I am in agreement with the Tribunal’s Judgment but have reservations on a few points and observations on others.
I agree with the Tribunal that the object and purpose of the 1998 Agreement was “to transfer to the Tribunal the same dispute that would have been the subject of the proceedings before the arbitral tribunal” (paragraph 51). The Tribunal also argues, correctly, in my opinion, that “[b]efore the arbitral tribunal, each party would have retained the general right to present its contentions”, which would presumably cover Guinea’s right to present objections to admissibility. However, I cannot follow the argument that the parties have “the same general right” before the Tribunal in spite of the terms of the 1998 Agreement. The implication seems to be that the transference of the dispute to the Tribunal somehow also carried with it the right for Guinea to raise objections other than the objection specifically mentioned in the 1998 Agreement i.e. “the objection as to jurisdiction raised in the Government of Guinea’s Statement of Response dated 30 January 1998”. The dispute has been transferred but the faculty of making other objections has not been.
Guinea has based its right to submit objections to the admissibility of the application on, inter alia, the travaux préparatoires of the Agreement. At the oral pleadings (ITLOS/PV.99/8) Guinea referred to the correspondence between the parties which, in its view, supported its argument that objections to admissibility were not precluded from being raised. It referred in particular to Mr. Howe’s letter of 29 January 1998. The relevant part of this letter stated that Saint Vincent and the Grenadines would agree to submit the dispute to the Tribunal provided the following provision, inter alia, was included: