29 Oct Christoph Schreuer – Jurisdiction and Applicable Law in Investment Treaty Arbitration
This article first discusses the law governing a tribunal’s jurisdiction. Jurisdiction is governed primarily by the instrument(s) bestowing jurisdiction. In the case of treaty arbitration, this will be the treaty offering consent to arbitration. On certain points, like the legality of the investment and the investor’s nationality, that treaty will refer to domestic law. A second part deals with the varying scope of jurisdiction exercised by investment treaty tribunals. It ranges from a wide jurisdiction over all disputes arising from investments to jurisdiction only over certain narrowly defined disputes. There is no clear correlation between these jurisdictional clauses and provisions on applicable law in the relevant treaties. A third part looks at situations in which the tribunal’s jurisdiction and the applicable law derive from different sources. This is the case, in particular, where the tribunal applies substantive standards that existed before the entry into force of the treaty providing for jurisdiction.