The Adequacy of Reasoning in the Arbitral Tribunal's Decision in Saluka Investments v. Czech Republic

Abstract

This paper was published in an edited volume which contained the first-ever systematic analysis of the emerging body of international investment arbitration jurisprudence with respect to the quality and adequacy of the reasoning provided by arbitration tribunals and their compliance with the little-understood reasons requirements embedded in each of the various investment arbitration legal frameworks. The paper presents a critical examination of the arbitral tribunal’s judgment in Saluka v. Czech Republic, a complex bilateral investment treaty case relating to a failed bank privatization transaction, which implicated a series of private and public international law claims, including claims for breaches of obligations relating to fair and equitable treatment, full security and protection, and non-impairment, as well as claims of unlawful expropriation. The paper contains an original analysis of the precise content of the reasons requirement under the UNCITRAL Arbitration Rules, which governed the arbitration, including as contrasted with the corresponding requirements under other international investment arbitration frameworks. In addition, the paper offers insights into the benefits of well-reasoned international investment arbitration judgments and synthesizes criteria that can be deployed to assess the quality of reasoning in such judgments.