Abstrakt

I. Introduction  The issue of conflicting jurisdictions in investment arbitrations has different dimensions1. This paper focuses only on conflict between treaty-based tribunals and domestic courts/tribunals due to umbrella clauses and generic language of dispute settlement clauses (DSC) in connection with exclusive forum selection clauses (FSC) in investment contracts.   This problem remains unresolved in investment law. Because the latter has hybrid foundations2, administration of justice should be properly exercised by international and national adjudicative bodies as an effect of their cooperation. At the end of the day one needs to ensure that principles: ne bis in idem and pacta sunt servanda, will be observed and there will be no risk of parallel proceedings.II. Preliminary Presumptions  Conflict of jurisdictions is connected with controversial issues about which many authors have spilt so much ink. It is impossible to address them even briefly. In order to deal with the subject of this paper following presumptions have to be made:1) contract and treaty causes of action are separate3; „pure” contractual claims and treaty „claims fundamentally based on a contract” may arise from the same set of facts and overlap4;272) the distinction between acta iure imperii and gestionis to differentiate between contract and treaty claims5 is redundant; 3) generic DSC encompasses „pure” contractual claims6; possible limitations7 depend on a particular treaty;4) generic FSC encompasses treaty claims based fundamentally on contract;5) umbrella clauses8 neither elevate contractual claims to treaty claims nor change the applicable law9. They allow treaty-based tribunals to hear contractual claims. Breach of an umbrella clause in itself is a breach of an international obligation and constitutes a separate treaty claim10.III. Conflicting Jurisdictions1. FSC v. Arbitration agreement without privity (AAwP)(i) Legal nature of FSC and AAwP  Jurisdictional conflicts are due to the conflict between FSC and AAwP. The former (similar to an arbitration agreement in commercial arbitration) is a contract governed by domestic law. The legal character of AAwP is more complicated. It is a unilateral offer made by a host state in an investment treaty11 (governed by international law) and accepted by an investor. AAwP is treated as an arbitration agreement in writing for the purposes of enforcement12;...