XIV Election of Forum: Treaty Arbitration, National Courts or Contract Arbitration

Subject(s):

Investment ‘in accordance with host state law’ — Investor — Conduct of proceedings

This chapter examines the three primary fora for the adjudication of investor-state disputes: the national courts where the investment is made; an arbitral forum that the parties may have selected by contract; and an investment treaty tribunal. It explains how fork in the road and waiver clauses operate. The more common type of fork in the road provision requires that the investor-claimant choose a forum at the outset of the dispute resolution process. A claimant’s commencement of national court litigation may preclude recourse to investment treaty arbitration at some later time and vice versa. Meanwhile, a growing number of investment treaties establish a different provision with respect to the choice of remedies, which has become known as the waiver approach: an investor must waive its rights to initiate or continue local litigation before it can file for treaty arbitration. Such waiver clauses prevent only a return to local courts once international arbitration has been selected.