JURISDICTIONAL CLAUSES IN BITS: A COMPARATIVE STUDY OF GERMAN AND UZBEK APPROACHES TO CONSENT IN INVESTMENT ARBITRATION

Аннотация

This article examines the role of jurisdictional clauses in bilateral investment treaties (BITs), focusing on the legal concept of consent to arbitration in German and Uzbek practice. It explores how each country formulates, interprets, and enforces such clauses, and evaluates the impact of domestic law and international obligations on their effectiveness. By analyzing treaty language, national court decisions, and investment arbitration practice, the study reveals divergent trends: Germany’s increasingly constrained consent framework under EU law and Uzbekistan’s liberal, investor-friendly stance. The article concludes with recommendations on preserving legal predictability and investor confidence in light of evolving jurisdictional doctrines. Keywords: jurisdictional clauses, investment arbitration, consent to arbitration, BITs, Germany, Uzbekistan,party autonomy, international investment law, forum selection, EUlaw Jurisdictional clauses are the cornerstone of investment arbitration. Their precise wording and legal interpretation define the scope of arbitral jurisdiction and the legitimacy of investor-State dispute settlement (ISDS). Under international law, consent to arbitration must be clear, unequivocal, and mutually recognized. In bilateral investment treaties (BITs), this consent is often unilaterally offered by the host State and perfected by the investor through initiation of arbitration proceedings. This article undertakes a comparative analysis of how Germany and Uzbekistan articulate and operationalize jurisdictional clauses in their BITs. Germany, as an EU Member State, is subject to constraints imposed by the Court of Justice of the European Union (CJEU), particularly following Achmea and Komstroy. Uzbekistan, by contrast, retains a flexible and autonomous approach to dispute settlement, driven by national development goals and a need to attract foreign direct investment (FDI). The analysis is grounded in doctrinal methodology, supported by treaty texts, arbitral jurisprudence, and national court rulings. It contributes to private international law (PIL) by clarifying how jurisdictional clauses function in practice and howtheir effectiveness is shaped by intersecting legal orders. In BITs, jurisdictional clauses serve to define the scope of disputes that may be referred to arbitration. Typically, they include:  Thetypes ofdisputes (legal vs.factual);  Thearbitration forum (ICSID, UNCITRAL, ad hoc);  Applicableprocedural and substantivelaw;  Conditionsprecedent (negotiation, cooling-off period). https://ijmri.de/index.php/jmsi volume 4,issue5,2025 784 From a PIL standpoint, such clauses are an expression of party autonomy and serve as instruments of forum selection. Their binding force derives from the law of treaties (e.g., Vienna Convention on the Law of Treaties, Article 26), and their recognition is reinforced by enforcement regimes suchas the NewYork Convention. Germany has historically supported investor-State arbitration through its extensive BIT network. Its treaties often included “open offer” clauses, granting foreign investors access to ICSID or UNCITRAL arbitration without needing separate consent instruments. However, thelegal landscape has shifted significantly following theCJEU’sdecisions:  Achmea (C-284/16) invalidated intra-EU BIT arbitration;  Komstroy (C-741/19) extended similar reasoning to the Energy Charter Treaty (ECT) withintheEU context. Post-Achmea, Germany terminated many of its intra-EU BITs and now relies on the EU legal framework to handle intra-Union investment disputes. For extra-EU treaties, Germany remains committed to ISDS, although treaty renegotiation often reflects new EU model BIT language, emphasizingtransparency and sustainabledevelopment. German courts, such as the Federal Court of Justice (BGH), tend to respect valid arbitration clauses unless directly conflicting with EU obligations. The Federal Constitutional Court (BVerfG) has not yet overruled CJEU jurisprudence but retains an active interest in protecting constitutional identity. Uzbekistan takes a markedly different path. As part of its economic reform agenda, the country has prioritized legal openness and investor security. The Law “On Investments and Investment Activity” (2019)provides astatutory guarantee ofaccess to international arbitration. Uzbekistan’sBITs generally:  Offer broad jurisdictionover “any disputeconcerning investments”;  Allowchoice between ICSID, UNCITRAL, orad hoctribunals;  Containfew jurisdictional limitationsor carve-outs. This liberal approach is reflected in arbitral practice, where Uzbekistan has appeared before ICSID and other tribunals without contesting jurisdiction based on consent issues. Moreover, domestic courts—though still evolving in sophistication—demonstrate growing acceptance of foreign arbitral awards, aligned withtheNew York Convention. This framework enhances predictability and reflects Uzbekistan’s strategy of aligning with international sta