Jurisdiction and Admissibility

Question 1

Define “Jurisdiction”

Answer 1

The competence/power to adjudicate.
2 questions:
(1) Whether the power exists at all
(2) What is the scope of the power

Question 2

Define “Admissibility”

Answer 2

The appropriate exercise of the power to adjudicate.

Question 3

How to distinguish between jurisdiction and admissibility?

Answer 3

Court lacks competence to hear dispute –> Objection to jurisdiction

Inappropriate for Court/Tribunal to rule on the claim –> Objection to admissibility

Question 4

Does the distinction between jurisdiction and admissibility matter?

Answer 4

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)

Question 5

When are objections to jurisdiction and admissibility brought?

Answer 5

Jurisdiction –> Preliminary Objections

Admissibility –> Preliminary Objections + Merit Stage

Question 6

Consent

Answer 6

• 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).

Question 7

Distinguishing between Access to Adjudication and Consent to Adjudication

Answer 7

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.

Question 8

4 methods of consent at ICJ

Answer 8

(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)

Question 9

Scope of Jurisdiction is Divided into 3 parts

Answer 9

(1) Subject Matter Jurisdiction
(2) Personal Jurisdiction
(3) Temporal Jurisdiction

Question 10

Scope of Jurisdiction

ICJ - Subject Matter Jurisdiction

Answer 10

Limited to legal disputes (Article 36)

Question 11

Scope of Jurisdiction

ICJ - Personal Jurisdiction

Answer 11

Limited to States (Article 34)

Question 12

Scope of Jurisdiction

ICJ - Temporal Jurisdiction

Answer 12

No temporal jurisdiction.

Optional clause declarations may have time limits.

Question 13

Scope of Jurisdiction

UNCLOS - Personal Jurisdiction

Answer 13

Mainly States but also other actors in seabed dispute chambers (Article 291)

Question 14

Scope of Jurisdiction

ICSID - Subject Matter Jurisdiction

Answer 14

Article 25

Question 15

Scope of Jurisdiction

ICSID - Subject Matter Jurisdiction

Answer 15

Article 25

Question 16

Scope of Jurisdiction

ICSID - Personal Jurisdiction

Answer 16

States and Investors (Article 25)

Question 17

Scope of Jurisdiction

ICSID - Temporal Jurisdiction

Answer 17

Investments made before BIT would fail for temporal jurisdiction.

Question 18

Scope of Jurisdiction

WTO - Subject Matter Jurisdiction

Answer 18

DSU Art 1

Appendices 1 and 2

Question 19

Scope of Jurisdiction

WTO - Personal Jurisdiction

Answer 19

DSU Art 1

Includes entities which are not States (Taiwan and EU)

Question 20

Admissibility

What are the three main claims you can make about admissibility?

Answer 20

(1) Mootness
(2) Necessary Parties (Monetary Gold Principle)
(3) Standing

Question 21

Admissibility

MOOTNESS

Answer 21

• 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.

Question 22

Burkina Faso/Niger case

Answer 22

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.

Question 23

Admissibility

NECESSARY PARTIES

Answer 23

• 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.

Question 24

Monetary Gold (Italy v France, US, UK) case

Answer 24

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

Question 25

East Timor (Portugal v Australia) case

Answer 25

In The East Timor case, the Court applied the Monetary Gold principle.

Facts: