The Costs of Consistency: Precedent in Investment Treaty Arbitration

Columbia Journal of Transnational Law, Vol. 51, p. 418, 2013

Marquette Law School Legal Studies Paper No. 12-26

62 Pages Posted: 20 Sep 2012 Last revised: 18 Mar 2013

Irene M. Ten Cate

Jenner & Block LLP

Date Written: September 19, 2012

Abstract

This Article challenges the emerging consensus that arbitrators who adjudicate investor-state disputes should strive for greater consistency. It submits that consistent adjudication can only be realized by sacrificing accuracy, sincerity and transparency. For many national and supranational legal systems, this is a price worth paying to promote goals like equality, certainty, predictability and perceived legitimacy of dispute resolution. The case for privileging these goals, however, loses much of its force in the context of investment treaty arbitration. Substantive investment law, currently consisting of approximately three thousand instruments, is fragmented and dynamic. And due to its ad hoc character, arbitration is flawed as a vehicle for harmonizing law. For these reasons, arbitrators in investor-state arbitrations should resist any norm of precedent in the sense of deference to earlier awards. At the same time, arbitrators ought to be mindful that their awards contribute to the development of substantive law in an area of great public importance. The Article concludes that the key lessons from precedent lie in its forward-looking aspects, namely the decision-making and reason-giving responsibilities that flow from the notion that decisions will have effects beyond resolution of the immediate dispute.

Keywords: Investment Treaty Arbitration, Investment Law, International Arbitration, Precedent, Judging

Suggested Citation

Ten Cate, Irene M., The Costs of Consistency: Precedent in Investment Treaty Arbitration (September 19, 2012). Columbia Journal of Transnational Law, Vol. 51, p. 418, 2013; Marquette Law School Legal Studies Paper No. 12-26. Available at SSRN: https://ssrn.com/abstract=2149245

Irene M. Ten Cate (Contact Author)

Jenner & Block LLP ( email )

919 Third Avenue
New York, NY 10022
United States

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