WHEN INTERNATIONAL COMMERCIAL ARBITRATION AND INVESTMENT TREATY ARBITRATION COLLIDE: A STUDY OF CURIAL SUPERVISION AND SUBORDINATION

Abstract

This dissertation centres around the interactions between the three regimes – commercial arbitration, national courts, and investment treaty arbitration – that form the building blocks of the architecture of modern international arbitration. Drawing the inferences from a series of investment treaty claims that implicate national courts for their unwarranted controlling of international commercial arbitration, the thesis examines the causes and effects of the arbitral review of judicial acts. Against this backdrop, it argues that a review of national courts by treaty-based arbitral tribunals, employing the norms of international investment law results in a destabilisation of the legal architecture of international commercial arbitration. While it is not new for international tribunals to review the decisions of national courts, this pattern demonstrates the creation of supremacy over the national court like that of a supra-national adjudicatory regime.