Event Summary (the full lecture was published on TDM)

On 26 October 2016 Dr Veijo Heiskanen gave a lecture at UCL on “the Artefact of International Jurisdiction: Concept, History and Reality”. The panel was chaired by Dr Martins Paparinskis (UCL); Alison Macdonald (Matrix Chambers) and Dr Gleider Hernandez (Durham) served as commentators.

Dr Heiskanen addressed the provenance of the concept of international jurisdiction, which generated the development of preliminary objections. On this point, he referred to the Jay Treaty arbitrations, and explained that the commissions created by the Jay Treaties were the first international tribunals operating on the international plane. At the wake of these arbitrations, several other international arbitrations were conducted in the course of the 19th and the early 20th century. The tribunals that were created to deal with these claims were usually based on a compromis, a submission agreement that referred to international arbitration a dispute that had already arisen.

The fact that these tribunals’ jurisdiction was based on a compromis meant that it was difficult to challenge their jurisdiction by way of a preliminary objection. The sole objection the respondent State could raise to the jurisdiction of the tribunal was to challenge its jurisdiction to decide on its own jurisdiction – its “competence – competence.” However, while it was difficult to challenge the jurisdiction of an ad hoc tribunal operating under a compromis, the admissibility of the claims could still be challenged: whether the claim was really an international claim. Resultantly, a sophisticated set of rules of admissibility were developed by these early courts and tribunals to deal with such objections, and these were subsequently ratified by the Permanent Court of International Justice and became part of the corpus of international law.

Under these rules, in order to be admissible before an international court or tribunal, a claim had to be admissible ratione temporis, ratione personae and ratione materiae – it had to be an international claim in all of these three aspects. It had to be admissible ratione temporis, that is, it had to be ripe for international jurisdiction in the sense that local remedies had been exhausted. It had to be admissible ratione personae in the sense that that the claim espoused by the claimant State had to be owned by a national of that State and not by a national of the respondent State, and it had to be admissible ratione materiae in the sense that it had to be based on a prima facie breach of an international legal obligation and not on an alleged breach of municipal law. Only if these criteria – these tests of admissibility – were met, one could say that one was dealing with an international claim.

Thus, Dr Heiskanen explained that the rules of admissibility are, historically, about the criteria that a claim must meet, in order to be admissible as an international claim.

Having established the above, Dr Heiskanen moved to address the distinction between jurisdiction and admissibility. According to him, this distinction emerged when ad hoc arbitration was replaced by the Permanent Court of International Justice (PCIJ), and when the exercise of international jurisdiction was first institutionalized. The PCIJ, and the other international tribunals that followed in the course of the 20^th century, were not ad hoc fora. These adjudicative bodies were rather meant to firmly stand on the international plane, as a permanent presence. For Dr Heiskanen, the creation of these adjudicative bodies also brought about a new category of jurisdiction: the jurisdiction of a particular court.

Furthermore, the emergence of these permanent bodies also introduced a new, positivist concept of jurisdiction. International jurisdiction was no longer a potentiality that would occasionally become an actuality in the form of an ad hoc arbitral tribunal; it became a permanent actuality within the limits defined in the relevant treaty. Dr Heiskanen explained that these limits could be conceptualized, and were in fact conceptualized, in the very same terms as the admissibility of claims before ad hoc arbitral tribunals, that is, in the three familiar dimensions – in terms of time (ratione temporis), person (ratione personae) and subject matter (ratione materiae).

Dr Heiskanen then proceeded to delineate these concepts: Jurisdiction ratione temporis, he explained, is not about whether the claim is international in terms of time; it is about whether the claim arose during the time period when the treaty was in force. Jurisdiction ratione personae is not about whether the claim is international in terms of person (i.e., who owns it); it is about whether the claimant falls within the category of the subjects of law governed by the treaty; whether the claimant is among those entitled to appear before the court. Jurisdiction ratione materiae is not about whether the claim is international in terms of subject matter; it is about whether the claim relates to a subject matter that the treaty in question regulates.

Finally, Dr Heiskanen addressed the notion of “competence”. He elucidated that while the distinction between jurisdiction and competence was initially seen mainly as a matter of legal terminology, the two concepts gradually came to be seen as different or at least potentially different concepts. On this point he stressed that the question of what “competence” really means, in concrete legal terms, and whether it really is a distinct or independent concept, has not been effectively addressed.

He illustrated the meaning and application of these concepts. Accordingly, he maintained that objections to competence, in a technical (rather than substantive) sense of this term, may be said to relate to the question of whether a particular dispute falls within the scope of the arbitration agreement, in terms of time, person and subject matter. Thus, for instance, the question of whether the dispute resolution clause in an investment treaty covers pre-existing disputes, i.e., disputes that had arisen before the treaty entered into force, could be characterized as an issue of competence ratione temporis rather than jurisdiction ratione temporis; this latter issue is about whether the treaty covers pre-existing investments, or investments made prior to the entry into force of the treaty. Similarly, the question of whether the alleged breach is attributable to the respondent State may be said to be an issue of competence ratione personae rather than jurisdiction as it is about whether the respondent State is a proper party to the dispute; this issue may arise even if there is no dispute that the respondent State has given its consent to arbitration in the treaty.

On a similar vein, the question of whether the claim is based on the treaty or another legal basis (say, ac contract) should arguably be characterized as an issue of competence ratione materiae rather than jurisdiction ratione materiae; in the context of investment arbitration, for instance, this latter issue is about whether the claim arises out of a “covered investment”. Like objections to admissibility, objections to competence therefore tend to be more closely related to the merits than objections to jurisdiction and often they cannot be decided separately from the merits. However, unlike objections to admissibility, which relate to the claim, objections to competence rather relate to the dispute. In other words, they are about whether the dispute is really covered by the treaty in terms of time, whether the State is really a party to the dispute, or whether the claim is really, in substance, a treaty claim.

He stressed that this classification may have legal consequences. If an objection to jurisdiction in the strict sense of the term is upheld, the arbitral tribunal has no discretion and the claim must be dismissed for lack of jurisdiction. The same is true for objections to competence. However, because objections to procedural admissibility relate to the claim rather than the scope of the treaty or of the arbitration agreement, arbitral tribunals have a measure of discretion to determine whether to admit or dismiss the claim in the circumstances of the case.

Building on Dr Heiskanen lecture, Ms Macdonald and Dr Hernandez offered some observations, referring to recent international jurisprudence.

Ms Macdonald referred in her comments to the matter of Mauritius v UK. She explained the significance of the concept of “jurisdiction” by referring to the role it played in the case and the Tribunal’s rather unusual decision to join the jurisdiction objections with the merits of the case, as it forced the UK to advance, for the first time, its arguments on the merits of the case and what happened in the 1960s; from this perspective it was a victory for Mauritius. The Tribunal’s decision to join the preliminary objections with the merits affected the hearings and the way the parties litigated the case, and more importantly it facilitated the discussion of Mauritius’s sovereignty as the dissenting arbitrators upheld the Tribunal’s jurisdiction over some of the Claimant’s submissions and found that Mauritius’s sovereignty was violated by the UK.

Dr Hernandez noted that linguistic nuances may offer an additional complexity to the discussion of the distinction between jurisdiction and competence. Thus, the English term “jurisdiction” is not synonymous with the French “juridiction”, while “compétence” in French is not the same as “competence” in English, but rather reflects a broader term, more aligned with the English use of “jurisdiction”. Thus, the distinction between the concepts may also be informed by linguistic subtleties. On this point, Dr Hernandez relied on ICJ case-law, noting that the Court does not use the concept of “competence” (let alone as a separate concept, which is distinct from that of jurisdiction and admissibility). Further, the ICJ usually juxtaposes jurisdiction with “compétence” (the French term).

Dr Hernandez also referred to the recent Marshall Islands cases, which illustrate the difference between jurisdiction and admissibility. These cases turned on the existence of a “dispute” between the parties; professedly this constitutes an “admissibility” objection. As the Court asserted that as there is no dispute between the parties, it did not proceed to the merits stage. If so, and given the practical outcomes of this preliminary objection, it is not abundantly clear that this was in fact an “admissibility” objection. This recent jurisprudence challenges our current understanding of the concepts of jurisdiction and admissibility.