Litigating the limits: preliminary objections and State strategy in ISDS

Preliminary objections in international legal disputes are ubiquitous and yet are curiously overlooked. Taken at face value, the submission of preliminary objections may reflect a deeply held belief about the bounds of consent a disputing party has given to international third-party adjudication. But it may also manifest strategic action on the part of the respondent to make the dispute settlement process more costly or time-consuming for the complainant, or to signal to future, would-be complainants that they will face similar treatment if they launch a case. In this article, we ask three interrelated questions. First, what types of preliminary objections exist in international legal disputes? Second, to what extent are different preliminary objections used by different States in practice, and how does usage vary over time? Third, what practical and political considerations do States make when filing preliminary objections? We propose a first look at these questions using a unique dataset on preliminary objections in investor–State dispute settlement that draws data from 795 cases over a 25-year period. In creating the dataset, we develop a typology of preliminary objections. We next explore some high-level tendencies in the practice of preliminary objections in investor–State disputes over time. Finally, we present in-depth case studies of Argentine and Canadian litigation practices, respectively, before we discuss future applications of our data and the transposition of our research to other fields.