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Mr Zia Ullah Ranjah

Advocate Supreme Court of Pakistan - Jurist Panel Law Firm

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Jurisdiction of Arbitral Tribunals

I. Jurisdiction in general


The power of a court or judge to entertain an action, petition or other proceeding is called jurisdiction.1


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 


There must be a legal dispute for the existence of the jurisdiction of an arbitral tribunal.9 Once the jurisdiction of a tribunal is established, the host State can raise counter claims against the investor for the breach of the obligations it may owe to the host State.10

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).

  1. Personal jurisdiction is limited to disputes ‘between a contracting State (or any constituent subdivision or agency of a Contracting State designated to the Centre by that State) and a national of another Contracting State’.11
  2. Territorial jurisdiction is a characteristic feature of ‘investment’12 as contemplated in Article 25 of the ICSID Convention.13
  3. Temporal jurisdiction must exist on the date when the proceedings are instituted.14 The only limitation on temporal jurisdiction in general international law is the entry into force of the substantive obligation on which the claim is based.15 The intertemporal rule requires that tribunals assess cases before them in light of contemporaneous law, binding on the host State at the time of alleged breach.16 Temporal reservations in the instrument of consent in investment arbitration dictate that tribunals have jurisdiction ratione temporis for the existing and future disputes, not retrospectively.17 
  4. As per Article 25 of the ICSID Convention, subject-matter jurisdiction vests in a tribunal out of ‘any legal dispute arising directly out of an investment’.18 For example, a contested criteria for ‘investment’ was considered by the Salini.19 In UNCITRAL arbitrations, however, the agreement of the parties is the sole determinant of the tribunal’s jurisdiction.20


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:

  1. Procedural requisites, which may be characterized as a matter of either jurisdiction or admissibility.24
  2. Fork in the road clauses that potentially offer an investor a choice between a host State’s domestic courts and international arbitration, but not both.25
  3. The characterization of exhaustion of local remedies as a matter of admissibility.26 Exhausting local remedies requirement is not applicable to arbitrations under the Energy Charter Treaty (ECT) and the North American Free Trade Agreement (NAFTA).27

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.


Charris Benedetti, J.P., The Proposed Investment Court System: Does it Really Solve the Problems?, Revista Derecho del Estado, Vol. 42, 2019 pp. 83-115.

Cavallini, C., On Arbitral Jurisdiction. How to Deal with the Complementarity between Arbitral Tribunals and the Courts?, Global Jurist, Vol. 18(2), 2018.

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.

Perrone, N.M., The Governance of Foreign Investment at a Crossroad: Is an Overlapping Consensus the Way Forward, Global Jurist, Vol. 15(1), 2015, pp. 1-28.

Cook, A., Kompetenz-Kompetenz: Varying Approaches and a Proposal for a Limited Form of Negative Kompetenz-Kompetenz, Pepperdine Law Review, 2014, pp. 17-101.

Rodner, J.O., Marcano, A., Jurisdiction of the Arbitral Tribunal in the Case of Multiple Contracts, Journal of Arbitration Studies, Vol. 24(3), 2014, pp.1-31.

Đundić, P., Consent of the State to Arbitration with Foreign Investor: Modes of Consent, Restrictions and Applicable law, Zbornik Radova: Pravni Fakultet u Novom Sadu, Vol. 47(3), 2013, pp. 359-375.

Priem, C., International Investment Treaty Arbitration as a Potential Check for Domestic Courts Refusing Enforcement of Foreign Arbitration Awards, N.Y.U. J. L. & Bus., Vol.10 2013, pp. 189-513.

Rigo Sureda, A., Investment Treaty Arbitration: Judging under Uncertainty, Cambridge University Press, 2012.

Born, G., A New Generation of International Adjudication, Duke Law Journal, Vol. 61(4), 2012, p. 775.

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.

Hatchondo, J. and Martínez, L., Legal Protection to Foreign Investors, Economic Quarterly - Federal Reserve Bank of Richmond, Vol. 97(2), 2011, pp.175-187.

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.

Garnett, R., National Court Intervention in Arbitration as an Investment Claim, International and Comparative Law Quarterly, Vol. 60(2), 2011, pp. 485-498.

Jansen Calamita, N., Countermeasures and Jurisdiction: between Effectiveness and Fragmentation, Georgetown Journal of International Law, Vol. 42 (2), 2011, p. 233 (69).

Smith, S., Foster, D. et al., International Arbitration, The International Lawyer, Vol. 45(1), 2011, pp. 95-110.

Cole, T., Vaksha, A.K., Power-Conferring Treaties: The Meaning of ‘Investment’ in the ICID Convention, Leiden Journal of International Law, Vol. 24(2), 2011, pp. 305-330.

Buxbaum, H., National Jurisdiction and Global Business Networks, Indiana Journal of Global Legal Studies, Vol. 17(1), 2010, p. 165 (17).

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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