Jurisdictional overlap between domestic courts and investment arbitration: an occasion for judicial dialogue

Abstract

Abstract Since investors can commonly bring claims under both an international investment treaty and contracts, domestic courts and investment treaty tribunals may compete for jurisdiction over what is—in essence—the same dispute. While much has been written about the distinction between treaty and contract as well as its application in practice, relatively little attention has been paid to the extent of judicial dialogue between domestic courts and investment arbitration regarding this jurisdictional overlap. Investment treaty tribunals have arguably circumvented the issue altogether and show remarkably little restraint when faced with a conflicting contractual forum-selection clause. This current conceptual position presents several issues, however, which domestic courts may encourage arbitral tribunals to overcome. Finding an occasion for more judicial dialogue should therefore not be perceived as an undue encroachment of domestic courts on the autonomous nature of arbitration, but rather as an incentive for investment treaty tribunals to scrutinize the limits of their own jurisdiction more carefully and to start regulating the issue of jurisdictional overlap differently.