3 - Availability of dispute settlement under Article 26

Summary

Introduction – jurisdiction and admissibility

In an arbitration under the Energy Charter Treaty, as in any arbitration, two preliminary issues must logically be determined by the arbitral tribunal before it embarks upon consideration of the merits of a dispute (though whether determination of these preliminary issues requires a preliminary hearing is a different matter which is discussed below). The first is whether or not the claim on which the claimant asks the tribunal to adjudicate is one in respect of which the tribunal has jurisdiction. The second is whether the claim is admissible. The distinction between the two has been explained as follows:

Objections to the jurisdiction, if successful, stop all proceedings in the case, since they strike at the competence of the Tribunal to give rulings as to the merits or admissibility of the claim. An objection to the substantive admissibility of a claim invites the Tribunal to reject the claim on a ground distinct from the merits …

As Paulsson has put it, one can answer the question, ‘Is an objection one of jurisdiction or admissibility?’ by asking, ‘Is the objecting party taking aim at the tribunal [(jurisdiction)] or at the claim [(admissibility)]?’ In the context of a treaty arbitration, the issue of jurisdiction may be said to comprise the question whether the dispute is one in respect of which the host state, by becoming a party to the Treaty, has given its consent to arbitration.