Law Of Forum Selection: The Jurisprudential Narratives Of Remedies For The Foreign Investor In The Appropriate Relevant Forum

Abstract

What is the appropriate forum for the settlement of foreign investment disputes? Is it the host State's judicial system or the international arbitration system? How could one resolve the conflict between an investment agreement, which asserts the exclusive jurisdiction of the domestic courts, and an international treaty to which the host State and the investor's state of nationality are parties, which gives the investor the discretion of choosing between domestic adjudication and international arbitration? How may a delicate balance between domestic and international dispute resolution mechanisms be struck, ensuring that the forum selection is made on some clear and workable principles? This article argues that the practice of forum selection with respect to foreign investment disputes has evolved a pragmatic jurisprudence which, based on fundamental principles of international law, envisages the employment of various criteria to ensure finality of awards and discourage duplicative litigation. This article shows how, in order to ensure access to international arbitration, investor-state arbitration jurisprudence has adopted an interpretation of "fork in the road" and "waiver" provisions in investment treaties with a view to preserving, as far as possible, the jurisdiction of international arbitral tribunals. It examines how tribunals have resorted to the "triple identity" test or the "fundamental basis" test in determining whether a particular investment dispute is more appropriate for settlement at domestic level or through international arbitration. In the process, questions concerning the determination of jurisdiction, nature of the dispute and the governing law aid the development of the law of forum selection and serve to resolve investment disputes with certainty and finality.

Keywords: Bilateral investment treaties, foreign investment protection, fork in the road, forum selection, ICSID Convention, international arbitration, investor-state dispute settlement, waiver of local remedies