Precedent and Control in Investment Treaty Arbitration
25 Pages Posted: 26 Jan 2007 Last revised: 13 Jun 2011
Date Written: 2007
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
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