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Jurisdiction over Incidental Questions in International Law

Published online by Cambridge University Press:  28 March 2018

Ben Love*
Affiliation:
Senior Associate in the International Arbitration and Public International Law Groups of Freshfields Bruckhaus Deringer US LLP in New York.

Extract

It has been said that consent is the cornerstone of international law. Even if, strictly speaking, the progression of international lawmaking has taken us beyond that view on matters of substance, surely the proposition maintains traction on matters of jurisdiction. The increase in international treaties conferring courts and tribunals with competence to resolve disputes has tied many states to the mast, but, like Odysseus, we must remember that the origin of that conferral is consent.

Type
New Voices: Jurisdictional Issues in International Law
Copyright
Copyright © by The American Society of International Law 2018 

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References

1 See Lotus case, 1927 PCIJ (ser. A) No. 10, at 18 (“The rule of law binding upon States … emanates from their own free will.”).

2 See Ben Juratowitch's remarks in Debate: Compulsory Jurisdiction in International Dispute Settlement: Beyond David Versus Goliath?, supra.

3 See Bartels, Lorand, Jurisdiction and Applicable Law Clauses: Where Does a Tribunal Find the Principal Norms Applicable to the Case Before It?, in Multi-sourced Equivalent Norms in International Law 115–41 (Broude, Tomer & Shany, Yuval ed., 2011)Google Scholar (“Principal norms are those norms used by a tribunal to make principal determinations. These are determinations that a tribunal is authorized to make by its relevant jurisdictional instruments. By contrast, incidental norms are norms used by a tribunal to make the additional determinations necessary for it to be able to make principal determination.”).

4 See Prosecutor v. Tadi?, Case No. IT–94–1–I, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, para. 11 (Oct. 2, 1995) (observing that international law “lacks a centralized structure, [and] does not provide for an integrated judicial system operating an orderly division of labour among a number of tribunals, where certain aspects or components of jurisdiction as a power could be centralized or vested in one of them but not the others”).

5 See, e.g., Vienna Convention on the Law of Treaties, Art. 31(3)(c) (providing that “[t]here shall be taken into account, together with the context: … (c) any relevant rules of international law applicable between the parties”).

6 Certain German Interests in Polish Upper Silesia (Germany v. Poland) (Jurisdiction) 1925 PCIJ (ser. A) No. 6; Case Concerning the Factory at Chorzów, 1928 PCIJ (ser. A) No. 17.

7 Certain German Interests in Polish Upper Silesia, supra note 6, at 18.

8 Case Concerning the Factory at Chorzów, 1928 PCIJ (ser. A) No. 17, at 226.

9 Bin Cheng, General Principles of International Law as Applied by International Courts and Tribunals 266 (1953).

10 Id. at 267.

11 See Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), PCA Case 2011–03, Award (March 18, 2015); South China Sea Arbitration (The Philippines v. China), PCA Case 2013–19, Award on Jurisdiction and Admissibility (Oct. 29, 2015).

12 South China Sea Arbitration, supra note 11, para. 152.

13 Chagos Marine Protected Area Arbitration, supra note 11, para. 220.

14 Id., para. 221.

15 See Zachary Douglas, The Hybrid Foundations of Investment Treaty Arbitration, 74 Brit. Y.B. Int'l L. 151 (2003).

16 See, e.g., SGS v. Pakistan, ICSID Case No. ARB/01/03, Decision of the Tribunal on Objections to Jurisdiction, paras. 186–88 (Aug. 6, 2003) (rejecting Pakistan's request to stay the treaty arbitration pending the resolution of an underlying contractual dispute); see also Telefónica SA v. Argentine Republic, ICSID Case No. ARB/03/20, Decision of the Tribunal on Objections to Jurisdiction, para. 87 n.36 (May 25, 2006) (in which the tribunal noted that its jurisdiction to consider an investment treaty claim did not preclude it “when dealing with the merits, from examining incidenter tantum whether there have been breaches of the Transfer agreement, should this be relevant in order to ascertain whether Argentina has committed the BIT breaches that Telefonica alleges”).

17 See, e.g., SGS v. Philippines, ICSID Case No. ARB/02/6, Decision of the Tribunal on Objections to Jurisdiction, paras. 174–76 (Jan. 29, 2004) (accepting the Philippines’ request to stay the arbitration pending the resolution of an underlying contractual dispute).

18 See Bobbitt, Philip, Mark Tushnet: The Right Questions, 90 Georgetown L.J. 223 (2001)Google Scholar.

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