Precedent in International Investment Law: the argumentative value of previous arbitration decisions

Abstract

The article studies the constant use of previous awards in investment arbitration, where parties and arbitral tribunals frequently resort to prior arbitration decisions to justify and argue their own decisions. In this sense, previous arbitration decisions have been used to give shape to abstract norms such as the Fair and Equitable Treatment standard. In this regard, it can be affrmed that the reference of arbitral tribunals to previous cases is not only referential, but also forms part of the construction of obligations that are required of the states. This article studies different explanations that both the doctrine and the arbitral tribunals themselves have developed to conceptualize the use of prior arbitration decisions in international investment law. Additionally, it is argued about the need to conceive of these previous decisions as an expression of the exercise of public authority by investment arbitration.

Keywords

• Legitimacy; Arbitral Precedent; International Investment Law; Public Authority