Judicial Propriety and Mandate: Straying into Non-Essentials and Resolving the Dispute

In international adjudication, the choice of what is to be included in the reasoning of a judgment is a complex operation. While the rationale behind inserting obiter dicta in international judicial decisions is influenced by many factors, which are not necessarily legal in nature, this article will shed light on how the structural peculiarities of judicial organs, their mandates and institutional roles, influence that rationale. Two dispute settlement fora, which present different if not opposite features, will be the object of the investigation: the International Court of Justice (ICJ) and the organs established on the basis of the WTO Dispute Settlement Understanding (DSU). Rather than providing a new theoretical definition of what constitutes an obiter, the article will offer a taxonomy of “non-essential” dicta, thus identifying their nature and decoding the various purposes they pursue.