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World Court Digest

III. The International Court of Justice
2.9. Review of Arbitral Awards

¤ Arbitral Award of 31 July 1989,
Judgment, I.C.J. Reports 1991, p. 53

[pp. 61-62] 22. The Court will first consider its jurisdiction. In its Application, Guinea-Bissau founds the jurisdiction of the Court on "the Declarations by which the Republic of Guinea-Bissau and the Republic of Senegal have respectively accepted the jurisdiction of the Court under the conditions set forth in Article 36, paragraph 2, of the Statute" of the Court. These declarations were deposited with the Secretary-General of the United Nations, in the case of Senegal on 2 December 1985, and in the case of Guinea-Bissau on 7 August 1989. Guinea-Bissau's declaration contained no reservation; Senegal's declaration, which replaced a previous declaration of 3 May 1985, provided that

"Senegal may reject the Court's competence in respect of:
- Disputes in regard to which the parties have agreed to have recourse to some other method of settlement;
- Disputes with regard to questions which, under international law, fall exclusively within the jurisdiction of Senegal."

That declaration was also expressed as being applicable solely to "all legal disputes arising after the present declaration ..."

23. Senegal observed that if Guinea-Bissau were to challenge the decision of the Arbitration Tribunal on the merits, it would be raising a question excluded from the Court's jurisdiction by the terms of Senegal's declaration. According to Senegal, the dispute concerning the maritime delimitation was the subject of the Arbitration Agreement of 12 March 1985 and consequently fell into the category of disputes "in regard to which the parties have agreed to have recourse to some other method of settlement". Furthermore, in the view of Senegal, that dispute arose before 2 December 1985, the date on which Senegal's acceptance of the compulsory jurisdiction of the Court became effective, and is thus excluded from the category of disputes "arising after" that declaration.

24. However, the Parties were agreed that there was a distinction between the substantive dispute relating to maritime delimitation, and the dispute relating to the Award rendered by the Arbitration Tribunal, and that only the latter dispute, which arose after the Senegalese declaration, is the subject of the present proceedings before the Court. Guinea-Bissau also took the position, which Senegal accepted, that these proceedings were not intended by way of appeal from the Award or as an application for revision of it. Thus, both Parties recognize that no aspect of the substantive delimitation dispute is involved. On this basis, Senegal did not dispute that the Court had jurisdiction to entertain the Application under Article 36, paragraph 2, of the Statute. In the circumstances of the case the Court regards its jurisdiction as established.

[p. 80 Decl. Mbaye] I fail to see why the International Court of Justice should automatically constitute itself as a cour de cassation for all States having made declarations under Article 36, paragraph 2, of its Statute, with respect to all arbitral awards in cases to which those States are parties, even if the Court were each time to take care not to act as a court of appeal or as one revising the award. That the need to decide a "question of international law" has been raised is surely not sufficient justification for such an inroad into another means of settlement of disputes between States. To deny this would be to embark on an adventure which would have disastrous consequences not confined to arbitral decisions. The Court has fortunately refused to take this path.

[p. 88 S.O. Oda] Guinea-Bissau found it appropriate to put to the Court a question as to whether the 1989 Award (which in any event did not settle the dispute) was existent or not, valid or null and void. But whatever judgment might have been given by the Court in the present case (in fact the submissions of Guinea-Bissau are rejected in the present Judgment) - in other words, even if the Court had declared the Arbitral Award nonexistent or null and void -, the positions of Guinea-Bissau and Senegal, or their interests and rights relating to the boundary of the exclusive economic zones, could not have been affected.

[p. 92 S.O. Lachs] In this regard, the Court's exercise of its competence to deal with the specific submissions did not, in my view, prevent it from proceeding to closer analysis, without in any way encroaching upon the substance of the issues which it had been for the Arbitration Tribunal alone to decide. A complaint of nullity does not in itself debar the court dealing with it from lifting the veil on matters of competence and substance, provided they are germane to the issue of validity, since the handling of such matters, as distinct from procedural issues of a purely formal nature, may in fact lie at the heart of the complaint. The Court was not precluded from making comments in keeping with its position as a guardian of the standards of judicial decision-making, and thus performing a signal service to the sister institution of arbitration.