The dichotomy between jurisdiction and admissibility developed in public international law has drawn much attention from arbitrators and judges in recent years. Inspired by Paulsson's ‘tribunal versus claim’ lodestar, attempts have been made to transpose the distinction from public international law to investment treaty arbitration, yielding a mixed reception from tribunals. Remarkably, a second leap of transposition has found firmer footing in commercial arbitration, culminating in the prevailing view of the common law courts in England, Singapore and Hong Kong that arbitral decisions on admissibility are non-reviewable. However, this double transposition from international law to commercial arbitration is misguided. First, admissibility is a concept peculiar to international law and not embodied in domestic arbitral statutes. Second, its importation into commercial arbitration risks undermining the fundamental notion of jurisdiction grounded upon the consent of parties. Third, the duality of ‘night and day’ postulated by Paulsson to distinguish between reviewable and non-reviewable arbitral rulings is best reserved to represent the basic dichotomy between jurisdiction and merits.

In the Diallo case, the ICJ was required to answer the question of whether the Republic of Guinea could exercise diplomatic protection not only on behalf of its national, Diallo, but also on behalf of two corporations which were incorporated in the Democratic Republic of the Congo but which were owned by a national of the Republic of Guinea. While the Court decided, in line with Barcelona Traction, that the exercise of diplomatic protection for violation of direct rights of shareholders was admissible, it did not accept the claim on behalf of the companies ‘by substitution’. In its reasoning it took a rather restrictive view of the existing exceptions to the rule that protection can only be exercised on behalf of nationals.

The ICJ in its judgments on the preliminary objections in the Legality of Use of Force cases held that it had no jurisdiction to hear the claims. Despite the unanimous concurrence in that result, it is clear that there were deep divisions within the Court as to the ground on which that decision should have been reached; only a bare majority subscribed to the reasoning that the Court was required to rule on the question of its jurisdiction ratione personae in relation to Serbia and Montenegro's uncertain status within the United Nations prior to 2000. The minority judges were highly critical of the choice of that basis of decision, in particular given its apparent implications for other cases pending before the Court.

On 5 December 2000 the International Court of Justice adopted amended texts of Articles 79 and 80 of the Rules of Court, dealing respectively with preliminary objections and with counter-claims. The present paper introduces the new articles in the light of the 1978 version of the texts.

On 27 February 1998, the International Court of Justice rejected the preliminary objections of the US and of the UK in the cases concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising From the Aerial Incident at Lockerbie. The arguments made to the Court, and its decisions on jurisdiction and admissibility, are examined with a view to ascertaining the issues facing the Court, as well as the possible outcomes, if the cases reach the merits stage. The disputes over the Montreal Convention are considered, but particular attention is paid to the legal effects and, more widely, the legality of the relevant Security Council resolutions (Resolutions 748 and 883). The underlying question to be considered is whether there are any indications in the judgments that the Court is moving towards review of those resolutions.

State responsibility — Claims — In general — Exhaustion of local remedies — Nature of rule — Exceptions to rule — Whether rule applicable to wrongful acts of Government — Whether rule applicable when local courts not competent to examine relevant issues of international law — Whether rule applicable to claims arising directly between Governments — Determination of nature of claim — Whether dispute arises out of espousal of claim of a national — Exhaustion of local remedies as a procedural bar.

International Court of Justice — Contentious jurisdiction — Competence

Necessity to exhaust local remedies — Nature of plea that local remedies not exhausted — Whether directed to jurisdiction or to admissibility.

Preliminary objections — Reservations — Disputes arising prior to date of acceptance by defendant State of jurisdiction of the Court — Elements constituting dispute — Whether date of acceptance by plaintiff State is relevant — Limits of operation of rule of reciprocity.

International Court of Justice — Contentious jurisdiction — Procedure — Suspension of proceedin~s on the merits upon receipt of a preliminary objection — New submission amounting to new claim on the merits filed after suspension — Admissibility of — Rules of Court, Article 62 (3).

War — In general — Effects of outbreak of — On enemy subjects — With regard to their property — Measures of seizure and retention of enemy property — Determination of enemy character of property — Whether within domestic jurisdiction of State taking such measures.

Disputes — International Court of Justice — Contentious jurisdiction — Competence — Declarations under Article 36 (2) of Statute — Reservation of matters essentially within domestic jurisdiction of declarant State as determined by that State — “Automatic reservation” — Whether objection based on such reservation may be joined to merits — Validity of automatic reservation — Relevance of limited reliance on reservation — Whether affecting validity of declaration as a whole — Severability — Whether reservation compatible with Article 36 (6) of Statute — Immutable character of rules fixed by Statute — Meaning of “obligation” to recognize jurisdiction of Court in Article 36 (2) — Effect of reservation on character of declaration as a legal instrument — Relevance of intention of State to make valid and effective acceptance of jurisdiction — Relevance of past practice of State with regard to arbitral and judicial settlement — Whether condition that reservation be applied “reasonably” may be implied — Distinction between “determined” and “understood” — Whether Court has jurisdiction to decide if reservation exercised in good faith — Principle that Court must be cautious in attributing bad faith or unreasonableness to a sovereign State.