Contractual Choice of Forum in International Investment Arbitration
pages 47 - 72
ABSTRACT:

Bilateral investment treaties (BITs) establish standards of the treatment of international investments. These treaties vest arbitration with the jurisdiction over alleged breaches thereof. Consequently, the jurisdiction of treaty tribunal is a logical corollary of guarantees stipulated in the treaty. This is not the case of contract claims, where a treaty tribunal is only one of conceivable fora to whom jurisdiction may be conferred by the parties. Although BIT tribunals can be vested with the jurisdiction over contract claims, it will be a kind of additional facility to adjudicate on them. Thus, as far as contract claims are at issue treaty tribunal are on the same footing as domestic courts or international commercial arbitration tribunals. It follows from the case-law of tribunals based on bilateral investment treaties that they were unwilling to decline jurisdiction over treaty claims, but they were seriously concerned about the enforceability of contractual selection clauses when contract claims were at issue. In some cases they narrowly construed the scope of a DRC, in other they used the concept of inadmissibility.

keywords
foreign investment
jurisdiction
arbitration
dispute-settlement
dispute resolution clauses (DRCs)
bilateral investment treaties (BITs)
BIT arbitration
treaty claims
contract claims
domestic law
international law
umbrella clause
consent
choice of court (agreement
clause)
forum selection (agreement
clause)
about the authors

Dr. Marcin Czepelak is a lecturer at the Jagiellonian University in Kraków and an expert for the European Commission – member of PRM III Group.

e-mail: marcin.czepelak@interia.pl

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