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Panelist: Andreas Kulick, Senior Research Fellow, Eberhard Karls University Tübingen, Germany. Visiting professor, University of Cologne (*)

Moderator: Carlos Espósito, Chaired Professor of Public International Law, Universidad Autónoma de Madrid.

Objectives: International courts and tribunals only enjoy jurisdiction to settle a dispute if what is submitted before them is precisely thus – a “dispute”. From Article 36(2) of the ICJ Statute over Articles 286 and 287 UNCLOS to the dispute settlement clauses in international investment agreements – both, with respect to investor-state and state-state arbitration – international adjudication usually requires demonstration that the parties are in fact engaged in a “dispute”. According to the World Court, a “dispute” is a “disagreement on a point of fact or law”. However, what if the parties disagree over whether there actually exists such disagreement? What if, say, in a state-state investment arbitration under a BIT, the opposing party refused to respond to the applicant’s submissions prior to the introduction of proceedings? Or, before the ICJ, the respondent argues that there is no “dispute” because it declined to react to the applicant’s contentions? In other words, can a disputing party avoid a dispute by playing dead? On the other hand, where to draw the line in order to prevent the applicant from seizing an international court or tribunal where there is in fact no real disagreement among the parties?The session will address these matters analysing recent ICJ jurisprudence and arbitrations between States, including in the framework of international investment agreements, and discussing the implications of various approaches to addressing the issues raised.