Chapter 12: Procedure and process
How is the Court seized of a dispute? Seizing the Court is the starting point of the procedure; a valid seizing will lead to the case being entered on the list of pending cases at the ICJ. The question of seizing is concerned only with the way in which a case may be brought before the Court; the question of the Court’s jurisdiction to hear a case of which it has been seized is a separate matter. It will, if necessary, be tested at the preliminary objections phase. It would be wrong to argue that when the Court is duly seized of a case it thus automatically has jurisdiction to hear it. There are other matters to be noted here. First, article 40 of the Statute provides: ‘Cases are brought before the Court, as the case may be, either by the notification of the special agreement or by a written application addressed to the Registrar.’ The Court can thus be seized of a case through either the joint or unilateral notification of a special agreement establishing its jurisdiction. It can also be seized by a unilateral application in two sets of circumstances: (i) a compulsory pre-existing jurisdictional agreement; or (ii) an express or implied request to the respondent to agree to the Court’s jurisdiction on the basis of the forum prorogatum.
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