Some remarks on Veijo Heiskanen's Note: 'Menage a trois? Jurisdiction, Admissibility and Competence in Investment Treaty Arbitration'

Abstract

In this note some remarks on Veijo Heiskanen’s very interesting Note will be made. It will be argued that the relationships between jurisdiction, admissibility and competence are possibly clearer than the conclusions reached by him might suggest. On the one hand, in the case of the terms ‘jurisdiction’ and ‘competence’, the importance of the qualifiers ‘of the Centre’ and ‘of the Tribunal’ will be underlined. This importance is due to the fact that ICSID Tribunals are ad hoc Tribunals established within a framework convention. While the concept of ‘jurisdiction of the Centre’ is related to the ICSID Convention, the concept of ‘competence of the Tribunal’ is related to an arbitration agreement. Yet in ICSID investment treaty arbitration both concepts are necessarily linked. On the other hand, issues concerning ‘admissibility’ are to be found outside the ICSID Convention. They are therefore equally relevant, regardless of whether the proceeding is an ICSID or a non-ICSID arbitration. Issues of ‘admissibility’, however, should be distinguished from jurisdictional elements, which are essentialia negotii of the ICSID arbitration agreement, and from conditions of the host State’s consent to arbitration, such as genuine requirements to exhaust local remedies.