3 : Jurisdiction and admissibility Flashcards
What is jurisdiction ?
the power/competence to adjudicate
2 necessary inquiries regarding jurisdiction?
1/ existence of the power
2/ scope of the power
What is admissibility ?
the appropriate exercise of the power to adjudicate
Who generally brings objections regarding jurisdiction/admissibility ?
respondent
When can issues of jurisdiction/admissibility be dealt with ? (2)
1/ usually, preliminary objections stage
2/ but also possible at the merits stage
How to distinguish btwn jurisdiction/admissibility ? (2)
1/ if lack of competence to hear the dispute => jurisdiction
2/ if inappropriate to rule on the claim => admissibility
( ! ) there are still disagreements on these matters
Does the distinction btwn jurisdiction/admissibility matter ? (2)
1/ matters in field of investor-State arbitration bc only jurisdictional decisions can be reviewed by annulment committees (Art 52 ICSID)
2/ matters less in front of ICJ bc no review of ICJ judgments
What role does consent play regarding the existence of adjudicatory power ? (3)
1/ foundational principle as it is the basis of adjudicatory power
2/ States cannot be forced to appear before a court/tribunal against their will
3/ in practice, States are thus very careful in consenting to legal forms of DS
Explain the distinction btwn access and consent to adjudication ? (3)
1/ State access to a DS body is usually possible by virtue of membership in an IO
2/ but the possibility of such access does not entail consent
3/ some exceptions do however exist (e.g. DS under UNCLOS and WTO Agreement)
What are the main methods of consent to jurisdiction ? (4)
1/ special agreement (compromis)
2/ compromissory clause
3/ Optional Clause declaration (ICJ specific)
4/ forum prorogatum (ICJ specific)
Definition of special agreement/compromis (5)
1/ binding agreement
2/ concluded btwn parties
3/ by which they agree to pursue litigation in some form
4/ and this after the dispute has arisen (retrospective)
5/ has been implied into Art 36(1) ICJ Statute
Advantages of special agreements ? (4)
1/ parties can specify the particular legal issues they want the court/tribunal to decide
2/ parties can decide what body of law they want the court/tribunal to apply
3/ parties can also request a chamber in front of the ICJ
4/ parties can specifically ask the ICJ to appoint expert assistance
=> high degree of control
Potential problems that can arise regarding special agreements ? (3)
1/ dispute over whether the parties indeed agreed to refer the case
2/ dispute over how the court/tribunal can be seized of a case under the agreement (Qatar/Bahrain)
3/ no exercise of ICJ jurisdiction if a third State not party before the Court has a legal interest which forms the very subject matter of the case (Monetary Gold)
Definition of compromissory clauses ? (3)
1/ provisions in treaties
2/ that provide for the settlement of disputes
3/ by a specific institution/selection of institutions
Characteristics of compromissory clauses ? (4)
1/ prospective
2/ commonly contain conditions
3/ States often enter reservations to compromissory clauses
4/ in practice, compromissory clauses are often invoked by surprise, which can lead to objections to jurisdiction/admissibility at the preliminary stage
Legal basis for Optional Clause declarations ?
Article 36(2) ICJ Statute
Characteristics of Optional Clause declarations ? (5)
1/ can be filed by UN members at any point in time
2/ amends can be made
3/ prospective form of consent
4/ can contain reservations
5/ reservations operate reciprocally (Interhandel)
Characteristics of forum prorogatum ? (5)
1/ option of last resort when no other basis of consent
2/ acceptance of ICJ jurisdiction on ad hoc manner
3/ respondent State must explicitly consent + consent must be clearly deduced from its conduct/statements (Djibouti/France)
4/ usually does not succeed
5/ Art 38(5) ICJ Rules
Methods of consent to ICSID arbitration ? (3)
1/ contract btwn host State/investor
2/ domestic legislation
3/ BIT
3 aspects to take into account regarding the scope of jurisdiction ?
1/ subject matter jurisdiction
2/ personal jurisdiction
3/ temporal jurisdiction
Subject matter jurisdiction of ICJ, UNCLOS, ICSID, WTO ?
1/ ICJ : legal disputes (Art 36 ICJ Statute)
2/ UNCLOS : disputes on interpretation & application of UNCLOS or of other related instruments (but also limitations on compulsory jurisdiction) (Arts 288, 297, 298 UNCLOS)
3/ ICSID : investment disputes (Art 25 ICSID Conv)
4/ WTO : disputes that arise under all the WTO covered agreements (Art 1 DSU)
Personal jurisdiction ICJ, UNCLOS, ICSID, WTO ?
1/ ICJ : States (Art 34 ICJ Statute)
2/ UNCLOS : mainly States (Art 291), but also other actors in front of Sea-Bed Disputes chamber
3/ ICSID : contracting State and investor of another contracting State (Art 25 ICSID Conv)
4/ WTO : all WTO members (Art 1 DSU)
Temporal jurisdiction ICJ and other tribunals/courts?
1/ ICJ : no temporal limitations
2/ others (ICSID, UNCLOS, WTO) :
a) depends on when obligations came into force => if breach before application of obligations, then outside of temporal jurisdiction
b) could also be a compromissory clause imposing time limitations
Main grounds of inadmissibility ? (3)
1/ issues regarding judicial function, i.e. mootness (Burkina Faso/Niger)
2/ necessary third parties (Monetary Gold)
3/ standing (South West Africa)
Different grounds of inadmissibility before ICJ ? (5)
1/ hypothetical nature of case (Northern Cameroons)
2/ mootness (Nuclear Tests)
3/ applicant lacks legal interest in the subject matter (South West Africa)
4/ legal interest of third State (Monetary Gold)
5/ other examples
How to determine whether a case is moot ? (4)
1/ actual conflict of interest btwn the parties
2/ judgment must have actual consequences regulating the legal rights of the parties
3/ function of ICJ is to remove legal uncertainty in relations btwn parties => when this function is no longer served, refusal to exercise jurisdiction
4/ Burkina Faso/Niger
Conditions for inadmissibility on the grounds of absence of a necessary third party ? (2)
1/ Court must have to rule on rights & obligations of a third State which has not consented to its jurisdiction
2/ third State’s rights & obligations must be the very subject matter of the proceedings
What case established the principle of inadmissibility on the grounds of absence of necessary third State ?
ICJ, “Monetary Gold Removed from Rome in 1943” (1954)
How to determine whether a State has standing ? (2)
1/ when States represent their own rights & legal interests, as well as the ones of their nationals, they have standing
2/ however, whether States have standing to complain about breaches of IL that do not directly affect them has been unclear and controversial
-> see "South West Africa" (Ethiopia and Liberia v South Africa), 1966
Aftermath of “South West Africa” (Ethiopia and Liberia v South Africa), 1966 case ? (3)
1/ impact on ICJ’s credibility and legitimacy as institution, esp. in the views of developing States
2/ “Barcelona Traction” case (1970) : all States have a legal interest in the protection of obligations erga omnes
3/ more recently, ICJ held States can sometimes have standing even though their legal interests are not directly injured
What are examples of cases brought to the ICJ by special agreement ? (4)
1/ North Sea Continental Shelf
2/ Gulf of Maine
3/ Frontier Dispute (Burkina Faso/Mali)
4/ Gabcikovo-Nagymaros
Case in which parties asked ICJ to specify a particular legal issue ?
North Sea Continental Shelf
=> what principles and rules of IL govern the establishment of the continental shelf ?
Case in which parties asked ICJ to apply specific legal rules ?
Frontier Dispute (BF/MALI)
=> application of principle of intangibility of frontiers inherited from colonization + principle of uti possidetis juris
Case in which parties requested a chamber before ICJ ?
Gulf of Maine (CAN/US)
