Supervisión y Control v Costa Rica: Developing the Pantechniki v Albania

Abstract

This Note analyses the Award of 18 January 2017 in Supervisión y Control v Costa Rica. The Award is the second award hitherto made by an investor-state tribunal that directly affirms the approach pioneered in Pantechniki v Albania used to determine whether a 'fork in the road' provision in an bilateral investment treaty has been activated- A s to bar a claim brought in litigation before a respondent State's courts from being arbitrated. Being so, the Award differs from the majority of other arbitral decisions applying the 'triple identity' test instead. We analyse what the Award has added to the existing jurisprudence on 'fork in the road' provisions, and the debate surrounding which test is to be preferred. We also discuss the extent to which the Award successfully resolves the problems associated with the 'same fundamental basis' test applied in Pantechniki, such as its potential vagueness, and the absence of a complete conceptual explanation as to why the reasoning in Woodruff might apply to 'fork in the road' provisions. Ultimately, we argue that the Award involves an insightful attempt at clarifying and developing the Pantechniki test, which could herald a new approach to be adopted by investor-state tribunals interpreting similar provisions.