Two Moralities of Consistency

Abstract

A core tenet of the claim that international investment law promotes the rule of law is that it enhances legal certainty for foreign investors. The idea is that investment treaties function as credible commitments, which lessen the risk of arbitrary, discriminatory, or unfair State action, and enhance the predictability of the legal framework applicable to foreign investment. However, it turns out that the investment treaty regime itself suffers from systemic inconsistency – as interpreted across hundreds of published arbitral awards. The question is whether this regime thus recreates the same rule of law problems it purports to solve. While the extent of inconsistency in ISDS is glaring, this Chapter argues against analyzing the uncomfortable relationship between investment treaties and legal certainty in zero-sum terms. Consistency is one rule of law value among many, (such as fidelity, flexibility, and responsiveness). It is one which cannot be secured absolutely and should not be pursued at all costs. Drawing on the work of Lon Fuller, this Chapter seeks to distinguish between tolerable consistency deficiencies in investment treaty arbitration, and more structural inconsistencies that are inimical to the rule of law. I identify particular rule of law failures of the latter sort in the wide ranging arbitral inconsistency in the interpretation and application of key secondary rules governing applicable law, norm conflict, attribution, and interpretation.