The Obligation Not to Litigate in International and National Law

Abstract

The article demonstrates the general problem of the lack of universal legal criteria for the admissibility of agreements to waive claims in national courts and international tribunals. In the context of a global change in the perception of the dispute resolution system at the national and international levels, pre-trial and out-of-trial settlement agreements will inevitably become widespread, and soon, like plea bargains once in American law, will turn from the exception to the rule into the justice system itself. Future interstate agreements on the settlement of conflicts, which we are witnessing today, will not be able to do without conditions on the mutual waiver of claims to national and international tribunals (both the parties to the agreement and all “their” residents). The basis of such agreements is to give legal force to the final waivers contained therein. These refusals, which date back to the times of Roman law, can no longer be shamefully turned a blind eye, or angrily rejected, considering them a threat to legal foundations. Using historical examples, the practice of international and national tribunals, a mechanism for regulating waivers of claims and demands is modelled in the paper, which takes into account the provisions of private and public, material and procedural, national and international law, the need to ensure a balance, on the one hand, the protection of fundamental rights and freedoms, including the right of access to court, and on the other hand, freedom of contract.