International Litigation and Arbitration
Though the jurisdiction of US courts is broad enough to give many foreign plaintiffs the ability to file suit here, the doctrine of forum non conveniens (FNC) enables a court to dismiss a case because another forum—typically the plaintiff’s home forum—would be more convenient for it. FNC dismissal is warranted only if the alternative forum is adequate, available, and more convenient for the case. Often, the alternative forum’s availability is a nonissue. However, many Latin American countries subscribe to a system of preemptive jurisdiction, which extinguishes their courts’ jurisdiction once a case is filed elsewhere. This system would seem to block the use of FNC by making the alternative forum unavailable, but U.S. courts have not treated this issue consistently. Some courts have reached divergent results using the same evidence, and some have avoided the inquiry altogether by making dismissals conditional. This Note analyzes and explains courts’ inconsistent treatment of Latin American rules of preemptive jurisdiction by illustrating certain subtle but crucial doctrinal missteps. The Note argues that FNC doctrine requires courts to analyze a foreign forum’s availability from that forum’s perspective while also paying heed to the movant’s burden of persuasion. Yet this doctrinally honest approach could preclude courts from using FNC to mediate between important policy concerns, as is usually possible. This Note identifies these competing concerns and proposes a possible solution.
This Note critiques the current structure and practice of the ICSID annulment mechanism by shifting away from the traditional focus on the ICSID arbitration system as a dispute settlement body and instead analyzing the annulment mechanism’s role in a progressively “judicializing” investor-state arbitration system. Recent developments in ICSID arbitration indicate that, over time, ICSID arbitral tribunals have undergone “judicialization”—that is, they have acquired domestic court–like characteristics enabling them to impact state and individual behavior prospectively, rather than merely to resolve the specific dispute at bar. These developments raise the question of whether the current annulment mechanism, which provides for cancellation of tribunal awards on a strictly limited set of grounds, is capable of accommodating this shift. Although the drafters of the ICSID Convention did not intend to allow an annulment committee, convened after the tribunal’s issuance of an award, to review the substantive merits of that tribunal’s award, annulment committees have previously based their decisions on more expansive substantive review than that permitted under the Convention. This Note argues that in a recent series of decisions, annulment committees appear to be engaging in greater substantive review of tribunals’ awards once again, a fact that triggers a renewed sense that annulment committees are still confused over the proper role of annulment in the ICSID arbitration system. Such confusion has serious implications in that it leads to the production of inconsistent decisions at the annulment level of the ICSID arbitration system, thus adding to the layer of inconsistent decisions produced at the tribunal level. These incoherent decisions may ultimately imperil the legitimacy of the ICSID arbitration system as a judicialized body for shaping prospective state and individual behavior. To strengthen the legitimacy of ICSID arbitral decisions and promote further development of coherent international investment law, I argue that it is critical for ICSID to establish a mechanism with official powers of substantive review.