Thursday, January 26, 2012

Cole: Non-Binding Documents and Literature

Tony Cole (Brunel Univ. - Law) has posted Non-Binding Documents and Literature (in International Investment Law: Sources of Rights and Obligations, Tarcisio Gazzini & Eric De Brabandere eds., forthcoming). Here's the abstract:

The chapter examines the use by international investment arbitration tribunals of non-binding documents and literature. It argues that current practice does not adequately reflect the structural realities of international investment arbitration, and that tribunals must make fundamental changes in the approach they take to the citation of non-binding materials.

The chapter divides non-binding materials into those that can legitimately be used as authoritative guides to the content of international investment law and those that can legitimately be used only as persuasive sources of arguments. It argues that although tribunals currently cite to many non-binding writings as though they are authoritative, international investment law is still too substantively conflicted for any writing to be authoritative. As a result, non-binding writings can only be used as persuasive.

In addition, it argues that although international investment arbitration tribunals have sought to model their approach to citation on the opinions delivered by international courts such as the ICJ, this ignores the important distinctions between the two types of body. The ICJ is a norm-adopting body, capable of setting new legal norms through its decisions, while the decisions of international investment arbitration tribunals constitute merely an expression of the views of the authors. Consequently, international investment arbitration tribunals must use non-binding writings differently than do international courts.

The chapter concludes with a discussion of how non-binding materials should be used by international investment arbitration tribunals.