Reasoning with Previous Awards in International Investment Arbitration

Abstract

The non-existence of the stare decisis doctrine in international investment law creates a potential for development of contrasting awards articulating opposing results for fundamentally same issues. Despite the non-existence of the stare decisis doctrine, tribunals do frequently rely on previous awards in order to maintain predictability of the international investment law. Arbitrators in international disputes, however, come from different legal cultures. This cultural background possibly influences how they approach previously rendered awards and how they reason with them. In 2013, Professor Jan Komarek published a study where he distinguished two types of reasoning with previous decisions: case-bound technique and legislative technique. Professor Komarek linked the two techniques to common law and civil law culture respectively. This article applies those two general techniques to several international investment awards. By doing so, the article demonstrates that arbitrators in international treaty arbitration use both techniques when reasoning with the same awards and reaching decisions on similar matters. The article then considers whether one of the techniques is better suited than the other in leading towards a consistent case law in the environment of investment treaty arbitration.