Originally From World Arbitration and Mediation Review (WAMR)

I. INTRODUCTION

In a given investment dispute, it is not impossible to imagine that two or more investment treaties will be applicable and will concurrently provide for recourse to international arbitration. In addition, a host of other instruments may also be in force and pave the way for an international investment claim, such as national investment laws and investment contracts, which may well exist in parallel to investment treaties. When, however, the only available source of a claim are investment treaties, a reference to the concurrent application of two or more such treaties is most likely to be understood as a reference to two or more investment treaties between different contracting states. In practice, the discontent with this concurrent or parallel application of investment treaties is exemplified by the CME and Lauder cases.1 This article deals with another parallelism or “parallelity” of international investment law, namely that of investment treaties between the same contracting states. While this can more amply be evidenced in the context of current international lawmaking,2 the relevant analysis will center on the Energy Charter Treaty (ECT) and the bilateral investment treaties (BITs) entered into between its contracting parties.