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Dissertation

Domestic Courts in Investor-State Arbitration: Partners, Suspects, Competitors

On 27 June 2019, Vid Prislan defended his thesis 'Domestic Courts in Investor-State Arbitration: Partners, Suspects, Competitors'. The doctoral research was supervised by Prof. dr. N.J. Schrijver.

Author
Vid Prislan
Date
27 June 2019
Links
Leiden Repository

Foreign investors have come to prefer international arbitration as a mechanism for resolving disputes with States hosting their investments. But how do these international arbitral tribunals, which operate independently from the judicial system of the host State and are composed of foreign arbitrators not necessarily knowledgeable about local law, relate to host State’s domestic courts? Are these tribunals bound by those courts’ pronouncements on points of applicable local law? Do these tribunals defer to domestic judicial procedures when the same dispute is before domestic courts? Furthermore, how do these tribunals scrutinize the conduct of domestic courts when this has caused injury to the investor and its investment?

These are the type of questions that this dissertation addresses by mapping the roles that investment tribunals accord to domestic courts when arbitrating disputes between States and foreign investors. Based on an extensive and in-depth analysis of arbitral jurisprudence, the dissertation demonstrates that the courts’ roles can be conceptualized in three ways. First, as partners, when it comes to assisting tribunals in determining the content of the law; second, as suspects, when their conduct becomes the object of the tribunals’ scrutiny; and third, as competitors, when courts themselves provide a potential avenue for redressing injuries suffered by investors at the hands of a host State’s authorities. The dissertation sheds light on a key dimension of the relationship between national judicial organs and international adjudicatory bodies and thus informs further development and reform of the current system of investor-State dispute settlement.

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