The Case Law of the ICJ in Investment Arbitration

Abstract

The topic of this Lalive Lecture is austere. But it has the merit of opening wider perspectives than it seems at first glance. Through the prism that I have chosen, we can, I think, address interesting doctrinal issues which are not devoid of practical consequences: what is the nature of the ‘ICSID system’? A legal order? A ‘sub-system’ of general international law? A ‘sui generis’ Unidentified Juridical Object (UJO)—the refuge of doctrinal non possumus . . . ? And how, and to what extent, in this ‘system’ (a word to which I do not give any precise theoretical sense yet), does one use tools of general international law? Should we think in terms of relations between legal orders or legal systems? Or in terms of normative interactions? Although I do not pretend to give definitive answers to these broad questions, I will keep them in mind when trying to describe the areas in which ICSID tribunals resort to the jurisprudence of the World Court—a term which I take to include the International Court of Justice (ICJ) and its predecessor, the Permanent Court—and the way they do it. First, a preliminary question: why not ‘the ICSID jurisprudence in the decisions of the International Court of Justice’? The answer could simply be that it is not the topic of tonight’s conference. But there are also good reasons. First, there may be some doubt about the existence of ‘ICSID jurisprudence’; I do not get into the discussion of this vast issue, about which much has already been written. Let’s just say that I think