Ten Cate: The Costs of Consistency: Precedent in Investment Treaty Arbitration

Irene M. Ten Cate (Marquette Univ. - Law) has posted The Costs of Consistency: Precedent in Investment Treaty Arbitration (Columbia Journal of Transnational Law, forthcoming). Here's the abstract:

This article challenges the emerging consensus that arbitrators in investor-state arbitrations should strive for consistency. Greater con-sistency can only be realized by sacrificing accuracy, sincerity, and transparency. For many national and supranational legal systems, this is a price worth paying to achieve other goals, including equality, certainty, predictability, and a perception of legitimacy. The case for privileging the goals served by consistency, however, loses much of its force in the context of investment arbitration. Substantive investment law, currently consisting of approximately three thousand instruments, is fragmented and dynamic. And due to its ad hoc character, arbitration is flawed as a vehicle for harmonization of law.

For these reasons, I argue that investment arbitrators should resist the introduction of precedent in the sense of according deference to earlier awards. Yet arbitrators ought to be mindful that their awards contribute to the development of substantive law in an area of great public importance. I argue, therefore, that the key lessons from precedent lie in its forward-looking aspects, namely the decisionmaking and reason-giving responsibilities that flow from the notion that decisions will have effects beyond the disputes they settle.