Jurisdiction means the power of an adjudicatory body, such as a court/tribunal, to
admit/hear/decide claims, and make orders related to those claims. In arbitration, tribunals
only have jurisdiction to the extent that the parties agree. There must be written consent to
arbitrate. This clarifies the parties’ intent to contract out of the national court system.
Whereas in investment treaty arbitration, the legal basis of the tribunal’s jurisdiction is
essentially the parties’ consent. Jurisdiction also designates the ambit/sphere within or over
which the tribunal’s jurisdiction is exercised. Jurisdiction is determined according to its
application: In space (jurisdiction ratione loci); In time (jurisdiction ratione temporis);
Over persons (jurisdiction ratione personae); Over subject matter (jurisdiction ratione
materiae).
What is the relationship between Jurisdiction and Admissibility?
Claims are admissible if they do not suffer from any infirmity precluding the
adjudicatory body, having jurisdiction over the claim, from hearing and deciding the claim
on its merits. ‘Admissibility’ as applied to evidence means the ‘evidence introduced is of
such a character that the court or judge is bound to receive it; that is, allow it to be introduced
at trial’1. It does not appear in the ICSID Convention/ICSID Arbitration Rules, nor in other
widely used rules for investment treaty arbitration like UNCITRAL Arbitration Rules/PCA
Arbitration Rules. But it is used in SIAC Investment Arbitration Rules 2017 (Rules 25.2 and
26.1), SCC Arbitration Rules (Article 39(2)), and ICDR International Arbitration Rules 2014
(Article 19(3)).
Admissibility is considered distinct from jurisdiction in which ‘Any objection by the
respondent to the jurisdiction of the Court or to the admissibility of the application, or other
objection the decision upon which is requested before any further proceedings on the merits,
shall be made in writing as soon as possible’2. In Iraq v United States3, ICJ noted that
‘Objections to admissibility normally take the form of an assertion that, even if the Court has
jurisdiction and the facts stated by the applicant State are assumed to be correct, nonetheless
there are reasons why the Court should not proceed to an examination of the merits.’
Similarly, in Croatia v Serbia4, ICJ stated that such objection essentially ‘consists in the
contention that there exists a legal reason, even when there is jurisdiction, why the Court
should decline to hear the case, or more usually, a specific claim therein’. But objections
based on ‘admissibility’ should not be confused with defences which still imply a dismissal
of the case on its merits. For example, in Methanex Corporation v United States5, the US
submitted that as a matter of admissibility, ‘taking all of the allegations of fact made [by
Methanex] to be true, including uncontested facts [...] as a matter of law, there can be no
claim, and the claim is ripe for dismissal at this stage for that reason’. Paulsson writes that
‘This may be a very good definition of a motion to dismiss for failure to state a cause of
action, or, to use the expression current in England, a strike-out application. [...] By its own
definition, the USA's challenge required consideration of the 'matter of law' which would
preclude the claim. The merits of a case are not limited to issues of fact. The USA may have
1
Joseph Nolan and Jacqueline Nolan-Haley (eds), Black’s Law Dictionary (West Publishing Co., 1990) 47
2
Article 79(1), Rules of Court of the International Court of Justice (ICJ)
3
Case concerning Oil Platforms (Islamic Republic of Iran v United States of America) (Judgment) [2003] ICJ
Rep 161, 177 [29]
4
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia)
(Preliminary Objections) [2008] ICJ Rep 412, 456 [120]
5
Methanex Corporation v United States of America, UNCITRAL, Partial Award (7 August 2002)
,been seeking a knock-out blow on the merits before any hearing of facts, but however early
such a defence may be pleaded and considered, it is a defence on the merits and not a matter
of admissibility. The USA was not arguing that the case was unhearable, but that it was
legally hopeless. That is precisely how one should understand the difference between a
challenge of inadmissibility and a strike-out application. Even if facts are assumed true as
pleaded (and there is therefore no resolution of factual controversies), a strike-out application
involves a consideration of the merits of the case; the objective of the application is precisely
to secure a determination that the legal basis of the claim is meritless. A ruling on such an
application is therefore as unappealable as decisions on the merits generally. In this respect it
is a harmless mistake to refer to such applications as dealing with admissibility. Yet the
confusion of terms comes at a cost when it blurs such fundamentally distinct concepts.’6
Jurisdiction and admissibility are distinct as stated in Waste Management v Mexico7 whereby
‘lack of jurisdiction refers to the jurisdiction of the Tribunal and inadmissibility refers to the
admissibility of the case. Jurisdiction is the power of the tribunal to hear the case;
admissibility is whether the case itself is defective—whether it is appropriate for the tribunal
to hear it. If there is no title of jurisdiction, then the tribunal cannot act.’ Professor Brownlie
observes that ‘[a]n objection to the admissibility of a claim invites the tribunal to dismiss (or
perhaps postpone) the claim on a ground which, while it does not exclude its authority in
principle, affects the possibility or propriety of its deciding the particular case at the
particular time’8. Paulsson9 suggests that as a simple test for ascertaining whether a particular
objection relates to jurisdiction or to admissibility, one may ask whether the objection is
directed towards the tribunal (in which case the objection must be qualified as jurisdictional)
or at the claim (in which case the objection goes to admissibility). Such distinction is seen in
SGS v Philippines10, which Paulsson and Zeiler refer to as an exemplary application 11. In that
case, the parties entered into a service contract containing an ‘exclusive jurisdiction’ clause
which provided that disputes arising out of the contract should be referred to Philippine
courts. SGS (based in Switzerland) sought ICSID arbitration under Switzerland-Philippines
BIT based on failure of payment. Philippines asserted ICSID Tribunal had no jurisdiction
because SGS’s claim was based on an alleged failure of payment under the contract and the
disputes clause required such matters to be taken to Philippine court. The Tribunal found the
BIT encompassed contractual claims and Claimant had specifically alleged breaches of the
treaty, in which it had jurisdiction. But the claim was brought in breach of the exclusive
jurisdiction clause, in which Tribunal held the claim was premature and inadmissible. ‘In the
Tribunal’s view, this principle is one concerning the admissibility of the claim, not
jurisdiction in the strict sense. The jurisdiction of the tribunal is determined by the
combination of the BIT and the ICSID Convention. Thus the question is not whether the
Tribunal has jurisdiction: unless otherwise expressly provided, treaty jurisdiction is not
abrogated by contract. The question is whether a party should be allowed to rely on a contract
6
Jan Paulsson, ‘Jurisdiction and Admissibility’, in Gerald Aksen and Robert Briner (eds), Global Reflections on
International Law, Commerce and Dispute Resolution (ICC Publishing 2005) 611
7
Waste Management Inc. v Mexico, ICSID Case No. ARB(AF)/98/2, Dissenting Opinion to Award (8 May
2000) paras. 57–58
8
James Crawford, Brownlie’s Principles of Public International Law (OUP 2012) 693
9
Jan Paulsson, ‘Jurisdiction and Admissibility’, in Gerald Aksen and Robert Briner (eds), Global Reflections on
International Law, Commerce and Dispute Resolution (ICC Publishing 2005) 611
10
SGS Société Générale de Surveillance SA v Republic of the Philippines, ICSID Case No. ARB/02/6, Decision
of the Tribunal on Objections to Jurisdiction (29 January 2004) para 154
11
Jan Paulsson, ‘Jurisdiction and Admissibility’, in Gerald Aksen and Robert Briner (eds), Global Reflections
on International Law, Commerce and Dispute Resolution (ICC Publishing 2005) 611 and Gerold Zeiler,
’Jurisdiction, Competence and Admissibility of Claims in ICSID Arbitration’ in Binder and others (eds),
International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer (OUP 2009)
, as the basis of its claim when the contract itself refers that claim exclusively to another
forum. In the Tribunal’s view the answer is that it should not be allowed to do so, unless there
are good reasons, such as force majeure, preventing the claimant from complying with its
contract. This impediment, based as it is on the principle that a party to a contract cannot
claim on that contract without itself complying with it, is more naturally considered as a
matter of admissibility than jurisdiction.’
Jurisprudence on admissibility and its connection to the notion of jurisdiction within
investment treaty arbitration should be considered separately. In Consorzio Groupement
LESI-DIPENTA v Algeria12, the Tribunal acknowledged that objections of jurisdiction and
admissibility ‘must be dealt with separately and successively, because they deal with
different questions’.
But some tribunals have doubted such relevance in investment treaty arbitration. In
Enron Corporation and Ponderosa Assets L.P. v Argentina 13, Tribunal found that ‘The
distinction between admissibility and jurisdiction does not appear to be necessary in the
context of the ICSID Convention, which deals only with jurisdiction and competence.’ Also,
in CMS Gas Transmission v Argentina 14, Tribunal found that ‘The arguments that the parties
have put forth involve a number of questions of admissibility and jurisdiction. The distinction
between admissibility and jurisdiction does not appear quite appropriate in the context of
ICSID as the Convention deals only with jurisdiction and competence.’ In Daimler v
Argentina15, Tribunal stated that admissibility requirements had ‘no relevance for BIT based
jurisdictional decisions [...]’ and that these requirements were ‘judicially constructed rules to
preserve the efficiency and integrity of court proceedings [in a domestic context]’. ‘They do
not expand the jurisdiction of domestic courts. Rather, they serve to streamline courts’
dockets by striking out matters which, though within the jurisdiction of the courts, are for one
reason or another not appropriate for adjudication at the particular time or in the particular
manner in question. All BIT-based dispute resolution provisions, on the other hand, are by
their very nature jurisdictional.’
In other cases, tribunals have recognised admissibility but noted that parties’
objections must ultimately be classified depending upon the applicable provisions of the
investment treaty. In Urbaser v Argentina16, Tribunal ruled that ‘[...] even if such categories
[of jurisdiction and admissibility] were to be adopted, which appears to be an extremely
delicate proposition as a matter of comparative law, the question whether a particular legal
issue falls in one and not the other is contingent on the meaning of the relevant provisions of
the BIT. This latter consideration is all that matters’. In Philip Morris v Uruguay17, Tribunal
ruled that ‘Whether the domestic litigation requirement relates to jurisdiction or, rather, to
admissibility or procedure depends on the interpretation of Article 10 of the BIT, based on
the interpretative rules of the VCLT’.
If tribunal does recognise admissibility in its award, the distinction between admissibility and
jurisdiction becomes important towards determining the scope of review of the award. This
is because unlike decisions bearing upon the tribunal’s jurisdiction, decisions as to
admissibility of a claim cannot be challenged before national courts or in the framework of
12
ICSID Case No. ARB/03/08, Award (10 January 2005)
13
ICSID Case No ARB/01/3, Decision on Jurisdiction (14 January 2004) para 33
14
ICSID Case No ARB/1/8, Decision of the Tribunal on Objections to Jurisdiction (17 July 2003) para 41
15
ICSID Case No ARB/05/1, Award (22 August 2012) paras 192-193
16
Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v The Argentine
Republic, ICSID Case No ARB/07/26, Decision on Jurisdiction (19 December 2012) para 112
17
Philip Morris Brands Sàrl, Philip Morris Products S.A. and Abal Hermanos S.A. v Oriental Republic of
Uruguay, ICSID Case No ARB/10/7, Decision on Jurisdiction (2 July 2013) para. 138
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