Jurisdictional Overlap in WTO Dispute Settlement and Investment Arbitration

Brooks E. Allen & Tommaso Soave, "Jurisdictional Overlap in WTO Dispute Settlement and Investment Arbitration", 30 Arbitration International 1 (2014)

60 Pages Posted: 7 Jun 2014

See all articles by Brooks Allen

Brooks Allen

Office of the United States Trade Representative

Tommaso Soave

Graduate Institute of International and Development Studies (IHEID); Central European University (CEU)

Date Written: June 6, 2014

Abstract

The 'problem' of overlapping international disputes has long vexed scholars and adjudicators. This article addresses an increasingly important form of overlap that has begun to emerge: parallel or successive disputes before the World Trade Organization (WTO) and investor-state arbitral tribunals. This overlap does not give rise to judicial competition, and these proceedings are largely complementary. But they raise the possibility of conflicting factual and legal determinations, inconsistent remedies, and inefficiencies.

This article considers various techniques for addressing this form of overlap, in light of existing jurisprudence, scholarly commentary, and treaty practice. We conclude that investment tribunals generally have greater flexibility in confronting situations of overlap than WTO panels and the Appellate Body. Nonetheless, many of the traditional adjudicative approaches to overlap, such as res judicata, have little bearing on the phenomenon of overlapping WTO and investment disputes. This article explores alternative approaches, grounded in considerations of comity and case management. We also consider treaty-based approaches, such as subject matter carve-outs and fork-in-the-road clauses. We conclude that 'softer' treaty provisions, which provide decision-makers with more authority and guidance in confronting situations of overlap, hold greater promise.

Keywords: WTO, dispute settlement, investment arbitration, international law, fragmentation, jurisdicional overlap

JEL Classification: K33

Suggested Citation

Allen, Brooks and Soave, Tommaso, Jurisdictional Overlap in WTO Dispute Settlement and Investment Arbitration (June 6, 2014). Brooks E. Allen & Tommaso Soave, "Jurisdictional Overlap in WTO Dispute Settlement and Investment Arbitration", 30 Arbitration International 1 (2014), Available at SSRN: https://ssrn.com/abstract=2446806

Brooks Allen

Office of the United States Trade Representative

Council of Economics Advisers
Washington, DC 20502
United States

Tommaso Soave (Contact Author)

Graduate Institute of International and Development Studies (IHEID) ( email )

PO Box 136
Geneva, CH-1211
Switzerland

HOME PAGE: http://https://graduateinstitute.ch/academic-departments/faculty/tommaso-soave

Central European University (CEU) ( email )

Nador utca 9
Budapest, H-1051
Hungary
+436764514355 (Phone)

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