Combating Norm and Forum Shopping in Investment Arbitration

Abstract

The present article seeks to address the norm and forum shopping in investment arbitration that results from the overlap between contract and treaty claims. By no means new, the proliferation of parallel proceedings arising from the same dispute has brought this problem to the forefront of investment arbitration again. The overlap stems from the lack of well-defined spheres of application between treaty and contract: arbitral tribunals have extended the scope of treaties to govern conduct that is not necessarily sovereign, and have construed substantive standards in a broad manner, on occasion reducing the standards to the protection of an investor’s expectations. The difficulty with such interpretations is that they present an investor with a choice as to what standard the host state’s conduct should be measured against, and before which tribunal this should take place. In extreme cases, investors are allowed to initiate simultaneous or subsequent proceedings in connection with the same set of facts before different fora. This discretionary choice of norms and/or duplication of proceedings maximises the investor’s chances not only of recovery but also of success, can allow the investor to put a host state under undue pressure, and may lead to inconsistent decisions. To address this issue, one can clarify the scope of investment treaties by clarifying the conduct treaties are meant to govern and the standards of protection they offer, thus ensuring distinct normative spheres for contract and treaty. Where two norms must nevertheless coexist in respect of the same conduct, tools such as fork-in-the road and waiver provisions can ensure that an investor cannot pursue parallel claims, whether directly or indirectly. If parallel proceedings are nevertheless initiated, concepts such as res judicata have been used to bind the investor to the decisions of the commercial tribunal through which it is claiming even if not a party to the commercial arbitration.