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The Foundations of International Investment LawBringing Theory into Practice$
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Zachary Douglas, Joost Pauwelyn, and Jorge E. Viñuales

Print publication date: 2014

Print ISBN-13: 9780199685387

Published to Oxford Scholarship Online: August 2014

DOI: 10.1093/acprof:oso/9780199685387.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 17 January 2022

Against Consistency in Investment Arbitration

Against Consistency in Investment Arbitration

Chapter:
(p.297) 10 Against Consistency in Investment Arbitration
Source:
The Foundations of International Investment Law
Author(s):

Thomas Schultz

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199685387.003.0011

This chapter challenges the incessant appeal for consistency in investment arbitration. It argues that the moral value of a regime such as investment treaty arbitration depends upon the quality of the decisions comprising the jurisprudence and not upon consistency among those decisions. The arbitrator's mandate is to do justice in the individual case; it is not to safeguard the predictability of the regime in abstracto. An arbitrator concerned with the systemic aspects of the regime — an arbitrator who sees his role as a law-maker — is more likely to sacrifice justice in the individual case to ensure consistency with past decisions. And if the past decisions have consolidated an unjust rule or principle, then making a bad rule, or a bad regime, more consistent, more predictable, more complaint with the idea of the rule of law, does not cure the rule or the regime's badness. Rather, it makes it worse.

Keywords:   investment treaty arbitration, jurisprudence, arbitrators, rule of law, international law

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