Investment contracts are of seminal importance in today’s
economy and the case-law developed by investment treaty tribunals is
increasingly called to find a solution to contentious issues. By reason of the
way investment contracts, most remarkably concession contracts, are concluded,
there is a particular legal notion that more and more often raises fundamental
questions that touch upon state responsibility, attribution of conduct, consent
to arbitration and competent fora, i.e. privity of contract. After an initial introduction to
the topic, this contribution will particularly focus on the consequences the
application of the doctrine bears in international investment arbitration where
forum selection clauses are included in local contracts with the investor. This
can in fact open the door to different scenarios, either broadening or reducing
the scope of jurisdiction of international arbitral tribunals depending on the
latter’s interpretation. Indeed, the undefined nature of the matter is material
nowadays in discussions regarding this fundamental means of dispute resolution,
that, despite the criticism it receives, remains an invaluable instrument to
efficiently solve disputes and ultimately uphold the rule of law.