The Authority of Investment Treaty Tribunals to Issue Orders Restraining Domestic Court Proceedings

Abstract

This article considers the authority of investment treaty tribunals to issue provisional measures affecting domestic courts or, as they are more commonly known, ‘anti-suit injunctions’. In particular, the article examines provisional measures of the kind ordered in the Chevron v Ecuador dispute, essentially to prevent the aggravation of an alleged denial of justice. It is contended that there is something distinctive about injunctive relief restraining another court or tribunal which is not necessarily captured by applying the standard provisional measures formula. It is further contended that measures restraining the continuation or enforcement of domestic court proceedings on the basis of the non-aggravation principle raise special considerations of comity and a concomitant need for care. The same considerations do not arise, at least not to the same degree, with respect to measures which seek to restrain domestic court proceedings in order to preserve the exclusivity or procedural integrity of investment treaty arbitration proceedings. The article concludes that there is an important difference between jurisdiction and authority. Investment treaty arbitration is one legal system amongst many, and cannot afford to appear insensitive to the concerns of domestic legal orders. That is so even where a serious breach of international law appears to be taking place. Investment treaty arbitration tribunals should be wary of applying a generic provisional measures test without first explaining and justifying a tailored anti-suit injunction analysis, which sets a principled and appropriately high bar for intervention. ‘John Marshall has made his decision; now let him enforce it!’ E Miles ‘After John Marshall's Decision: Worcester v Georgia and the Nullification Crisis’ (1973) 39 J South Hist 519, 519.