I. Jurisdiction in general
The jurisdiction of arbitral tribunals may be based on investor-State consent,2 contained in an arbitration clause,3 in an investor-State contract, in investment codes of a host State, or in the provisions of investment treaties.4 In arbitration without privity, consent is one layer removed from particular investment transactions.5
Whereas jurisdiction considerations typically look at the dispute as a whole, admissibility is concerned with particular claims.6
Jurisdiction pertains to the competence of a tribunal to adjudicate a particular case, whereas questions as to applicable law are concerned with the rules the tribunal should apply.7
II. Competence of arbitral tribunals
The arbitral tribunal’s power to determine its own jurisdiction is called competence-competence.8
III. Scope of jurisdiction
The jurisdiction of arbitral tribunals can be divided into four subjects: personal jurisdiction (ratione personae); territorial jurisdiction (ratione loci); temporal jurisdiction (ratione temporis); and subject-matter jurisdiction (ratione materiae).
Practitioners should also consider the impact on jurisdiction of overlapping agreements and resulting obligations. For example, no jurisprudence constante exists on whether investors can use MFN clauses to import more favourable dispute resolution provisions from third-party Bilateral Investment Treaties (BITs).21
IV. Jurisdiction and admissibility: A 'twilight zone'
Jurisdiction and admissibility are terms that are sometimes used interchangeably.22 Classifying a matter as relating to jurisdiction, or alternatively as relating to admissibility, may have serious consequences for the parties and their dispute.23 Examples of issues arising from such classification include:
V. Concluding remarks
This note examines some important issues concerning jurisdiction of arbitral tribunals in international investment disputes including investor-State consent, competence of tribunals, personal, territorial, temporal, subject-matter jurisdiction, investment, MFN clauses, distinction between jurisdiction and admissibility, procedural requisites, and fork in the road clauses. In ICSID cases, the tribunal’s jurisdiction is determined under Article 25 of the ICSID Convention and the instrument of consent. Any determination of jurisdiction and admissibility will have important consequences for the parties.
Pérez-Aznar, F., The Use of Most-Favoured-Nation Clauses to Import Substantive Treaty Provisions in International Investment Agreements, Journal of International Economic Law, Vol. 20(4), 2017, pp. 777-805.
Rosenfeld, F., Arbitral Praeliminaria- Reflections on the Distinction between Admissibility and Jurisdiction after BG V. Argentina, Leiden Journal of International Law, Vol. 29(1), 2016, pp.137-153.
Hassan Sadeghi Moghadam, M. and Jafari Nedoushan, S., The Effect of “Fork in the Road” and on the Jurisdiction of Investment Treaty Arbitral Tribunal in Foreign Investment Disputes, Journal of Public Law Research, Vol. 17(49), 2016, pp. 37-56.
Habibzadeh, T . and Gholami, A., Foreign Investment Contract and Scope of Host State Commitments Arising from Treaty, Journal of Public Law Research, Vol. 18(51), 2016, pp. 81-109.
Fontanelli, F., Deference in International Courts and Tribunals-Standard of Review and Margin of Appreciation, European Journal of Risk Regulation, European Journal of Risk Regulation, 2016, Vol.7(1), pp. 230-233
Lee, J., Resolving Concerns of Treaty Shopping in International Investment Arbitration, Journal of International Dispute Settlement, 2015, Vol. 6(2), pp. 355-379.
Rigo Sureda, A., Investment Treaty Arbitration: Judging under Uncertainty, Cambridge University Press, 2012.
Đundić, P., Provisions on Waiting Periods in International Investment Protection Treaties and their Impact on the Jurisdcition of Arbitral Tribunals, Zbornik Radova: Pravni Fakultet u Novom Sadu, Vol. 46(2), 2012, pp. 355-374.
Blanchard, S., State Consent, Temporal Jurisdiction, and the Importance of Continuing Circumstances Analysis into International Investment Arbitration, Washington University Global Studies Law Review, Vol. 10, 2011, pp. 419-837.
Smith, S., Foster, D. et al., International Arbitration, The International Lawyer, Vol. 45(1), 2011, pp. 95-110.
Crawford J., Treaty and Contract in Investment Arbitration, Arbitration International, Vol. 24, 2008, pp. 351-374.
Friedland, P.D., Martínez, L. and Caron, D.D., The UNICTRAL Arbitration Rules: A Commentary, A.J.I.L., Vol. 101, 2007, pp. 519-941.
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