Challenges to treaty awards on jurisdiction in the national courts: what is the appropriate standard of review?
10 November 2016
What standard of review is appropriate when a court is seised with a challenge to an award on jurisdiction? Should the answer be any different when the court is addressing an investment treaty award rather than a commercial award? This blog post addresses two recent decisions by the courts in Singapore and Switzerland, which have brought these questions to the fore.
In considering whether or not a tribunal has correctly determined the scope of its jurisdiction, different national courts adopt different standards of review. Some courts will consider the arbitrators’ jurisdiction de novo, even allowing the admission of new evidence. Other courts, however, will pay the arbitrators’ decision a substantial degree of deference. The difference in approaches is exemplified by two recent cases before the Singaporean and Swiss courts respectively, both of which concerned challenges to awards on jurisdiction rendered by tribunals in investment treaty cases. This post summarises the courts’ reasoning and analyses which standard of review is to be preferred, particularly in the investment treaty context.