Jurisdiction and Admissibility Flashcards
Define “Jurisdiction”
The competence/power to adjudicate.
2 questions:
(1) Whether the power exists at all
(2) What is the scope of the power
Define “Admissibility”
The appropriate exercise of the power to adjudicate.
How to distinguish between jurisdiction and admissibility?
Court lacks competence to hear dispute –> Objection to jurisdiction
Inappropriate for Court/Tribunal to rule on the claim –> Objection to admissibility
Does the distinction between jurisdiction and admissibility matter?
Both yes and no.
ICJ –> Isn’t clear on difference between jurisdiction and admissibility.
ICSID –> Difference matters because only jurisdiction can be reviewed by annulment committees (Article 52 ICSID)
When are objections to jurisdiction and admissibility brought?
Jurisdiction –> Preliminary Objections
Admissibility –> Preliminary Objections + Merit Stage
Consent
- Consent is important in IDS because of State Sovereignty
- Consent is the basis of adjudicatory power
- States can’t be forced to turn up against their will
(Forcing a State to settle a dispute would be pointless if enforcement of judgements could not happen (compliance would be low).
Distinguishing between Access to Adjudication and Consent to Adjudication
Access to Adjudication –> The manner in which States have access to an adjudication body (how States have access to an adjudication body).
eg. States have access to ICJ by virtue of UN Membership
Access to PCA through PCA Membership.
Access to investor-state arbitration through ICSID convention.
Consent to Adjudication:
The method by which State accepts the Court’s ability to adjudicate an issue.
4 methods of consent at ICJ
(1) Special Agreement (Article 36(1) but not explicit)
(2) Compromissory Clauses (Article 36(1) Not explicit. “all matters specifically provided for in treaties and conventions in force”
(3) Optional Clause Declaration (Article 36(2))
(4) Forum Prorogatum (Article 38(5) ICJ Rules)
Scope of Jurisdiction is Divided into 3 parts
(1) Subject Matter Jurisdiction
(2) Personal Jurisdiction
(3) Temporal Jurisdiction
Scope of Jurisdiction
ICJ - Subject Matter Jurisdiction
Limited to legal disputes (Article 36)
Scope of Jurisdiction
ICJ - Personal Jurisdiction
Limited to States (Article 34)
Scope of Jurisdiction
ICJ - Temporal Jurisdiction
No temporal jurisdiction.
Optional clause declarations may have time limits.
Scope of Jurisdiction
UNCLOS - Personal Jurisdiction
Mainly States but also other actors in seabed dispute chambers (Article 291)
Scope of Jurisdiction
ICSID - Subject Matter Jurisdiction
Article 25
Scope of Jurisdiction
ICSID - Subject Matter Jurisdiction
Article 25
Scope of Jurisdiction
ICSID - Personal Jurisdiction
States and Investors (Article 25)
Scope of Jurisdiction
ICSID - Temporal Jurisdiction
Investments made before BIT would fail for temporal jurisdiction.
Scope of Jurisdiction
WTO - Subject Matter Jurisdiction
DSU Art 1
Appendices 1 and 2
Scope of Jurisdiction
WTO - Personal Jurisdiction
DSU Art 1
Includes entities which are not States (Taiwan and EU)
Admissibility
What are the three main claims you can make about admissibility?
(1) Mootness
(2) Necessary Parties (Monetary Gold Principle)
(3) Standing
Admissibility
MOOTNESS
- Court should only adjudicate on cases involving an actual dispute between the parties.
- The judgement or award should have practical consequences that impact the actual rights and obligations of the parties.
-Burkina Faso/Niger (Special Agreement case)
Burkina Faso asked the Court to declare that boundaries followed an agreed boundary line. Wanted this in operative part of judgement.
Held:
Court considered this moot so didn’t exercise its jurisdiction.
Burkina Faso/Niger case
Burkina Faso/Niger
-Special Agreement Case
Facts:
- Burkina Faso asked the Court to declare that boundaries followed an agreed boundary line.
- Wanted this in the operative part of the judgement.
Issue:
Was wanting an agreed boundary line in the operative part of a judgement admissible?
Held:
Court considered this moot so didn’t exercise its jurisdiction.
Admissibility
NECESSARY PARTIES
- Idea that applicant and respondent have both consented but a necessary third party exists who hasn’t consented so claim is inadmissible.
KEY:
Third party must form the subject matter of the proceedings. They cannot merely be affected.
Monetary Gold case (Italy v France, UK, US)
-Court couldn’t decide on Italy’s claim because to do so would require it to rule on Albania’s disputes and Albania hadn’t consented.
Monetary Gold (Italy v France, US, UK) case
Monetary Gold (Italy v France, US, UK) case
Facts:
- WW2 –> Germany seised gold in an Italian bank.
- Allied powers claimed some of the gold was their’s because of outstanding claims with Albania
- Italy took case to ICJ
Issue:
Was Albania a necessary 3rd party?
Held:
Court couldn’t decide on Italy’s claim because to do so would require it to rule on Albania’s disputes and Albania hadn’t consented.
East Timor (Portugal v Australia) –> Monetary Gold applied by Court
