Arbitral Jurisdictional Regulation in Investment Treaty Arbitration and Domestic Courts

Abstract

Arbitral tribunals in the field of investment treaty arbitration have generated rules governing their own jurisdiction. This article examines the effect of the controlling role of domestic courts on the development of arbitral jurisdictional regulation, tracking the treatment of arbitrator-made jurisdictional rules by domestic courts reviewing investment arbitral decisions. The article finds that domestic courts have not been resistant to but rather supportive of the proliferation of arbitrator-made jurisdictional rules. First, domestic courts have relied on such rules and treated their development as parts of interpretative exercises and as part of the arbitral judicial function. Second, domestic courts have engaged in discourses on the appropriateness of arbitrator-made jurisdictional rules in substance. This practice contradicts the expectation that domestic courts would contest arbitral jurisdictional regulation and shows the potential of domestic courts to contribute to the production of nuanced rules governing the jurisdiction of investment arbitral tribunals.