Investor-State Dispute Settlement and National Courts
Current Framework and Reform Options
- Open Access
- 2020
- Open Access
- Book
- 1. edition
- Authors
- Gabrielle Kaufmann-Kohler
- Michele Potestà
- Book Series
- European Yearbook of International Economic Law
- Publisher
- Springer International Publishing
About this book
This open access book examines the multiple intersections between national and international courts in the field of investment protection, and suggests possible modes for regulating future jurisdictional interactions between domestic courts and international tribunals. The current system of foreign investment protection consists of more than 3,000 international investment agreements (IIAs), most of which provide for investment arbitration as the forum for the resolution of disputes between foreign investors and host States. However, national courts also have jurisdiction over certain matters involving cross-border investments. International investment tribunals and national courts thus interact in a number of ways, which range from harmonious co-existence to reinforcing complementation, reciprocal supervision and, occasionally, competition and discord. The book maps this complex relationship between dispute settlement bodies in the current investment treaty context and assesses the potential role of domestic courts in future treaty frameworks that could emerge from the States’ current efforts to reform the system.The book concludes that, in certain areas of interaction between domestic courts and international investment tribunals, the “division of labor” between the two bodies is not always optimal, producing inefficiencies that burden the system as a whole. In these areas, there is a need for improvement by introducing a more fruitful allocation of tasks between domestic and international courts and tribunals – whatever form(s) the international mechanism for the settlement of investment disputes may take.Given its scope, the book contributes not only to legal analysis, but also to the policy reflections that are needed for ongoing efforts to reform investor-State dispute settlement.
Table of Contents
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Chapter 1. Scope and Objective of This Study
- Open Access
Download PDF-versionAbstractThe objective of this study is to examine the multiple intersections between national and international courts in the field of investment protection, and to suggest possible modes for regulating jurisdictional interactions between domestic courts and international tribunals going forward. It seeks to contribute not only to the legal analysis, but also to the policy reflections that are necessarily linked to the ongoing initiatives for the reform of investor-State dispute settlement. -
Chapter 2. Why Investment Arbitration and Not Domestic Courts? The Origins of the Modern Investment Dispute Resolution System, Criticism, and Future Outlook
- Open Access
Download PDF-versionAbstractThis chapter reviews the existing criticism of investor-State dispute settlement in relation to the role of domestic courts. In essence, this criticism contends that the IIA investment arbitration regime does not account for situations in which domestic courts offer adequate access to justice and discriminates against domestic investors by granting only (certain) foreign investors a privileged procedural track. In order to place such criticism in a broader context, the study provides an overview of the historical, economic, and political reasons that underpin the creation of the current investment dispute settlement system and discusses whether these motivations still justify the existence of an international system of investment dispute resolution, whether in the form of arbitration or standing adjudicatory bodies. -
Chapter 3. The Interplay Between Investor-State Arbitration and Domestic Courts in the Existing IIA Framework
- Open Access
Download PDF-versionAbstractThis chapter surveys how the inter-relationship between domestic courts and investor-State arbitration plays out in the current investment treaty framework. It first looks at the allocation of jurisdiction over investment disputes between courts and arbitral tribunals. Because multiple fora, national and international, may be empowered to adjudicate what in substance is one and the same dispute, jurisdictional overlaps are bound to occur and have indeed become more frequent. In order to coordinate national and international proceedings, States have devised several models in their IIAs, which respond to different needs and policies. The diverse solutions contained in IIAs include rules on exhaustion of local remedies, domestic litigation requirements short of exhaustion, fork-in-the-road clauses, and waiver provisions. Despite their potential to address jurisdictional overlaps, these clauses could be improved in order to better capture certain undesirable consequences arising from duplicative proceedings in national and international fora. Significant interactions between domestic courts and international tribunals occur also when courts exercise supervisory functions over investment arbitration proceedings, in particular at annulment and enforcement. In a further facet of the interplay, investor-State tribunals scrutinize the decisions of domestic courts when faced with a claim alleging court misconduct. -
Chapter 4. The Path to Reform of ISDS: What Role for National Courts?
- Open Access
Download PDF-versionAbstractThis chapter analyzes the possible role which national courts could play in the main reform scenarios which States are currently considering, i.e., if investment arbitration is (i) reformed through targeted adjustments, (ii) supplemented with an appellate mechanism, (iii) replaced by a multilateral investment court, or (iv) supplanted by inter-State mechanisms. Each of these reform scenarios raises specific challenges when it comes to their articulation with domestic courts. -
Chapter 5. Conclusions and Recommendations
- Open Access
Download PDF-versionAbstractIn this conclusive chapter, the authors discuss how in certain areas of interactions between domestic courts and international investment tribunals, the “division of labor” between the two types of dispute settlement bodies is not always optimal, with the result that inefficiencies burden the system. In these areas, there is a need for improvement by providing for a more fruitful allocation of tasks among domestic and international courts and tribunals, whatever form the latter may take.
- Title
- Investor-State Dispute Settlement and National Courts
- Authors
-
Gabrielle Kaufmann-Kohler
Michele Potestà
- Copyright Year
- 2020
- Publisher
- Springer International Publishing
- Electronic ISBN
- 978-3-030-44164-7
- Print ISBN
- 978-3-030-44163-0
- DOI
- https://doi.org/10.1007/978-3-030-44164-7
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