Jurisdictional Conflicts between Investment Treaty and Commercial Arbitration—The Role of Lis Pendens

Abstract

The domain of international investment law is evolving. Today, an increasing number of treaty claims filed against states are based on allegations of a breach of contract. Investment treaty tribunals also tend to affirm jurisdiction over such claims, routinely ignoring that the underlying contract may contain an arbitration agreement in favour of commercial arbitration. This tendency creates a potential jurisdictional conflict between a commercial and investment treaty arbitration proceeding; ripe for investors to exploit. In this context, this article explores the different ways in which investment treaty tribunals have created this jurisdictional conflict. On such basis, it assesses the ameliorative potential of the principle of lis pendens in international arbitration, and whether this potential can be realized in a timely manner.