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Investment Arbitration: Jurisdiction and Admissibility

81 Pages Posted: 8 Feb 2014  

Michael Waibel

University of Cambridge - Faculty of Law; Lauterpacht Centre for International Law; University of Cambridge - Jesus College

Date Written: January 31, 2014

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.

Keywords: international dispute settlement, jurisdiction, admissibility, investment arbitration, Kompetenz-Kompetenz, counterclaims

JEL Classification: K33, K41

Suggested Citation

Waibel, Michael, Investment Arbitration: Jurisdiction and Admissibility (January 31, 2014). University of Cambridge Faculty of Law Research Paper No. 9/2014. Available at SSRN: https://ssrn.com/abstract=2391789 or http://dx.doi.org/10.2139/ssrn.2391789

Michael Waibel (Contact Author)

University of Cambridge - Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

Lauterpacht Centre for International Law ( email )

5 Cranmer Road
Cambridge, CB3 9BL
United Kingdom

University of Cambridge - Jesus College ( email )

Jesus Lane
Cambridge, CB5 8BL
United Kingdom

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