SOME JURISDICTIONAL QUESTIONS
38. General cons iderations. -- A number of questions have been or may be raised with regard to the jurisdiction of international tribunals. The general observation may be made that jurisdiction must be ample to cover that of the person, usually the state, and of the subject-matter, with authority to grant the particular relief. Questions of this nature are determined in the first instance by resorting to the protocol, beyond which the tribunal has no right to go even in the name of equity. This jurisdiction as between them may extend as far as may be agreed upon by the parties, and contemplates any kind of remedy to which they may consent. The tribunal itself must and does have power to pass upon its own jurisdiction.
If a jurisdictional question be not raised by the parties it may be raised by the court, which, if it finds itself justified in so doing, will refuse jurisdiction.1
A troublesome question may arise as to whether and when an international court has exceeded its jurisdiction. As to this there is no completely satisfactory answer applicable on all occasions, if no appellate tribunal be provided. Even then its determination may be called into question. About all one can say is that, a final judgment being arrived at, the party deeming itself aggrieved may make representations to the successful one relative to the errors complained of and seek a settlement out of court or the establishment of a new reviewing tribunal. If these are refused, nothing remains. The case is in no wise different from that arising from errors of other sorts, as for instance from error in the application of the facts presented. Meanwhile the award has to be met.
An illustration of an award finally in large measure held erroneous for want of jurisdiction is afforded by the case of the Orinoco Shipping and Trading Co. In this the original award was made by an umpire and in part confirmed and in part set aside by the Hague Permanent Court of Arbitration.
The general power to set aside the action of arbitral courts will be further discussed under the head of Awards.
39. Jurisdiction over the person. -- Doubt upon this sort of jurisdiction can rarely arise in international tribunals, usually created as they are by compromis or its equivalent, which involves the consent of____________________