Precedent and Control in Investment Treaty Arbitration

25 Pages Posted: 26 Jan 2007 Last revised: 13 Jun 2011

Date Written: 2007

Abstract

The proliferation of publicly-available investment treaty arbitrations has drawn attention to apparent inconsistencies among awards and raised questions about whether there is a system of precedent in investment treaty arbitration. This article argues that although there is no formal system of precedent, arbitrators generally share common norms about how to account for prior decisions and awards. These norms have operated even in contentious areas of international investment law, such as the fair and equitable treatment standard and the effect of umbrella clauses. However, in order for these norms to be solidified and for investment treaty arbitration to inspire confidence in investors and host states, there is an urgent need to further clarify and publicize these norms.

Keywords: investments, arbitration, bilateral investment treaty, arbitrators, international law, norms, precedent

Suggested Citation

Cheng, Tai-Heng, Precedent and Control in Investment Treaty Arbitration (2007). Fordham International Law Journal, Vol. 30, 2007, Available at SSRN: https://ssrn.com/abstract=959382

Tai-Heng Cheng (Contact Author)

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States

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