This chapter investigates the relative importance investment tribunals accord to correctness and consistency considerations in arbitral decision-making by empirically investigating the similarity of treaties connected through precedent. My argument is that tribunals enjoy large discretion in their choice of precedent and use that discretion to further their legal policy preferences. Tribunals that take a system-oriented approach and understand their mandate as promoting the consistent and harmonious development of investment law will select precedent more liberally including cases rendered under highly dissimilar investment treaties. Conversely, tribunals that favor a dispute-centric approach and understand their mandate as ensuring the correct interpretation of the specific treaty will select precedent more cautiously focusing on cases rendered under the same or highly similar treaties, but excluding case law from dissimilar ones. Using a dataset of more than 4500 citations, I find that, apart from NAFTA and a few other exceptions, most tribunals cite precedent liberally rather than cautiously suggesting that tribunals prioritize consistency over correctness considerations. This conflicts with the preferences expressed by states in the UNCITRAL process that place correctness over consistency. Current investment law reform efforts are an opportunity to remedy this mismatch of policy preferences between states and tribunals.
Thursday, August 22, 2019
Alschner: Ensuring Correctness or Promoting Consistency? Tracking Policy Priorities in Investment Arbitration through Large-Scale Citation Analysis
Wolfgang Alschner (Univ. of Ottawa - Law) has posted Ensuring Correctness or Promoting Consistency? Tracking Policy Priorities in Investment Arbitration through Large-Scale Citation Analysis (in Empirical Perspectives on Investment Arbitration, Daniel Behn, Ole Kristian Fauchald & Malcolm Langford eds., forthcoming). Here's the abstract: