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International Dispute Settlement > 3 : Jurisdiction and admissibility > Flashcards

3 : Jurisdiction and admissibility Flashcards

1
Q

What is jurisdiction ?

A

the power/competence to adjudicate

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2
Q

2 necessary inquiries regarding jurisdiction?

A

1/ existence of the power

2/ scope of the power

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3
Q

What is admissibility ?

A

the appropriate exercise of the power to adjudicate

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4
Q

Who generally brings objections regarding jurisdiction/admissibility ?

A

respondent

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5
Q

When can issues of jurisdiction/admissibility be dealt with ? (2)

A

1/ usually, preliminary objections stage

2/ but also possible at the merits stage

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6
Q

How to distinguish btwn jurisdiction/admissibility ? (2)

A

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

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7
Q

Does the distinction btwn jurisdiction/admissibility matter ? (2)

A

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

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8
Q

What role does consent play regarding the existence of adjudicatory power ? (3)

A

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

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9
Q

Explain the distinction btwn access and consent to adjudication ? (3)

A

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)

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10
Q

What are the main methods of consent to jurisdiction ? (4)

A

1/ special agreement (compromis)

2/ compromissory clause

3/ Optional Clause declaration (ICJ specific)

4/ forum prorogatum (ICJ specific)

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11
Q

Definition of special agreement/compromis (5)

A

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

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12
Q

Advantages of special agreements ? (4)

A

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

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13
Q

Potential problems that can arise regarding special agreements ? (3)

A

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)

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14
Q

Definition of compromissory clauses ? (3)

A

1/ provisions in treaties

2/ that provide for the settlement of disputes

3/ by a specific institution/selection of institutions

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15
Q

Characteristics of compromissory clauses ? (4)

A

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

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16
Q

Legal basis for Optional Clause declarations ?

A

Article 36(2) ICJ Statute

17
Q

Characteristics of Optional Clause declarations ? (5)

A

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)

18
Q

Characteristics of forum prorogatum ? (5)

A

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

19
Q

Methods of consent to ICSID arbitration ? (3)

A

1/ contract btwn host State/investor

2/ domestic legislation

3/ BIT

20
Q

3 aspects to take into account regarding the scope of jurisdiction ?

A

1/ subject matter jurisdiction

2/ personal jurisdiction

3/ temporal jurisdiction

21
Q

Subject matter jurisdiction of ICJ, UNCLOS, ICSID, WTO ?

A

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)

22
Q

Personal jurisdiction ICJ, UNCLOS, ICSID, WTO ?

A

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)

23
Q

Temporal jurisdiction ICJ and other tribunals/courts?

A

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

24
Q

Main grounds of inadmissibility ? (3)

A

1/ issues regarding judicial function, i.e. mootness (Burkina Faso/Niger)

2/ necessary third parties (Monetary Gold)

3/ standing (South West Africa)

25
Q

Different grounds of inadmissibility before ICJ ? (5)

A

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

26
Q

How to determine whether a case is moot ? (4)

A

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

27
Q

Conditions for inadmissibility on the grounds of absence of a necessary third party ? (2)

A

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

28
Q

What case established the principle of inadmissibility on the grounds of absence of necessary third State ?

A

ICJ, “Monetary Gold Removed from Rome in 1943” (1954)

29
Q

How to determine whether a State has standing ? (2)

A

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
30
Q

Aftermath of “South West Africa” (Ethiopia and Liberia v South Africa), 1966 case ? (3)

A

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

31
Q

What are examples of cases brought to the ICJ by special agreement ? (4)

A

1/ North Sea Continental Shelf

2/ Gulf of Maine

3/ Frontier Dispute (Burkina Faso/Mali)

4/ Gabcikovo-Nagymaros

32
Q

Case in which parties asked ICJ to specify a particular legal issue ?

A

North Sea Continental Shelf

=> what principles and rules of IL govern the establishment of the continental shelf ?

33
Q

Case in which parties asked ICJ to apply specific legal rules ?

A

Frontier Dispute (BF/MALI)

=> application of principle of intangibility of frontiers inherited from colonization + principle of uti possidetis juris

34
Q

Case in which parties requested a chamber before ICJ ?

A

Gulf of Maine (CAN/US)

International Dispute Settlement (7 decks)

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