Jurisdictional Objections Research Articles

Why states refuse to participate in judicial proceedings: uncovering key reasons and historical evolution

Abstract Over the past decade, non-participation in inter-state cases has been on the rise. While previous research on the topic has centred around the impact of states' non-participation, this article delves into the reasons behind non-participation. By analysing states’ public statements, diplomatic documents, informal correspondence with adjudicators, as well as commentators’ views, this article describes the evolution of reasons for non-participation. The research reveals that over time, more states refer to jurisdictional objections, doubts about the impartiality of adjudicators and concerns about the strategic use of judicial proceedings for achieving political goals as reasons for non-participation. Moreover, the reasons behind non-participation have become increasingly diverse. These findings suggest a growing sense of distrust and suspicion towards the use of international courts and tribunals to resolve inter-state disputes.

Green Power K/S and SCE Solar Don Benito APS v Kingdom of Spain: How EU Law Allegedly Trumps International Investment Law

The Green Power arbitral tribunal is the first tribunal ever (and so far, the only one) that accepted the EU law jurisdictional objections raised by an EU Member State. For this reason alone, this decision is historic. Instead of adopting a public international law perspective for determining the question whether it has jurisdiction, the arbitral tribunal adopted an European law perspective and therefore considered itself bound by the CJEU jurisprudence regarding Achmea and Komstroy. With its decision, which came out only a week before the Contracting Parties to the ect concluded their modernisation negotiations in which the EU and its Member States agreed to carve out the arbitration provision for intra-EU ECT disputes, the arbitral tribunal showed that it had a good sense of what was to come in any event. The consequences of all this are that European investors will be stuck with the domestic courts of the Member States and the European Court of Human Rights – with all their limitations.

Chinese court rules for the first time that it has jurisdiction over SEP global licensing disputes

Abstract OPPO v Sharp Corporation: Jurisdictional Objection in Global Rate Setting of Standard Essential Patent ((2020) Zui Gao Fa Zhi Min Xia Zhong No. 517), 19 August 2021 The Intellectual Property Court of the Supreme People’s Court (SPC) of China ruled that Chinese courts have jurisdiction over global licensing terms disputes for standard essential patent (SEP) in the communications sector.

Raiffeisen Bank International AG V Croatia, ICSID Case No arb/17/34

In September 2020, an ICSID tribunal rendered its decision on the Respondent’s Jurisdictional Objections in Raiffeisen v Croatia, two years after the ICSID Chairman of the Administrative Council rejected Croatia’s application to disqualify Dr. Stanimir Alexandrov as a member of the tribunal. The decision on the Respondent’s Jurisdictional Objections concerns the interpretation of the Austria- Croatia bit and its compatibility with the EU acquis. This case- note addresses both the decision on the Respondent’s Jurisdictional Objections and the Chairman of the Administrative Council’s decision on the proposed disqualification of Dr. Alexandrov. In so doing, it focuses on three key issues: the selection and conduct of the arbitrator that gave rise to disqualification, and the role played by ICSID in the process; the interrelation between investment treaties, EU Law, and EU Member States; and the implementation of the vclt for termination of treaties covering similar subject matter.

Here Comes Doomsday … Or Does It? – Implications of Achmea on Intra-EU Investment Arbitration in Light of Recent Case Law

This article follows recent developments in the intra- EU investment arbitration case-law after the publication of the CJEU’s judgment in Slovak Republic v Achmea BV (Achmea judgment) and the subsequent signing of the so-called ‘Achmea declarations’ on 15 and 16 January 2019 and the Agreement for the Termination of Bilateral Investment Treaties Between the EU Member States on 5 May 2020 (Termination Agreement). Although the decisions of investment tribunals analysed in this article show that all tribunals uniformly dismissed the jurisdictional objection of the respondent States based on the cjeu’s conclusions in the Achmea judgment, this article explores the very different reasons adopted by the tribunals when doing so, and the potential challenges ahead, especially once the Termination Agreement enters into ‘full’ force. Based on different approaches taken by the tribunals with regard to the applicability of the Achmea judgment, this article addresses its implications separately for ect arbitrations, icsid arbitrations and bit arbitrations, while drawing attention to the important similarities and differences between the decisions.

Jurisdictional Challenges and Institutional Novelties – Procedural Developments in Law of the Sea Dispute Settlement in 2020

Abstract In 2020, law of the sea tribunals rendered one decision on jurisdiction and decided one case on the merits. First, the arbitral tribunal in the Azov Sea and Kerch Strait dispute dismissed the jurisdictional objections raised by the Russian Federation and thus will proceed to hear the merits of Ukraine’s claims. Second, the arbitral tribunal in the Enrica Lexie Incident case found, after upholding its jurisdiction in relation to the dispute before it, that the Italian marines who had shot an Indian fisherman in India’s Exclusive Economic Zone were entitled to immunity under international law and that Italy had breached certain provisions of the United Nations Convention on the Law of the Sea (UNCLOS). These two arbitral awards have confirmed and developed certain trends in the jurisprudence of law of the sea tribunals. In addition, a novelty in 2020 was the conclusion of a Model Agreement between Singapore and the International Tribunal for the Law of the Sea (ITLOS), for the latter to be able to discharge its judicial business in Singapore. Last, the Meeting of the States Parties to UNCLOS elected five new members of ITLOS and re-elected two.

Raiffeisen Bank International AG v Croatia, ICSID Case No ARB/17/34

In September 2020, an ICSID tribunal rendered its decision on the Respondent’s Jurisdictional Objections in Raiffeisen v Croatia, two years after the ICSID Chairman of the Administrative Council rejected Croatia’s application to disqualify Dr. Stanimir Alexandrov as a member of the tribunal. The decision on the Respondent’s Jurisdictional Objections concerns the interpretation of the Austria-Croatia BIT and its compatibility with the EU acquis. This case-note addresses both the decision on the Respondent’s Jurisdictional Objections and the Chairman of the Administrative Council’s decision on the proposed disqualification of Dr. Alexandrov. In so doing, it focuses on three key issues: the selection and conduct of the arbitrator that gave rise to disqualification, and the role played by ICSID in the process; the interrelation between investment treaties, EU Law, and EU Member States; and the implementation of the VCLT for termination of treaties covering similar subject matter.

An apple of discord: pre-trial procedure in international justice and in the jurisprudence of the EAEU Court

The present article assesses the approaches elaborated in the decisions of international courts and tribunals as well as in the doctrine of international law towards the legal value of pre-trial requirements. The role and significance of such requirements started to increase since almost in any case submitted to a court or arbitration the respondent states try firstly to question either jurisdiction of the court or tribunal in the specific case or admissibility of the claim. As a rule, such objections are based on allegations that the claimant failed to comply with pre-trial requirements such as direct negotiations or prior notification of the respondent about the claimant’s intention to submit the dispute for compulsory adjudication. Despite an absence of customary rule of international law about the necessity and precise content of such pre-trial requirements, international treaties stipulating compulsory dispute adjudication almost by default contain such pre-trial requirements of different kind and combination. Current jurisprudence of international courts and tribunals (International Court of Justice, Court of Eurasian Economic Union, and investment arbitration tribunals) dealing with such objections by the respondents reveals a lack of consensus in the treatment of pre-trial requirements either as jurisdictional or admissibility objections. The commentators also differ on assessment of the role and normative significance of pre-trial requirement. Nevertheless, the authors view such requirements as one of jurisdictional characteristics based on the consent of the states to limits their sovereignty by agreeing in advance in the applicable international treaty to submit any future disputes for compulsory adjudication subject to stipulated limitations and conditions, for instance, necessity for a claimant to follow certain pre-trial requirements. A claimant’s failure to follow such requirements should be considered as sufficient ground for a court or tribunal handling such claim, to declare a lack of its jurisdiction in the case and to refuse to consider the merits of the case.

Here Comes Doomsday … Or Does It? – Implications of Achmea on Intra-EU Investment Arbitration in Light of Recent Case Law

This article follows recent developments in the intra-EU investment arbitration case-law after the publication of the CJEU’s judgment in Slovak Republic v Achmea BV (Achmea judgment) and the subsequent signing of the so-called ‘Achmea declarations’ on 15 and 16 January 2019 and the Agreement for the Termination of Bilateral Investment Treaties Between the EU Member States on 5 May 2020 (Termination Agreement). Although the decisions of investment tribunals analysed in this article show that all tribunals uniformly dismissed the jurisdictional objection of the respondent States based on the CJEU’s conclusions in the Achmea judgment, this article explores the very different reasons adopted by the tribunals when doing so, and the potential challenges ahead, especially once the Termination Agreement enters into ‘full’ force. Based on different approaches taken by the tribunals with regard to the applicability of the Achmea judgment, this article addresses its implications separately for ECT arbitrations, ICSID arbitrations and BIT arbitrations, while drawing attention to the important similarities and differences between the decisions.

To boycott proceedings or not? Recourse against arbitral awards on jurisdictional grounds by different categories of respondents under the Model Law

Abstract The remedies that award debtors have under Articles 16(3), 34 and 36 of the Model Law, and more critically the inter-relationship between those remedies, has attracted much debate. Yet there is a dearth of analysis on how the availability of each remedy may differ according to the award debtor’s degree of participation in the arbitral process. Such analysis carries significant practical value for parties in considering whether and to what extent they should participate in any arbitral process when they harbour jurisdictional objections. This article distils Singapore’s experience, describing how Singapore has implemented the ‘choice of remedies’ principle for participating, non-participating, and boycotting respondents with jurisdictional objections, with comparative observations from Hong Kong, England, and New Zealand. This article shows that the ultimate matrix of remedies chosen by Singapore is far from straightforward. The question whether a respondent has participated in the arbitral process is also a vexed one. The analysis in this article begs the question whether in pursuit of harmonization future reforms to the Model Law ought to be considered.

Jurisdiction and admissibility: a case study

Abstract Arbitrators cannot decide cases if they do not have jurisdiction. For this reason, a challenge to jurisdiction may prompt judicial intervention. Most national courts, however, limit their intervention to question of jurisdiction and do not interfere in the arbitral process if the objection is merely one of admissibility. The distinction between jurisdiction and admissibility is a valuable tool for differentiating when judicial intervention is appropriate and when it is not. The problem is that some national courts generally conflate the concept of jurisdiction, which may properly be the basis for such intervention, with admissibility issues, which should be referred to the tribunal to decide. As a case study, this article focuses on the conflation by Nigerian courts leading to an overly expansive allocation of authority to courts to make initial rulings, which in turn is abused by parties and undermines the efficiency of arbitration in Nigeria. To address the problem, this article proposes that Nigerian courts adopt the distinction between jurisdictional and admissibility objections in international arbitration. This distinction, while not perfect, can promote efficacy in arbitration seated in Nigeria. Adopting the distinction between admissibility and jurisdiction will enable Nigerian courts to exercise greater restraint in cases that do not go to the root of courts’ authority and promote outcomes that are more coherent and more consistent with their obligations under the New York Convention and Model Law.

Ефективний захист як ціль правозастосування в міжнародному комерційному арбітражі

У статті досліджуються питання ефективності між-народного комерційного арбітражу та ефективного пра-вового захисту. У світлі практики Європейського суду з прав людини автор досліджує сучасні підходи до розу-міння ефективності в праві. Встановлено, що ефектив-ність засобу юридичного захисту зазвичай пов’язуєть-ся з такими його характеристиками, як доступність, достатність, визначеність. При цьому під час оцінки ефективності враховуються також загальний правовий та політичний контексти, в яких вони функціонують, та конкретні обставини справи заявника, незалежність таких заходів захисту від дій держави тощо. На основі аналізу автором зроблено висновок, що міжнародний арбітраж як раз і є тим ефективним засобом правово-го захисту, до якого звертаються сторони, підписую-чи арбітражну угоду. Його ефективність як способу вирішення комерційних спорів та захисту прав учас-ників міжнародних відносин залежить не лише від «ефективного» арбітражного розгляду, який зазвичай врегульовується Регламентом. У розумінні ефектив-ної арбітражної процедури варто виділяти збалансо-ваність і ефективність використовуваного сторонами Регламенту і те, наскільки передбачені ним процедури та процесуальні дії є розумними з позиції їх доступно-сті сторонам, достатні для потреб захисту порушених прав, визначені та ефективні з точки зору витрат часу і коштів сторін. При цьому автором обґрунтовано, що ефективність арбітражу залежить від поведінки самих сторін спору та їх юридичних радників, складу арбіт-ражу, а також характеру і складності самої справи та положень права, застосовуваного до арбітражного розгляду (lex arbitri). Адже, які б ефективні процеду-ри не були закладені в Регламенти, незнання їх Сто-ронами спору та їх представниками, чи небажання їх використовувати з метою затягування процесу, або ж з метою формування доказів для подальших юрисдик-ційних заперечень у судах місця арбітражу, так само як і оцінка складом арбітражу наданих доказів, юрис-дикційних заперечень тощо, можуть суттєво впливати як на швидкість арбітражного розгляду, так і на ефек-тивність захисту стороною своїх прав.

Functional Justiciability and the Existence of a Dispute: A Means of Jurisdictional Avoidance?

Abstract In the recent Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament string of cases the International Court of Justice declined jurisdiction by holding that there was no dispute between the parties. This Article examines the Court’s treatment of the existence of a dispute (‘EoD’) jurisdictional objection; it does not purport to analyze the Court’s broader reliance on jurisdictional doctrines as a general means of avoiding cases. From a doctrinal perspective, this Article argues that the Court's interpretation of the EoD objection in those cases is unpersuasive. Instead, the Article contends that the Court has relied on the existence of a dispute objection as a covert or functional justiciability doctrine. That is, as a ground for discretionarily declining jurisdiction or, to borrow a term from private international law, as an escape device. The Article considers that such jurisdictional avoidance may be normatively justified as a form of principled avoidance. Normatively, the decision to rely on a procedural technicality to avoid going into the merits of a potentially explosive case may be seen as a valid exercise of judicial self-restraint—something that can aid the Court navigate the tensions created by increased skepticism of international adjudication. And policy-wise, avoiding a case on a sensible subject-matter, that touches on core aspects of defense and national security, could be accepted as a way of side-stepping potential backlash.

Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America): Request for the Indication of Provisional Measures (I.C.J.)

On October 3, 2018, the International Court of Justice (ICJ) issued a unanimous order indicating limited provisional measures against the United States. Iran initiated the case, Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Iran v. United States), after the United States announced its decision to withdraw from the Joint Comprehensive Plan of Action (JCPOA) and revoke related sanctions relief for Iran. While the ICJ found that it had prima facie jurisdiction to hear the case—contrary to the U.S. position—the provisional measures it granted fell significantly short of the relief Iran sought. The Court also hinted that it might accept a significant element of the U.S. jurisdictional objection at the merits stage of the case.

Functional Justiciability and the Existence of a Dispute: A Means of Jurisdictional Avoidance?

In the recent Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament string of cases the International Court of Justice declined jurisdiction by holding that there was no dispute between the parties. This Article examines the Court’s treatment of the existence of a dispute (“EoD”) jurisdictional objection; it does not purport to analyze the Court’s broader reliance on jurisdictional doctrines as a general means of avoiding cases. From a doctrinal perspective, this Article argues that the Court’s interpretation of the EoD objection in those cases is unpersuasive. Instead, the Article contends that the Court has relied on the existence of a dispute objection as a covert or functional justiciability doctrine. That is, as a ground for discretionarily declining jurisdiction or, to borrow a term from private international law, as an escape device. The Article considers that such jurisdictional avoidance may be justified, doctrinally and normatively, as a form of principled avoidance. Normatively, the decision to rely on a procedural technicality to avoid going into the merits of a potentially explosive case may be seen as a valid exercise of judicial self-restraint – and one that can aid the Court navigate the tensions created by increased skepticism of international adjudication. And policy-wise, avoiding a case on a sensible subject-matter that touches on core aspects of defense and national security could be accepted as a way of side-stepping potential backlash.

How Arbitral Tribunals Deal with Jurisdictional Objections in Practice -- To Bifurcate or Not and Court Review of Jurisdictional Objections

The present paper shall address two separate but related topics: (a) first, how arbitral tribunals deal with jurisdictional objections in practice; and (b) secondly, court review of jurisdictional objections.

Сугубая предварительность юрисдикционных возражений: о некоторых выводах решения Международного Суда ООН по делу об иммунитетах и уголовном производстве

Сугубая предварительность юрисдикционных возражений: о некоторых выводах решения Международного Суда ООН по делу об иммунитетах и уголовном производстве

La légalité de l’investissement devant l’arbitre international : à la recherche d’un point d’équilibre

The idea that the protection offered to foreign investors under international law is conditioned upon the respect of legality has emerged in the practice of investment arbitration, on the basis of some treaty provisions and on the basis of general principles of international law. The effect of such legality condition is however intricate, because an argument on illegality is raised sometimes as a jurisdictional objection, sometimes as an admissibility issue, and sometimes on the merits. This article argues that arbitral decisions have become more consistent over time, and that different legal characterizations are understandable, taking into account the different legal basis for a legality condition, the timing of proceedings, and the multifaceted aspects of legality. A balanced approach of the legality condition would be to ground it in international as well as national law, and to focus on the moment of the making of the investment; conversely, an expansive approach would create conceptual and practical difficulties.

La légalité de l’investissement devant l’arbitre international : à la recherche d’un point d’équilibre

The idea that the protection offered to foreign investors under international law is conditioned upon the respect of legality has emerged in the practice of investment arbitration, on the basis of some treaty provisions and on the basis of general principles of international law. The effect of such legality condition is however intricate, because an argument on illegality is raised sometimes as a jurisdictional objection, sometimes as an admissibility issue, and sometimes on the merits. This article argues that arbitral decisions have become more consistent over time, and that different legal characterizations are understandable, taking into account the different legal basis for a legality condition, the timing of proceedings, and the multifaceted aspects of legality. A balanced approach of the legality condition would be to ground it in international as well as national law, and to focus on the moment of the making of the investment; conversely, an expansive approach would create conceptual and practical difficulties.

중국에서 상사중재관할권 이의제기의 남용에 관한 연구

상사중재는 당사자 간의 자발적인 중재합의에 기초하여 이루어지며, 소송에 비해 시간과 비용이 절감되어 국제상사분쟁해결의 주요한 수단으로 사용되어 왔다. 중재분쟁 과정에서 주 요한 문제 중의 하나가 관할권으로, 중재가 보편화되면서 관할권에 대한 이의도 증가하고 있다. 즉 각국마다 상사중재의 관행이 상이하고, 당사자 간 중재합의에도 불구하고 중재합의의 유효성에 대한 이의를 제기하여 특정법원의 중재절차를 회피하고 특정 관할권을 거부하는 등 고의적으로 분쟁해결을 지체시켜 이익을 추구할 목적으로 이를 악의적으로 남용하는 경우가 발생하고 있다. 특히 중국과는 FTA 체결 이후 양국간의 거래가 증가하고 있는 실정임에도 법률규정에 대한 이해가 부족하여 이와 관련한 문제로 손실이 야기되어 질 것으로 보인다. 따라서 중국과 거래하는 한국기업이 효율적으로 무역분쟁을 해결할 수 있도록 관련법률 규정 을 중심으로 중재관할권에 대한 이의가 어떻게 남용되는지를 살펴보고 이에 대한 규제의 필 요성에 대해서 고찰해 보고자 한다.