Incidental Questions as a Gatekeeping Doctrine
Journal: AJIL Unbound
Year: 2022

In this essay, I discuss whether and to what extent the framing of the main dispute and incidental questions can have a gatekeeping function in relation to the jurisdiction and applicable law of a dispute settlement body. Recent cases have attached critical importance to the identification of the “real” main object of the dispute, and the “characterization” of claims to then determine which issues are incidental to the dispute, rather than focusing on which issues are within the tribunal's ratio