Originally from American Review of International Arbitration - ARIA

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International lawyers blanch at the notion that different areas of their
discipline might come into conflict. But it does happen. When the United
Nations Security Council imposed sanctions upon a list of suspected terrorist
organizations, the European Court of Justice refused to give effect to those
sanctions on the ground that the affected individuals had no due process.1 And
when Austrian authorities refused to let lorry drivers protest on a main road
used by international transport companies because it restricted the free
movement of goods, a conflict arose between European human rights law and
European Union law.2
In domestic legal orders, problems of this kind are resolved in two ways.
First, a legal hierarchy may exist that resolves conflicts. For example, the U.S.
Constitution overrides inconsistent U.S. federal laws, which in turn override
inconsistent state laws, which override inconsistent municipal statutes. Second,
the development and interaction of different areas of law in a domestic legal
system can ultimately be resolved by one single high court, typically an appellate,
constitutional, or supreme court. However, neither of these avenues is available
for reconciling different areas of international law. International law is the
product of treaties – contracts between States – and there will inevitably never be
consensus on which treaty is supreme. For instance, a non-EU member State that
signs a treaty with an EU member State will likely not be sympathetic to the
assertion that EU law should trump its treaty rights. Likewise, because each treaty
creates its own dispute resolution mechanism (if any), international courts and
tribunals may adopt a stance of defensive isolationism, applying the international
law they were created to adjudicate at the expense of some other branch of
international law which, they may determine, is none of their concern.
Investment treaty tribunals occupy just such an uncertain space. While they
are established to apply international investment law, we must be ready for the
prospect of obligations under investment treaties coming into conflict with other