Treaty vs. Contract Claims: The Art of the Choice

The panel will address the coexistence of contract and treaty claims in investment arbitration. It will examine how a single dispute may simultaneously give rise to contractual claims under commercial arbitration and to allegations of breaches of treaty standards of protection under international investment law.

It will then address when one should consider activating one way over the other, the benefits and possibilities of each forum, and if it is possible and convenient, the likelihood of activating both. In this line, the panel will consider the main legal implications arising from that overlap, including the risk of duplication of claims, the interaction between the State’s contractual and international obligations, and concerns relating to forum shopping and inconsistent outcomes. Against that background, the panel will offer a critical reflection on the limits and challenges that these parallel claims pose and understanding when it can be beneficial and legitimate to activate both forums and when not. Our panelists will provide a very practical understanding of these matters using their own experience to reflect upon which ways to take and when.