The article by Professor's Bjorklund article underlines the complexity encountered by parties with respect to international investment litigation. The factors pertaining to this complexity are multiple and exist at virtually every stage in an investment operation. Among these factors of complexity, one can cite two important aspects:
? The bodies of law and norms that are interlinked are manifold
? The potentially applicable concepts are myriads and possess a hybrid nature in terms of investment law. This helps the concepts locate its corresponding principles both in private international law and public international law.
This philosophy of diversification of concepts and the mixture of logic, leads to a system that might declare a philosophy as one with lacking coherence, efficiency and thus uncertainty for the parties. To some extent, one might believe that this system will produce unfair results and will indirectly or directly abuse the process. Indeed, as the author demonstrates, adjudicatory competition among international tribunals is not advantageous for the parties that appear before them. There are two main reasons that make the international tribunal incapable of dealing with competition. These reasons are elucidated as under:
a. The available remedies and jurisdictional authority is very often fragmented among tribunals. This compels the parties to seek relief in multiple forays.
b. With respect to overlapping issues in tribunal jurisdiction and duplication in proceedings, the tools made available to the tribunals are very less. This leaves the tribunal in a very difficult situation of coping with adjudicatory competition.
[...] This compels the parties to seek relief in multiple fora. Secondly, the tribunals have little tools to deal with overlap issues in tribunal jurisdiction and duplication in proceedings. In this context, establishing a world commercial court that could hear all kinds of investment and trade related issues at once could be beneficial (of course, given the complexity of the different issues, such a court would have to be organized by specialities such as WTO law, investment law . Indeed, as it is underlined in Prof.'s Bjorklund article, the spheres of investment and trade are closely linked and any hermetic barriers between them are both artificial and counterproductive. [...]
[...] Forum-shopping and Amicus Would it be beneficial or desirable to establish a world commercial court that could hear all kinds of investment and trade related issues at once? Professor's Bjorklund article underlines the complexity that parties to international investment litigation have to face. The factors of this complexity are multiple and exist at virtually every stage of an investment operation. Among these factors we can cite: the multiplicity of bodies of law and norms involved, the myriad of potentially applicable concepts and the hybrid nature of investment law that founds its principles both in private international law and public international law. [...]
[...] However, the establishment of a world commercial court can not be perceived as a panacea. Indeed, such a creation would immediately generate new problems, such as the coordination of the jurisdiction of this court with the possibility for the parties to introduce claims in municipal courts or to resort to arbitration. Bibliography A.K. Bjorklund, Adjudicatory Competition in International Economic Law Methanex v. United States, UNCITRAL Letter to James Wolfensohn in Aguas del Tunari v. Bolivia Aguas del Tunari, S.A, v. [...]
[...] Given the political, economic and commercial considerations involved, establishing a unique body that would have jurisdiction to resolve commercial and investment disputes seems almost impossible. It appears that the establishment of such an institution could only be done progressively and would be subordinated to the evolution of many fundamental and deeply rooted concepts of international law. As it was underlined by the author such a perspective requires moving beyond the historic division between states and individuals in international law. The fundamental change would be that individuals would be regarded as having acquired rights and not as merely having derivative rights. [...]
[...] This would not only represent monetary savings for the involved parties but also valuable time efficiency. In short, it would lessen the duplication of effort required by claimants faced with fragmented systems for dispute settlements and would erase the possibility of claimant's duplicative recovery. Last but not least, the establishment of a world commercial court might represent a great step towards an adequate level of legal certainty. It goes without saying that investors eagerly look for legal certainty while they consider their potential investments. [...]
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