I. Conceptual distinction between admissibility and jurisdiction
Challenges to admissibility of claims in investment arbitration often overlap with challenges to jurisdiction. A discussion on the admissibility of claims therefore necessarily entails an appraisal of the inter-relationship between the concepts of jurisdiction and admissibility in investment arbitration.
A. Defining admissibility and jurisdiction
However, tribunals3 and academics4 that do recognise a distinction between jurisdiction and admissibility generally concur that jurisdiction pertains to the ability or power of an arbitral tribunal to hear a claim, whereas admissibility relates to the characteristics of a particular claim. Accordingly, a tribunal would have to decide, as a primary issue, whether it has jurisdiction, before determining whether a particular claim is admissible.5 It thus follows that, once a tribunal has upheld a jurisdictional objection, it would dismiss the case and consequently not decide upon objections to admissibility.6
B. Relevance of the distinction between admissibility and jurisdiction
Distinguishing between matters of jurisdiction and admissibility is important, as each carries different consequences.7 For example:
II. Overlap in objections to jurisdiction and admissibility in practice
A number of issues that most commonly arise in the context of admissibility have been characterised interchangeably as issues of jurisdiction and admissibility, depending on the circumstances of the case.17 For instance:
Finally, it bears mentioning that in exceptional circumstances, tribunals may treat issues that are usually examined at the merits stage as a question of admissibility. For instance, an expropriation claim, which is normally dealt with at the merits stage, has been considered as a question of admissibility when it was evident that there was no expropriation.42
III. Examining of objections to admissibility by tribunals
In deciding issues relating to the admissibility of a claim, tribunals give due consideration to various factors, such as whether the applicable treaty contains any express stipulations relevant to admissibility,43 the factual circumstances relevant to the claim, as well as to the need to ensure the proper administration of justice.44
Tribunals have found claims to inadmissible on various grounds, such as:
Similarly, objections to admissibility have been unsuccessful for a myriad of reasons,50 such as:
IV. The effect of a declaration of inadmissibility
In circumstances where the inadmissibility of a claim is linked to conditions of consent to arbitration, a tribunal will be unable to exercise jurisdiction over the dispute.54
Where a tribunal finds that a claim that is within its jurisdiction is inadmissible, a declaration of inadmissibility will normally result in a dismissal of the claim on the merits;55 nevertheless, such a dismissal would be without prejudice to the right of the claimant to initiate new proceedings upon removing the obstacle to admissibility.56 As has been mentioned above at paragraph 4b), in deciding whether to dismiss a claim as inadmissible, tribunals have considered whether it would, in light of the circumstances of the dispute, be appropriate to give the parties an opportunity to remove the obstacle to admissibility.57
Finally, it is recalled from paragraph 4 above, that although a lack of jurisdiction or admissibility may lead to the same result, i.e. the refusal of a tribunal to hear the case, this refusal will carry different consequences, depending on whether it is based on a lack of jurisdiction or a finding of inadmissibility.58
Paulsson, J., Jurisdiction and Admissibility, in Aksen, G. (ed.), Global Reflections on International Law, Commerce and Dispute Resolution, Liber Amicorum in honour of Robert Briner, 2005, pp. 601-617.
Brownlie, I., Principles of Public International Law, 7th ed., 2008.
Heiskanen, V., Ménage à trois? Jurisdiction, Admissibility and Competence in Investment Treaty Arbitration, ICSID Review-Foreign Investment Law Journal, 2013, pp. 1-16.
Wehland, H., Jurisdiction and Admissibility in Proceedings under the ICSID Convention and the ICSID Additional Facility Rules, in Baltag, C. (ed.), ICSID Convention after 50 Years: Unsettled Issues, 2017, pp. 227-248.
Fontanelli, F. and Tanzi, A., Jurisdiction and Admissibility in Investment Arbitration. A View from the Bridge at the Practice, The Law and Practice of International Courts and Tribunals, 2017, pp. 3-20.
Santacroce, F.G., Navigating the Troubled Waters Between Jurisdiction and Admissibility: an Analysis of Which Law Should Govern Characterization of Preliminary Issues in International Arbitration, Arbitration International, 2017, pp. 539-570.
Calamita, N.J. and Sardinha, E., The Bifurcation of Jurisdictional and Admissibility Objections in Investor-State Arbitration, The Law and Practice of International Courts and Tribunals, 2017, pp. 44-70.
Pauker, S.A., Admissibility of Claims in Investment Treaty Arbitration, Arbitration International, 2018, pp. 1-78.
Fouchard Papaefstratiou, A. and Shiroor, T., Investors’ Obligation to Comply with Domestic Law, OGEL/TDM Special Issue on Foreign Direct Investment Operations and Investment Disputes in the African Extractive Sector: Challenges and Opportunities for Africa’s Growth & Development, Transnational Dispute Management, 2019.
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