Monday, September 9, 2013

Schultz: Against Consistency in Investment Arbitration

Thomas Schultz (King's College London - Law) has posted Against Consistency in Investment Arbitration (in The Foundations of International Investment Law: Bringing Theory into Practice, Z. Douglas, J. Pauwelyn, & J.E. Viñuales eds., forthcoming). Here's the abstract:
In this paper, the author argues that investment arbitrators should not see themselves as law-makers, an attitude that otherwise manifests itself in attempts to advance the rule of law, which in turn may take the form of following prior decisions in order to consolidate rules. There is a high risk that as law-makers they do more harm than good, given that creating law, filing gaps, furthering the rule of law, pursuing predictability is not necessarily a good thing to do, a moral positive. Precise, consistent rules, forming a regime that meets the requirements of the rule of law, are not inherently preferable to vague, inconsistent rules forming a regime that does not meet the standards of regulative quality which partake of the rule of law. There is nothing inherently good in furthering the rule of law. A bad rule applied consistently, in a predictable way, in highly regularized patterns, may do more harm than the same rule applied inconsistently, occasionally, in an unpredictable way.