Talmon: The South China Sea Arbitration: Jurisdiction, Admissibility, Procedure

Stefan Talmon (Univ. of Bonn - Law) has published The South China Sea Arbitration: Jurisdiction, Admissibility, Procedure (Brill | Nijhoff 2022). Here's the abstract:

This book examines the South China Sea Arbitration between the Philippines and China, widely hailed as a landmark case in the law of the sea. Stefan Talmon argues that while the Tribunal assembled international lawyers of the highest repute and unrivalled experience, the case was nevertheless decided wrongly. He examines every step of the proceedings and critically engages with both the Philippines’ submissions and the Tribunal’s rulings. He finds that the Tribunal was lacking jurisdiction to decide the case, that some of the Philippines’ claims were also inadmissible, and that the Tribunal’s awards were tainted with procedural errors.

Bottini: Admissibility of Shareholder Claims under Investment Treaties

Gabriel Bottini (Uría Menéndez) has published Admissibility of Shareholder Claims under Investment Treaties (Cambridge Univ. Press 2020). Here's the abstract:

This book addresses a growing problem in international law: overlapping claims before national and international jurisdictions. Its contribution is, first, to revisit two pillars of investment arbitration, i.e., shareholders' standing to claim for harm to the company's assets and the contract/treaty claims distinction. These two ideas advance interrelated (and questionable) notions of independence: firstly, independence of shareholder treaty rights in respect of the local company's national law rights and, secondly, independence of treaty claims in respect of national law claims. By uncritically endorsing shareholder standing in indirect claims and the distinctiveness of treaty claims, investment tribunals have overlooked substantive overlaps between contract and treaty claims. The book also proposes specific admissibility criteria. As opposed to strictly jurisdictional approaches to claim overlap, the admissibility approach allows consideration of a broader range of legal reasons, such as risks of multiple recovery and prejudice to third parties.

Talmon: The South China Sea Arbitration: Observations on the Award on Jurisdiction and Admissibility

Stefan A.G. Talmon (Univ. of Bonn - Law) has posted The South China Sea Arbitration: Observations on the Award on Jurisdiction and Admissibility (Chinese Journal of International Law, forthcoming). Here's the abstract:

In the South China Sea Arbitration between the Republic of the Philippines and the People’s Republic of China the Arbitral Tribunal constituted under Annex VII to the United Nations Convention on the Law of the Sea on 29 October 2015 issued its Award on Jurisdiction and Admissibility. The Tribunal rejected China’s objection that the disputes presented by the Philippines concerned, in essence, the extent of China’s territorial sovereignty in the South China Sea and were thus outside the Tribunal’s jurisdiction. The Tribunal found, inter alia, that the Philippines’ submissions reflected disputes between the parties concerning the interpretation or application of the Convention, that there was no other State indispensable to the proceedings, and that the Philippines had met the requirement under Article 283 of the Convention that the parties exchange views regarding the settlement of their disputes. This paper examines the Tribunal’s findings with regard to each and every of the Philippines’ 15 final submissions and demonstrates that some of its findings on the Tribunal’s jurisdiction and the admissibility of the Philippines’ claims are seriously flawed and based on procedural irregularities.

Shany: Questions of Jurisdiction and Admissibility before International Courts

Yuval Shany (Hebrew Univ. of Jerusalem - Law) has published Questions of Jurisdiction and Admissibility before International Courts (Cambridge Univ. Press 2015). Here's the abstract:

This examination of the jurisdiction of international courts and the admissibility of cases before them analyses jurisdictional and admissibility rules in light of the roles assumed by international courts in international life and in light of the roles that jurisdictional and admissibility rules play in promoting the effectiveness and legitimacy of international courts. The theory pursued views jurisdiction as a form of delegation of power (the power to exercise judicial power and decide the law) and regards admissibility as a framework for deciding upon the propriety of exercising such power. On the basis of this theoretical framework, the author critically evaluates the exercise of judicial discretion in the existing case law of a variety of international courts, distinguishing between the category-based case selection implicit in jurisdictional rules and the case-by-case analysis and selection implicit in rules on admissibility.

Waibel: Investment Arbitration: Jurisdiction and Admissibility

Michael Waibel (Univ. of Cambridge - Law) has posted Investment Arbitration: Jurisdiction and Admissibility. Here's the abstract:

Jurisdiction refers to the power of a court or judge to entertain an action. By contrast, admissibility concerns the power of a tribunal to decide a case at a particular point in time in view of possible temporary or permanent defects of the claim. With admissibility, the question is whether the claim is ready for decision at this stage. Whereas jurisdiction typically looks at the dispute as a whole, admissibility is concerned with particular claims. Even though the distinction between jurisdiction and admissibility is a longstanding one in international law, the delimitation of the two is not always straightforward, and in addition the terminology is sometimes inconsistent. In investment arbitration, the boundary between jurisdiction and admissibility is particularly fluid.

After introducing the central concepts – jurisdiction, admissibility and applicable law, Section B examines different modalities of how states and investors consent to the adjudication of their investment disputes. Section C turns to three general jurisdictional questions: Kompetenz-Kompetenz; the existence of a legal dispute and counterclaims. Section D turns to the scope of jurisdiction, and looks the four dimensions of jurisdiction (personal, territorial, temporal and subject matter). Section E distinguishes issues of admissibility from issues jurisdiction, and explains how jurisdiction and admissibility interact.