Available in Russian
Authors: Daria Boklan, Nikita Sinitsin
Keywords: World Trade Organization; Dispute Settlement Body of the WTO; international investment arbitration; jurisdiction; jurisdictional competition; overlapping jurisdiction; fragmentation of international law
The development of international economic relations has led to the emergence of independent dispute resolution mechanisms such as the Dispute Settlement Body of the World Trade Organization (DSB WTO) and international investment arbitration. However, in recent years there has been an increasing number of disputes with similar factual circumstances that were referred simultaneously to the DSB WTO and to international investment arbitration. As a result, procedural and substantive overlaps between the two fora have emerged. Whether this trend has a positive or negative effect is still an open question. On the one hand, the fact that the resolution of an international dispute may be considered by several international judicial bodies gives a disputing party the possibility of choosing a specialized forum, which makes the final outcome more efficient. On the other hand, the existence of several dispute resolution bodies that consider disputes arising from similar factual backgrounds further exacerbates the fragmentation of international economic law. This article is devoted to an analysis of jurisdictional aspects of the DSB WTO and international investment arbitration in the context of possible overlaps in both their procedural and substantive parts. The analysis reveals that the doctrines of res judicata and systematic interpretation do not provide effective remedies to prevent and overcome the overlaps between the DSB WTO and international investment arbitration. The authors believe that the problem of overlapping jurisdictions of the DSB WTO and international investment arbitration can be solved if a prior decision by one forum is evaluated by the other forum as factual evidence in the dispute and if an interpretation made by one forum is taken into account by the other forum in its decision-making.
About the authors: Daria Boklan – Doctor of Sciences in Law, Professor, Department of International Law, Faculty of Law, Higher School of Economics, Moscow, Russia; Nikita Sinitsin – Ph.D. Student, Department of International Law, Faculty of Law, Higher School of Economics, Moscow, Russia.
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