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B) Undue Delay

Undue delay in the administration of justice has been held to be a good reason for not exhausting local remedies. This exception may be closely related to the general exception based on obvious futility but it is better considered separately, as delay may not always signify that there is a clear indication that the alien or claimant will not succeed after a lapse of time. However, undue delay in the administration of justice is regarded as a denial of justice in itself and is certainly one which does not require any further exhaustion of remedies. In the El Oro Mining and Railway Co Case, ⁵⁶ it was held that a court's delay in taking action for nine years was sufficient to make it an ineffective remedy.

The delay necessary to make a remedy ineffective in each case will, of course, vary, it being impossible to lay down a specific time limit for all cases, since several circumstances including the volume of work involved in a thorough examination of the case are relevant. ⁵⁷ In the Interhandel Case, although ten years had already passed since the institution of the action, the court did not hold that there had been undue delay in the provision of a remedy. ⁵⁸ Dissenting Judge Armand-Ugon was of the view that, because a further unknown period would have to elapse before remedies were exhausted, ten years already having passed, such (p. 158) remedies were too slow and could not be called adequate or effective and could be dispensed with. ⁵⁹ There was clearly a difference of opinion on whether there had been undue delay in the case. However, although the court did not reject the view that delay can operate in the alien's favour, it is clear that it did not consider the lapse of time as sufficiently long and important to influence its decision.

While the principle that undue delay would operate in customary international law to exempt the claimant or applicant from exhausting remedies is undisputed (the reason behind it being that justice is being in some way denied the claimant or applicant, even though resort to remedies in the circumstances may not be obviously futile), a more difficult question is how undue delay is to be further defined. It is impossible to lay down a definite length of time that would constitute undue delay for all cases, and it would be imprudent to attempt to do so. The circumstances of each case would certainly be a determining factor. Much would depend on the judicial assessment of the situation in each case. As has been seen, in the Interhandel Case Judge Armand-Ugon differed from the court on the question of whether in the circumstances the time that had elapsed since remedies had initially been invoked was sufficient to constitute undue delay. Clearly, such matters as the nature of the wrong would be relevant, it being easier, for instance, to prescribe specific shorter time limits for violations of personal and civil rights than for injuries to property. The nature of the claimant may also be a pertinent factor, injuries to large corporations, which may give rise to more complicated issues than injuries to individuals, being subject to longer limits than injuries to individuals. In the ultimate analysis, such considerations can only provide guidelines, there being no hard and fast rules defining undue delays. ⁶⁰

Article 15(c) of 2006 the ILC's Draft Articles refers to undue delay as a ground for not requiring the alien to exhaust local remedies. The commentary concludes also that what is undue delay depends on the circumstances of each case. ⁶¹