The Role of Judicial Precedent as a Source of International Investment Law
This paper examines the position of judicial precedent in international investment law in the context of international investment arbitration, interrogating its rationale and implications under the provisions of Article 38 (1) (d) of the ICJ Statute. The paper seeks to explain what appears to be an...
محفوظ في:
| المؤلف الرئيسي: | |
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| مؤلفون آخرون: | |
| منشور في: |
2025
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| الوصول للمادة أونلاين: | https://bspace.buid.ac.ae/handle/1234/3133 |
| الوسوم: |
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| الملخص: | This paper examines the position of judicial precedent in international investment law in the context of international investment arbitration, interrogating its rationale and implications under the provisions of Article 38 (1) (d) of the ICJ Statute. The paper seeks to explain what appears to be an ‘over reliance’ on previous decisions by investment treaty arbitral tribunals in their task of resolving investor-state disputes. It argues that although in theory, previous decisions of courts and tribunals are non-binding on subsequent courts and tribunals as they constitute only a ‘subsidiary’ source of law, nevertheless in practice, investment treaty tribunals rely heavily on previous decisions in arriving at their own decisions arguably to promote a harmonious development of investment law and to meet the legitimate expectations of the community of States and investors towards the certainty of the rule of law. The paper demonstrates that investment tribunals have, through interpretation of treaties, created and defined remedies, rights, and obligations under international investment law much more than formal sources set out those rights thereby influencing content of treaty standards of the international investment law and the phrasing of the terms of the treaties. The paper proposes that to support the role of precedent in investment dispute resolutions, investment treaties should explicitly provide for application of precedent. |
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