Friday, December 26, 2008

Bjorklund: Investment Treaty Arbitral Decisions as Jurisprudence Constante

Andrea K. Bjorklund (Univ. of California, Davis - Law) has posted Investment Treaty Arbitral Decisions as Jurisprudence Constante. Here's the abstract:
Decisions by arbitral tribunals in investment treaty cases do not have formal precedential status. Yet certain issues recur, and prior decisions at the least provide guidance to later tribunals. The content of the most frequently invoked substantive treaty provisions - the obligations to accord national treatment and fair and equitable treatment to foreign investors, and to expropriate the property of foreign investors only in accordance with international law and on payment of due compensation - is far from clear. Furthermore, procedural matters, such as decisions regarding the place of arbitration or the allocation of costs, play an increasingly important role in investment arbitrations but are also not addressed thoroughly in the treaties themselves. Given those limitations, it seems inevitable that arbitral decisions, as they accumulate, will help to flesh out the extent of state parties' obligations and investors' legitimate expectations when their relationship is governed by an investment treaty. Thus, the decisions of investment treaty arbitral tribunals are proving to be essential in establishing the modern international law of investment. The actual compilation of a generally accepted set of standards will be an accretive process developed little by little as tribunals make decisions in individual cases, and as those decisions are tested by other tribunals, by publicists and international organizations, and by the states themselves. Gradually one may expect the institution of a jurisprudence constante, and the emergence of key decisions that are judged to be the influential starting points from which further analysis should flow.