Precedent in Investment Treaty Arbitration—A Citation Analysis of a Developing Jurisprudence

Abstract

While there is no doctrine of stare decisis or binding precedents in international law, the development of an investment treaty case law or jurisprudence is unmistakable, and has not gone unnoticed in recent times, by treaty tribunals, and by those appearing before them. As such, international investment law now effectively develops through this mounting case-law, rendering the precedential value of each decision, award and order, rightly or wrongly, tremendously significant. A review of the decisions, awards and orders rendered by these tribunals, with a view to examine the sources of law cited in their decisions, is now both appropriate and warranted. This article presents a quantitative and qualitative citation analysis of this case law, surveying and reviewing the role that precedent has played in the 207 publicly available decisions, awards, and orders rendered since 1972, including decisions rendered by early ICSID tribunals (where jurisdiction was not predicated on consent in an investment treaty), and ICSID, ICSID (AF), and certain non-ICSID investment treaty tribunals.