Financial Disputes in Arbitration: Dynamic Jurisdiction at the Intersection of Private and Public Law

Abstract

This article explores jurisdictional challenges in resolving financial disputes within international commercial arbitration, focusing on mass claims by investors against states. It examines the landmark case Abaclat v. Argentina, where 60,000 bondholders challenged Argentina’s default, highlighting flaws in traditional jurisdictional approaches. The author proposes «dynamic jurisdiction» — an original, adaptive framework that allows tribunals to adjust their competence incrementally based on the number of claimants, evolving facts, and states’ public law interests. This approach departs from rigid current practices, aiming to balance investor rights with state sovereignty. The study draws on the 1965 Washington Convention, bilateral investment treaties, ICSID case law, and theoretical scholarship, underscoring its relevance amid financial market globalization. The concept’s viability is tested through a hypothetical scenario and extends to emerging disputes over digital assets. This novel framework offers a flexible solution to enhance arbitration’s legitimacy and predictability in complex financial contexts.