THE INVESTMENT TREATY ARBITRATION REVIEW

I INTRODUCTION

On the face of it, the issue of precedent in investment treaty arbitration is straightforward enough, and also amenable to empirical examination. It is certain that there is no formal doctrine of precedent in the field of investment treaty arbitration.² Empirical research shows that arbitrators regularly refer to earlier cases at the same time.³ The high practical importance of arbitral decisions in the area of investment treaty arbitration is hence unquestionable, even though one can hardly speak of a binding precedent as understood under the common law doctrine of stare decisis.⁴ Yet, upon closer examination, the overall picture becomes more complex. The value of prior arbitral jurisprudence is often debatable. Because of the fragmentation of public international law, namely the existence of many differently worded international investment agreements (IIAs), earlier investment treaty decisions can be differentiated on legal grounds, and accordingly found unpersuasive unless referring to legal provisions of the same or largely similar IIAs. Investment treaty cases can also be differentiated on facts, seeing as their factual patterns, especially if referring to different state measures or to different jurisdictions, are rarely identical. Finally, on at least several occasions, it happened that arbitral tribunals blatantly ignored discussion of earlier decisions.

II OBSTACLES TO THE SYSTEM OF PRECEDENT

While investment treaty arbitration largely draws on commercial arbitration, and hence has a mixed status, it concerns international public law matters, including, first and foremost, treaty interpretation. The doctrine of precedent has never been formally adopted in the field of public international law (e.g., by the International Court of Justice or by other international law adjudicatory bodies).⁵Judicial decisions are not sources of international law but, properly speaking, merely help in interpretation of international law provisions contained in IIAs, or are relied upon as ‘evidence for existence of customary international law’.⁶ Thus, each arbitral or other adjudicatory decision is of assistance in extrapolating general principles of international law, albeit it does not create any stand-alone international law standard per se (awards are binding only upon the parties).⁷This important doctrinal obstacle on the road to development of the system of precedent is not the only one, however.

Even if one were willing to treat investment treaty arbitration and law as relatively distinct from classic fields of public international law, the lack of full transparency of investment treaty arbitration is another obstacle to development of the precedent system. The latter requires publicity of decisions.⁸ Not all arbitral awards are public, many are partially redacted before publication, and the United Nations Convention on Transparency in Treaty-based Investor–State Arbitration (the Mauritius Convention on Transparency) has, so far, been ratified only by three states.⁹ Moreover, even a wider adoption of the Mauritius Convention on Transparency and, accordingly, broader application of the UNCITRAL Rules on Transparency in Treaty-based Investor–State Arbitration will not, on its own, pave the way for the future development of a precedential system in investment treaty arbitration.

The major obstacle to the true development of a precedential system is posed in the fact that substantive investment law consists of 2,363 bilateral investment treaties (BITs) and 309 other treaties with investment protection provisions (there are 2,672 IIAs in force).¹⁰ In a word, the investment law framework is, by its very nature, fragmented.¹¹ As the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID) is never applied on its own, and does not contain any substantive standards of foreign investment protection, the aforementioned relates equally to investment arbitrations administered outside ICSID and to those within the ICSID system.¹² The great number of substantive instruments, which are often differently worded, makes it difficult to indiscriminately draw on earlier cases, especially if they referred to interpretation of a differently worded investment protection standard of some other IIA. On the other hand, of course, many IIAs, in particular if agreed by the same capital-exporting state in a similar time period, or if based on the same model BIT, are quite similarly worded. For instance, many UK and French BITs define ‘investment’ in a similar manner.¹³ This facilitates referencing some earlier decisions in later cases.

On top of this, however, multiple IIAs are on par with each other. In consequence, findings of various arbitral tribunals dealing with investment protection matters, deriving their jurisdiction from different IIAs, have equal status. Unlike in the common law systems that adopted the stare decisis principle, there is no hierarchy of arbitral awards.¹⁴ There is also no arbitral appellate body, and ICSID annulment committees have procedural autonomy.¹⁵This makes sorting out the relevance of arbitral decisions a discretionary task for counsel and arbitrators who can assign quite different values to them depending on a number of case-specific factors, including linguistic differences between the underlying instruments and fact-driven considerations. Indeed, arbitral tribunals can draw guidance from earlier cases, and usually do so if they concerned similar matters or were issued by respective arbitrators, but are not bound to strictly follow them.¹⁶ The persuasiveness of previous arbitral decisions is, in most cases, subject to debate between parties, that is to say, in the absence of formal guidelines in this respect, reasonable minds will often differ on the value of earlier awards.

III HIGH RELEVANCE OF PRIOR ARBITRAL DECISIONS

Notwithstanding the above, it has to be emphasised that prior arbitral decisions are nowadays regularly referenced, or even cited in extenso, by arbitral tribunals in their awards.¹⁷ It is fully true that ‘consideration of prior decisions allows tribunals to benefit from reasoning that has been developed in similar scenarios, possibly making their own more effective and efficient.’¹⁸ As one commentator put it:

[e]ven those arbitrators who denounce attempts to impose a system of precedent on investment treaty arbitration do not eschew relying on or citing to other decisions for support and do not shy away from explaining why a particular decision should not be followed. Where there are inconsistent decisions, these issues are debated in scholarly articles, at conferences, on blogs, and, of course, by the parties in any dispute. Over the course of time, tribunals come to distinguish, interpret narrowly, or simply disagree with the less persuasive decisions, until such decisions eventually represent the minority view.¹⁹

Some commentators argue that an ICSID award can be annulled if prior arbitral awards are not properly discussed by an arbitral tribunal.²⁰ Several commentators, who also happen to be notable arbitration practitioners, note a de facto system of precedent in the world of investment arbitration (as opposed to the de jure precedent system, which has not developed in investment treaty arbitration).²¹ One academic work notes ‘an informal, but powerful, system of precedent that constrains arbitrators to account for prior published awards and to stabilize international investment law’.²² A recent treatise on the matter of arbitral lawmaking adapts a similar tack, yet using different language. It argues that ‘the distinction between a de jure and de facto doctrine of precedent is artificial.’²³ Following this line of thinking, the doctrine of precedent does not require the doctrine of stare decisis and, accordingly, it can be submitted that not only common law jurisdictions, but also civil law jurisdictions, recognise precedents.

In other words, while the notion of precedent is ‘a common law term of art that is clearly distinguishable from civil law judicial lawmaking’, in civil law jurisdictions there stand concepts such as jurisprudence constante or ständige Rechtsprechung, which are quite similar, albeit they do not officially impose strict adherence to legal principles established in the previous decisions.²⁴Consequently, it can be argued that investment arbitration promotes a ‘hybrid’ approach to precedent as ‘[o]n the one hand, tribunals pay a higher deference to a civil law type of “jurisprudence constante”; on the other hand, lawyers and arbitrators and counsel readily engage in a common law style of reasoning’.²⁵ It is suggested that ‘[n]either the common law conception nor the civil law conception is capable of capturing the role of past arbitral decisions.’²⁶ This ‘hybrid’ understanding of precedent can be a challenge for both common law- and civil law-trained lawyers.

If one thing is sure, it is that it is impossible to successfully argue an investment case without giving account to arbitral jurisprudence. No matter how scholars and practitioners phrase their views on the issue of precedent, they recognise the importance of prior arbitral awards. Most of them, however, either directly or indirectly reject the common law understanding of precedent, which, upon certain systemic conditions, requires a court to abide decisions issued by courts above it, or appellate courts.²⁷ Whereas investment protection standards contained in IIAs are broadly drafted and require interpretation, making international investment law prima facie prone to the doctrine of precedent, it does not fall on fertile ground in the world of investment treaty arbitration. This is so for many doctrinal and structural reasons, most importantly because of the legal parity of different arbitral tribunals and their awards.

IV ARBITRAL DECISIONS ON THE ROLE OF PRECEDENT

There are many arbitral decisions declaring the lack of precedent in the area on international investment law but, concurrently, emphasising the relevance of prior awards. In one of the most notable cases regarding the role of precedent, namely in ADC v. Hungary, the arbitral tribunal stated that:

The Parties to the present case have . . . debated the relevance of international case law . . . . It is true that arbitral awards do not constitute binding precedent. It is also true that a number of cases are fact-driven and that the findings in those cases cannot be transposed in and of themselves to other cases. It is further true that a number of cases are based on treaties that differ from the present BIT in certain respects. However, cautious reliance on certain principles developed in a number of those cases, as persuasive authority, may advance the body of law, which in turn may serve predictability in the interest of both investors and host States.²⁸

A similar conclusion can be drawn, for example, from Jan de Nul v. Egypt.²⁹ The same reasoning was also applied in two earlier well-known ICSID awards that were issued in a series of cases brought against Argentina after it experienced the economic crisis in 2001–2002.

In Enron v. Argentina, the arbitral tribunal rightly stated that ‘. . . decisions of ICSID tribunals are not binding precedents and . . . every case must be examined in the light of its own circumstances’.³⁰ Having stated that, however, the Enron tribunal equally correctly decided to adhere to the earlier jurisdictional decisions from other cases. To be more precise, the arbitral tribunal decided that:

(t)he key issues raised by the parties in connection with jurisdiction in this case . . . are not really different from those raised in earlier cases. This being the case, the conclusions of the Tribunal follow the same line of reasoning, not because there might be a compulsory precedent but because the circumstances of the various cases are comparable, and in some respects identical.³¹

The role of precedent was also discussed in AES v. Argentina. In this case, the arbitral tribunal stated that ‘. . . each BIT has its own identity; its very terms should consequently be carefully analysed for determining the exact scope of consent expressed by its two Parties’ and hence ‘. . . the findings of law made by one ICSID tribunal in one case in consideration, among others, of the terms of a determined BIT, are not necessarily relevant for other ICSID tribunals.’³² After reaching this conclusion, the AES tribunal continued:

Under the benefit of the foregoing observations, the Tribunal would nevertheless reject the excessive assertion which would consist in pretending that, due to the specificity of each case and the identity of each decision on jurisdiction or award, absolutely no consideration might be given to other decisions on jurisdiction or awards delivered by other tribunals in similar cases.³³

Following this line of reasoning, in Bayindir v. Pakistan the arbitral tribunal adopted the position that previous decisions are not binding but that, absent compelling reasons to decide otherwise, legal solutions established in a series of consistent awards should be followed, although subject to the specifics of a given IAA and circumstances of the case.³⁴ The Bayindir tribunal explained that arbitrators have a ‘. . . duty to seek to contribute to the harmonious development of investment law and thereby to meet the legitimate expectations of the community of States and investors towards certainty of the rule of law’.³⁵ This position of the Bayindir tribunal was cited a year later in Fakes v. Turkey.³⁶ Also, in the 2012 award in Daimler v. Argentina, the arbitral tribunal acknowledged the principle of the rule of law that similar cases should be decided alike unless a strong reason exists to distinguish between them.³⁷ It further stated that much depends on three factors, namely on: (1) how similar the prior and new cases are; (2) the degree to which a clear jurisprudence emerged; and (3) the arbitral tribunal’s independent assessment of the persuasiveness of prior decisions.³⁸ A similar reasoning has been adopted by the arbitral tribunals in Austrian Airlines v. Slovak Republic, in Electrabel v. Hungary, and recently in Jürgen Wirtgen v. Czech Republic.³⁹ Thus, arbitral tribunals strive to maximise the consistency of investment treaty jurisprudence.

In any case, there exists the ‘general consensus’ among arbitral tribunals that the doctrine of stare decisis is not applicable.⁴⁰ Previous arbitral awards discussed by parties in their written submissions are generally taken into account by arbitrators who, in response to the parties’ submissions, address arbitral jurisprudence in virtually all awards. This tendency, however, does not fully prevent inconsistencies between decisions.⁴¹ While arbitral tribunals attempt to explain ‘. . . the points on which the different case holdings can be distinguished, and the points on which there is analytical disagreement between tribunals’, they may still, of course, reach in their decisions quite different conclusions.⁴² Most, but not all, potential inconsistencies are therefore carefully resolved through the technique of distinguishing. To put it another way, arbitral tribunals that disagree with earlier decisions usually decide to discuss, at least in general terms, differences between the cases in a common law manner.

For instance, in SGS v. Philippines, the arbitral tribunal differentiated between two cases brought by SGS against Pakistan and the Philippines respectively. It pointed to ‘. . . somewhat different legal and factual context’ of these cases and, hence, reached a different conclusion on interpretation of the umbrella clause than the arbitral tribunal in SGS v. Pakistan.⁴³ Similarly, in Bureau Veritas v. Paraguay, the arbitral tribunal felt obliged to explain why it decided not to follow the approach adopted by other arbitral tribunals.⁴⁴ In the past, however, not all arbitral tribunals that decided to deviate from previous arbitral awards saw fit to justify their decisions.⁴⁵ There is little doubt that not only are contradictory arbitral awards on some issues possible, but also that the predictability of arbitral awards can be something of a challenge. To illustrate this, many writings on the topic refer to the award issued in LG&E v. Argentina.⁴⁶ The LG&E tribunal did not cite the earlier award in CMS v. Argentina, although both cases concerned the ‘state of necessity defence’ relating to the very same factual circumstances, namely to the legislation on privatisation of gas utilities in Argentina.⁴⁷ Also, in Azurix v. Argentina, the ad hoc ICSID Committee was ‘. . . against a strict analysis of previous Committee decisions in stay applications as if they were common law precedents’.⁴⁸ These two examples, even though the LG&E award and the Azurix annulment decision were issued over a decade ago, show best that arbitral tribunals dealing with investment treaty matters function independently from each other – i.e., they all stay in a perfectly horizontal relationship.

V OUTLOOK AND CONCLUSIONS

The inherent characteristics of investment law make it impossible to formally develop and apply the doctrine of precedent in investment treaty arbitration. Accordingly, looking from a traditional perspective, it may be misleading to speak about ‘precedent’ or ‘case law’ in the area of investment treaty arbitration. Arbitral tribunals are under no circumstances bound by earlier arbitral decisions and hence, strictly speaking, prior cases are not a source of investment law. One can safely speak about ‘precedent’ in investment treaty matters only if this term refers to prior arbitration decisions generally, but without implying their legally binding force in later cases. Notwithstanding this classic approach, as a matter of practice, most arbitral tribunals engage in discussion of earlier cases in their awards. The trend to cite prior investment treaty decisions is so well established that some commentators suggest the existence of a de facto precedent regime in investment treaty arbitration, or an informal system of precedent. It is often correctly argued that this system contributes to development, and also to greater consistency, of investment law. With that explained, it may sometimes prove somewhat difficult for counsel to foresee to what extent arbitrators will take into account earlier cases in their decision-making process. If arbitrators find some earlier decisions unconvincing, then they normally try to carefully distinguish them from the case at hand, but sometimes, although definitely less frequently, also simply sweep them aside and proceed to draw from other cases.

Full text available in The Investment Treaty Arbitration Review – Edition 3 (May 2018)