Luke Nottage
Published: 2023
Total Pages: 0
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When a host state discriminates or otherwise treats a foreign investor illegally, under substantive commitments made (usually nowadays under an investment treaty concluded with the investor's home state), the investor not infrequently brings an investor-state dispute settlement (ISDS) arbitration claim against the host state. What does or should happen when the foreign investor also brings a concurrent claim before the domestic courts of the host state? Our analysis shows that a surprising proportion of investment treaties allow this possibility, without taking precautions to coordinate them. Such concurrent claims might incentivize domestic courts to speed up procedures, improve local law in light of international standards, or enable a fruitful dialogue among adjudicators. Yet they also raise concerns related to inefficiencies, potentially conflicting outcomes, and the rule of law more generally. Our article shows how and why some high-profile concurrent claims have emerged against Australia (by Philip Morris, challenging its tobacco plain packaging laws) and Germany (by Vattenfall, challenging the phaseout of nuclear power plants), and can arise in other contexts due for example to the greater protections provided to investors under international compared to domestic public law. Both cases contributed to a wider backlash against ISDS arbitration, leading to various new initiatives and ongoing policy debates in various fora. Accordingly, our article also considers what could be done to manage more effectively this issue of concurrent proceedings.