Journal Article

Admissibility of claims in investment treaty arbitration

Saar A Pauker

in Arbitration International

Published on behalf of The London Court of International Arbitration

Volume 34, issue 1, pages 1-78
Published in print March 2018 | ISSN: 0957-0411
Published online April 2018 | e-ISSN: 1875-8398 | DOI: https://dx.doi.org/10.1093/arbint/aiy009
Admissibility of claims in investment treaty arbitration

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Abstract

(In)admissibility of claims is a well-known doctrine in international litigation, which allows international courts or tribunals, having assumed jurisdiction over an international claim, to refuse exercising that jurisdiction.

Investment treaties, as well as the International Center for the Settlement of Investment Disputes (ICSID) Convention, prescribe detailed jurisdictional requirements covering various issues that are commonly regarded as relating to the admissibility of claims in general international law (e.g. nationality). Accordingly, questions arise as to what role (if any) the concept of admissibility has to play in investment treaty arbitration. Cases and scholarly writings are divergent and inconsistent as regards this question.

The article suggests some guidelines in this respect. Generally, and subject to any treaty provision to the contrary, it argues that recourse for the doctrine of admissibility as a bar or limitation to the exercise of jurisdiction over investors’ claims should be made with considerable caution.

It is further suggested that the ‘ancestral roots’ of various conditions for the State’s consent (eg the prior local recourse period), while not altering the jurisdictional nature of such requirements, justify adopting median solutions, such as staying the proceedings for a certain period of time, instead of dismissing the claim.

Journal Article.  43330 words. 

Subjects: Arbitration ; Company and Commercial Law ; Competition Law ; Employment and Labour Law ; Settlement of Disputes

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