Jurisdictional overlap between domestic courts and investment arbitration: an occasion for judicial dialogue.

The article examines the jurisdictional overlap between domestic courts and investment treaty tribunals in adjudicating investment disputes, focusing on the distinction between treaty and contract claims. It highlights how investment tribunals often uphold their jurisdiction over treaty claims despite conflicting contractual forum-selection clauses, relying on a formalistic separation that limits judicial dialogue with domestic courts. The article argues that this conceptual position is artificial and formalistic, overlooking substantive overlaps and enabling parallel proceedings that may undermine the legitimacy of the system. It proposes that domestic courts should engage more actively in reviewing arbitral jurisdiction, particularly by assessing investors' intentions to waive arbitration rights and by invoking doctrines such as abuse of process to regulate jurisdictional conflicts. Such increased judicial dialogue could incentivize tribunals to adopt a more coherent and flexible approach to jurisdictional overlap without fundamentally altering the investment arbitration framework.