Procedural Rules in International Law: Understanding Jurisdiction, Competence, and Admissibility

Understanding Procedural Rules in International Law through International Courts and Tribunals

Introduction
Jurisdiction. Competence
Inadmissibility. Objection
Prior Negotiation
Conclusion

Related Cases: Case concerning Border and Transborder Armed Actions (Nicaragua v. Honduras), judged by ICJ, 20/12/1988 || Northern Cameroons Case, Cameroon v. UK, International Court of Justice, 2/12/1963.

Summary

Introduction

Within the scope of arbitral or judicial proceedings, whether under Public or Private International Law, admissibility and jurisdiction are common contentions a defendant may assert to challenge the claimant’s action, seeking to prevent the claimant from obtaining adjudicatory in merits of a dispute between the parties.

Although remarkably similar and not always distinguished in the States´ practice, there is a difference between those procedural objections.

The matter is relevant, and its approach occurs in Section C (Course of Law and Policy of International Courts and Tribunals), Role and Functioning of International Courts and Tribunals: Institutional Aspects, offered by the University of London as a Master’s Degree program.

The International Court of Justice Registry keeps a page with contentious cases organized by incidental proceedings, where a reader finds a list of cases in which questions of jurisdiction and/or admissibility were raised.

This post reviews the general differences and similarities between jurisdiction and admissibility. It also addresses competence, which is similar to jurisdiction. For a specific approach in light of the ICSID´s legal system, perhaps it might be interesting to look into the post Objections in the ICSID´s Legal System.

As is always highlighted, the objective of the posts is not to provide in-depth research capable of establishing one position or another in the rich and sophisticated doctrinal scenario of International Law but to serve as a reflection and, above all, we hope to capture the interest of Brazilian legal operators in the International Justice, informing about the prestige that its practice, knowledge and development can bring to Brazil in international relations.

Jurisdiction. Competence

In the Roman Law System, there is an intermediary issue whose instance lies between Jurisdiction and admissibility, the competence.

It is a misconception to consider Roman Law too antiquated for study and research. Mezger asserts that while Roman Law may have lagged in addressing contemporary substantive law issues, it continues to wield significant influence in the realm of procedural rules:

Most who study Roman law today do so as historians, not lawyers. History includes doctrine, but Roman legal doctrine is rarely used to solve modern problems. There are exceptions: Roman law helps to solve modern problems in certain jurisdictions’ and academic writing sometimes gives a Roman solution to a modem problem. But the time is past when Roman sources were routinely put to work in the world of affairs, and most would say codification is the main reason.”
Ernest Metzger¹

Hence, a judicial body may have jurisdiction to hold the case, and the application also be admissible, but it lacks competence to entertain the case; for instance, the judge is not reliable in exercising judgment independently, considering, in the given example, Article 56 of the Chapter V (Replacement and Disqualification of Conciliators and Arbitrators) of the Convention on the Settlement of Investment Disputes between States e Nationals of Other States. In light of that detachment from facts that characterize jurisdiction, the International Court of Justice (ICJ), in the judgment of the Border and Transborder Armed Actions² (Nicaragua v. Honduras) concerning Jurisdiction and Admissibility³, held that:

“The existence of jurisdiction of the Court in a given case is however not a question of fact, but a question of law to be resolved in the light of the relevant facts. The determination of the facts may raise questions of proof.”
ICJ

Then, jurisdiction is legal, direct and abstract attribution of the adjudicatory body (such as a Court, Tribunal, or Arbitral Tribunal), whereas competence is the jurisdiction in concretum, in view of a given action brought before the court.

That point is crucial to understanding the difference between jurisdiction and competence because jurisdiction is the condition whose implementation triggers competence. Out of exceptional circumstances, jurisdiction is not contingent on the proof of facts under adjudications. Conversely, competence is predicated on the facts of the case presented to the court. Therefore, matters of competence necessitate evidence whose burden is on who alleges the objection of incompetence, that is, the defendant.

So, when a court evaluates its jurisdiction, it does not consider the facts supporting the application immediately but rather the law invocated by the claimant to be applied to those relevant facts, that is, the juridical grounds on which the facts are laid.

Jurisdiction, Competence, and Admissibility are procedurally defence subjects to be raised through objections aiming to avoid the court proceeding on the merits of the action. Thus, there is procedural logic by which the court should first ascertain its jurisdiction and analyse competence afterwards. Admissibility, then, is the last objection to be regarded.

The Convention on the Settlement of Investment Disputes between States and Nationals of Other States provides the procedural order of objection analysis in Article 32 (2).

The logical progression for a case’s preliminary evaluation moves from a broader scope (or more abstract concepts) to a narrower focus (or more concrete terms), encompassing jurisdiction, competence, and admissibility.

Illustrating with an example, an Arbitral Tribunal under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States may be incompetent to adjudicate a case due to the existence of a disqualified arbitrator on the panel, although the Arbitral Tribunal has jurisdiction and the case is admissible.

Finally, which matters can be deemed of jurisdiction and competence distinctly? It hinges on the law to establish those conditions of jurisdiction and requirements of competence, which will fall within the concept of either jurisdiction or competence in accordance with that criterium: Jurisdictional issues are inherently abstract, not necessarily linked to concrete facts, whilst competence consists of factual situations, often pertaining to the objective or subjective qualifications of adjudicators, such as their capacity (objective) and independence or impartiality (subjective).

Inadmissibility. Objection

Before delving into the concept of inadmissibility, it is useful to examine the notion of objection. Originating from Latin, the term means ‘to throw before,’ implying precedence over other matters. In Common Law, it refers to a defensive act that does not contest the merits of a case, as if placed before a challenge to the merits. In legal systems derived from Roman Law, such as Civil Law, ‘objection’ is replaced by ‘exception,’ which carries the same procedural weight as a preliminary defense⁴ ⁵ ⁶ ⁷. Drawing from Roman Law⁸, a preliminary defense can be categorized either as a challenge to the procedural rule itself (for example, questioning the adjudicator’s qualifications) or as a substantive challenge, such as initiating proceedings without first seeking a negotiated resolution to the dispute.

Inadmissibility serves as a preliminary objection that challenges a dispute’s procedural or substantive aspects, strategically preventing the court from addressing the case’s merits. As aforementioned, issues of jurisdiction and competence are also preliminary objections but address different aspects of contention in distinct spheres of the facts. The legal condition for jurisdiction is a more general one, whereas the legal condition for admissibility is of a lower degree, which explains that a Court may be competent to entertain a case but dismiss it for its being inadmissible. In the judgment of the Border and Transborder Armed Actions² (Nicaragua v. Honduras) concerning Jurisdiction and Admissibility, the International Court of Justice, upon analyzing Honduras’s contentions, determined that it was to first examine its jurisdiction, subsequently addressing the issue of admissibility. This is because if the Court determines it lacks jurisdiction—a broader issue—it would not advance to consider the narrower issue of admissibility.

According to the overall idea, admissibility pertains to the inherent condition of the claim, entirely independent of the adjudicating body, and is characterized by a considerably narrower scope, mainly when compared to the legal jurisdictional condition. However, it is not always easy to distinguish the line between objection on jurisdiction and admissibility in practical terms.

“The line between questions of jurisdiction (which basically relate to the competence of the Court to act at all) and questions of admissibility, receivability or examinability (which relate to the nature of the claim, or to particular circumstances connected with it) l is apt in certain cases to get blurred. For this reason, international courts have tended to decline to draw too hard and fast a distinction, or to sub-categorise too rigidly the general category of “preliminary objections”, or else they have declared the distinction to be of secondary importance.”
Judge Sir Gerald Fitzmaurice¹⁰

Nevertheless, in that particular judgment (Northern Cameroons Case, Cameroon v. United Kingdom), Judge Gerald Fitzmaurice provides a significant insight into the distinction between jurisdiction and inadmissibility¹¹:

“(…) which the present Court upheld a plea of inadmissibility, although an objection to its jurisdiction was still outstanding, and was never disposed of. The immediate result is the same, but not necessarily in the long run; for a successful objection to the jurisdiction necessarily terminates the affair once and for all, whereas some pleas of inadmissibility (e.g. that local remedies have not been exhausted) relate to defects that may be cured by the subsequent action of the party concerned.”
Judge Sir Gerald Fitzmaurice

It should be noted that, unlike jurisdictional issues, inadmissibility may hinge on a fact for which the burden of proof lies with the defendant who asserts it. But which facts might it be? There is a variety of them, being the following the most recurrent:

. Dispute without object or purpose (mootness)
. Non-exhaustion of local remedies
. Absence of bond of nationality between State and individual
. Absence of indispensable third party in proceedings
. Absence of legal right or interest
. Delay in submission of claim¹²

Finally, competence is a preliminary objection but not an inadmissibility issue.

Prior Negotiation¹³

The existence of an obligation of previous negotiation before initiating adjudicatory proceedings is the most usual treaty-clause allegation that, when arbitral or judicial proceedings are commenced, is raised as a preliminary objection in the attempt to impend the Courts to proceed to an on-merits judgment.

A number of global treaties provide the obligation to negotiate before referring a dispute to adjudication. For instance, the United Nations 1982-Convention on the Law of the Sea (UNCLOS) sets out an exchange of views before initiating adjudicatory proceedings, as stipulated by Article 283¹⁴:

Obligation to exchange views

When a dispute arises between States Parties concerning the interpretation or application of this Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means.

The parties shall also proceed expeditiously to an exchange of views where a procedure for the settlement of such a dispute has been terminated without a settlement or where a settlement has been reached and the circumstances require consultation regarding the manner of implementing the settlement.
UNCLOS

Under the judicial framework of the UNCLOS, disputing parties must promptly engage in discussions to resolve the matter through negotiation or other peaceful methods. This form of negotiation is a prerequisite that States involved in the dispute must undertake before resorting to the judicial proceedings of the International Tribunal for the Law of the Sea. If a party initiates proceedings without the exchange of views required by Article 283, the International Tribunal for the Law of the Sea (ITLOS), despite having jurisdiction, cannot consider the case due to the inadmissibility of the application (the claimant state has not exchanged views with the other party).

It is relevant no notice that prior negotiation differs from prior consultation¹⁵ in that the latter cannot be presented as a preliminary objection but rather as a violation of a substantive obligation. However, there may be instances where “consultation” is used in the sense of “negotiation,” as seen in the WTO-DSU system. In such cases, “consultation” equates to negotiation, and, as a result, it can be presented as a preliminary objection if the party initiating proceedings failed to engage in prior consultation¹⁶.

The WTO-judicial system established in Article 4 of the DSU (The Dispute Settlement Understanding)¹⁷:

“(1) Members affirm their resolve to strengthen and improve the effectiveness of the consultation procedures employed by Members.

(2) Each Member undertakes to accord sympathetic consideration to and afford adequate opportunity for consultation regarding any representations made by another Member concerning measures affecting the operation of any covered agreement taken within the territory of the former.”
WTO-DSU

The Convention on the Settlement of Investment Disputes Between States and Nationals of Other States stipulates a condition for initiating proceedings which, if not met, constitutes a preliminary objection on the grounds of inadmissibility (Exhaustion of local remedies)¹⁸.

Article 26
“Consent of the parties to arbitration under this Convention shall, unless otherwise stated, be deemed consent to such arbitration to the exclusion of any other remedy. A Contracting State may require the exhaustion of local administrative or judicial remedies as a condition of its consent to arbitration under this Convention.”
CSID

Conclusion

Understanding the meanings and distinctions between preliminary objections, jurisdiction, competence, and admissibility is not merely theoretical but of concrete significance. Recognizing and distinguishing each one is crucial as they impact legal proceedings differently. Jurisdictional issues can result in a permanent dismissal of the case, whereas competence and admissibility issues may be resolved. Furthermore, the burden of proof and the principle of doubt differ depending on whether the matter pertains to jurisdiction, competence, or admissibility.

Additional Reading on the difference between jurisdiction, competence and admissibility¹⁹.

Metzger, Ernest. “Roman Judges, Case Law, and Principles of Procedure.” Law and History Review, vol. 22, no. 2, 2004, pp. 243–75. JSTOR, https://doi.org/10.2307/4141647. Accessed 23 June 2024. ↩︎
The PDF may be downloaded below. ↩︎
Note: In that judgment, ICJ does not differentiate jurisdiction from competence, referring to them as if the concept of them were the same. Indeed, neither in the Rules of Court (1978) nor in its Statute is competence addressed as a specific procedural objection. In the ICJ Statute, Chapter II, refers to “competence of the Court”, but it is not modelled in a different conception of jurisdiction; on the contrary, jurisdictional and competence matters are laid down indistinctly as for both ratione personae and ratione materiae (Article 34 usque 38). However, the Convention on the Settlement of the Investment Disputes between States and Nationals of Other States, alongside Articles 32 (2)and 42 (1), distinguishes objections on jurisdiction and competence. ↩︎
In Articles 577º usque 579º, the Portuguese Code of Civil Procedure employs the term exception to designate preliminary defense, instead of objection. ↩︎
The US Code of Civil Procedure (Federal Rules of Civil Procedure) opts for objection, not exception. ↩︎
The French Code of Civil Procedure, in its Article 73, after defining defense on the merits, deals with the preliminary objections, which are, legally, named exceptions, not objections. ↩︎
The German Code of Civil Procedure, in its Section 295, designates preliminary objections as Verfahrensrügen, which can be translated into English as procedural complaints. ↩︎
Find below a document (in Portuguese) explaining in full detail the origins of preliminary objections in Roman Law ↩︎
The PDF may be downloaded below. ↩︎
The PDF of the separate opinion of Judge Sir Gerald Fitzmaurice, in the judgment of 2 December 1963, in the case Northern Cameroon (Northern Cameroon v. United Kingdom). Citation on page 91. ↩︎
Ibid. p. 91. ↩︎
Ren R. THE DICHOTOMY BETWEEN JURISDICTION AND ADMISSIBILITY IN INTERNATIONAL ARBITRATION. International and Comparative Law Quarterly. 2024;73(2):417-446. doi:10.1017/S0020589324000022 ↩︎
An additional reading on the role the negotiation plays in the shifting process to adjudication, you might be interested in reading Shifting to Adjudication: The Importance of the Negotiation as a Precondition: ↩︎
Additional reading: THE OBLIGATION TO EXCHANGE VIEWS BEFORE THE INTERNATIONAL TRIBUNAL
FOR THE LAW OF THE SEA: A CRITICAL APPRAISAL BY Mariano J. AZNAR, Revue Belge de Droit International 2014/1 – Éditions BRUYLANT, Bruxelles. ↩︎
Prior Consultation in International Law: A Study of State Practice, Michigan Law Review, Volume 82, Issue 4, 1984 ↩︎
Additional reading on consultation in the WTO-DSU system: PDF below. ↩︎
Please find the jurisprudence of the Dispute Settlement Body interpreting Article 4 of the DSU in the PDF below. For a comprehensive analysis, you may refer to the WTO Analytical Index or the legal text of the Dispute Settlement Understanding. ↩︎
The UNCITRAL (United Nations Conference on Trade and Development) issued a course on Dispute Settlement in International Trade, encompassing the ICSID, the adjudicator body of the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States. The PDF is below. ↩︎
Zeiler, Gerold, ‘JURISDICTION, COMPETENCE, AND ADMISSIBILITY OF CLAIMS IN ICSID ARBITRATION PROCEEDINGS’, in Christina Binder, and others (eds), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer (Oxford , 2009; online edn, Oxford Academic, 1 Sept. 2009), https://doi.org/10.1093/acprof:oso/9780199571345.003.0007, accessed 23 June 2024.
↩︎