The Murky Waters of Jurisdiction and Applicable Law in International Economic Law

PluriCourts Lunch Seminar with Nicola Strain.

Abstract

In international legal disputes, there is limited discussion of jurisdiction, leading to an inadequate understanding of the precise boundaries of an international court or tribunal’s jurisdiction and the meaning of the term ‘jurisdiction’. As the limits of the term ‘jurisdiction’ is relatively unclear, the line between ‘jurisdiction’ and ‘applicable law’ is necessarily blurred. 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 WTO dispute settlement 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 ‘crucial distinction’ view, this arguably enables other branches of public international law to be applied as part of the applicable law. On the other hand, if we link jurisdiction and applicable law, as suggested by some scholars, this results in a narrow view of the scope of international trade and investment law to consider any other branches of public international 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 develop a clearer picture of the distinction between these two concepts to help us to come to a greater understanding of the intersection between international trade and investment law and other branches of public international law.

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PluriCourt Seminars are a forum for pluridisciplinary discussion of core issues relating to international courts and tribunals. PluriCourts scholars or invited speakers present new and ongoing research or comment on current questions. The seminars are open to everyone.

Tags: Trade, Investment
Published Feb. 7, 2019 8:32 AM - Last modified May 16, 2019 12:52 PM