Nicola Claire Strain

In comparison to many common law domestic systems, there is much less discussion of jurisdiction in international court judgments, leading to a more limited understanding of the limits of international courts’ jurisdiction. This has led to inconsistent, and sometimes incoherent, decisions on the jurisdiction of international tribunals, including by the World Trade Organization (“WTO”) dispute settlement mechanism and investor-state arbitral tribunals. As the limits of the term, ‘jurisdiction’ is relatively unclear, the line between ‘jurisdiction’ and ‘applicable law’ is necessarily blurred. For some scholars, there is a “crucial distinction” between jurisdiction and applicable law, noting that a limited jurisdiction does not imply a limitation of the scope of the applicable law. Comparatively, other scholars appear to link jurisdiction and applicable law by referring to applicable law as part of the jurisdictional authority of the international tribunal to determine the dispute. While such distinction might seem to be merely an academic debate, the distinction between jurisdiction and applicable law is significant to determining the precise scope of the jurisdiction and applicable law to decide questions under other branches of public international law. For the WTO and investor-state arbitrations, the distinction is particularly meaningful given the substantial opportunity for overlap between trade, investment and other branches of public international law. If we take the approach of linking jurisdiction and applicable law suggested by some scholars, this results in a narrow view of the scope of international economic law to consider any other branches of public international law. On the other hand, the “crucial distinction” view arguably enables other branches of public international law to be applied as part of the applicable law. Overall, the tribunals’ application of the distinction will have implications for the interpretation of the outer limits of States’ consent to the dispute settlement system. This paper attempts to analyse relevant literature and case law to determine a coherent definition of, and distinction between, jurisdiction and applicable law in international economic law. Developing a clearer picture of the distinction between these two concepts should help us to come to a greater understanding of the intersection between international economic law and other branches of public international law.