent in general, in international adjudication.
Original languageEnglish
JournalJournal of International Dispute Settlement
Volume10
Issue number3
Pages (from-to)361-395
Number of pages35
ISSN2040-3593
DOIs
Publication statusPublished - Sep 2019

ID: 252996129