Content Join OGEMID
 
  • Linkedin
  • Twitter
  • Rss

Transnational Dispute Management

Skip navigation

Transnational Dispute Management

The network for international arbitration, mediation and ADR, international investment law and Transnational Dispute Management

Join OGEMID

Transnational Dispute Management

The network for international arbitration, mediation and ADR, international investment law and Transnational Dispute Management

  • Sign in
  • Subscribe
  • Home
  • Sign in
  • About About
    1. Home
    2. About
    3. About TDM
    4. About TDM
    5. Founding Editor T.W. Wälde
    6. T.W. Wälde
    7. Editorial team
    8. Editorial team
    9. Contributing Authors
    10. Contributing Authors
    11. Subscriptions
    12. Subscriptions
  • Journal Journal
    1. Home
    2. Journal
    3. Browse Issues
    4. Browse
    5. Articles by Category
    6. By Category
    7. Articles by Author
    8. By Author
    9. Advance publication
    10. Advance publication
    11. Specials
    12. Specials
    13. Search
    14. Search
    15. Book reviews
    16. Reviews
  • Legal & Regulatory docs. L & r docs
    1. Home
    2. Legal & Regulatory docs.
    3. L&R by Country
    4. L&R by Country
    5. L&R by Category
    6. L&R by Category
    7. L&R recent additions
    8. L&R recent additions
    9. Search
    10. Search
  • Audiovisual library AV library
    1. Home
    2. Audiovisual library
    3. Audiovisual Library
    4. Audiovisual Library
    5. TDM/OGEMID Interviews
    6. TDM/OGEMID Interviews
    7. Conference presentations
    8. Conference presentations
  • OGEMID OGEMID
    1. Home
    2. OGEMID
    3. About OGEMID
    4. About OGEMID
    5. Suggest a topic
    6. Suggest a topic
    7. Guest programme
    8. Guest programme
    9. Seminar programme
    10. Seminar programme
    11. Browse archive
    12. Browse archive
    13. Search
    14. Search
    15. Join
    16. Join
  • News & Events Events
    1. Home
    2. News & Events
    3. News
    4. News
    5. Events
    6. Events
  • Subscribe
Home > Journal

Special Issue on Precedent in Investment Arbitration

  • Sign in
  • Table of contents
  • In this category
  • Suggested citation
M. Weiniger
Weiniger, Matthew

Article from: TDM 3 (2008), in Editorial

I am delighted to introduce this TDM Special on Precedent in Investment Arbitration. The role played by precedent in investment arbitration is becoming more widely appreciated as the number of decided cases increases. This makes it easier to comment in an informed manner upon the inter-relationship between various tribunals. This Special arrives at a most appropriate time to digest, review and add to the growing amount of jurisprudence in this area.

To the extent that investment treaty arbitration represents a fusion of the two worlds of international commercial arbitration and public international law, the fact that the awards are treated as having some precedent effect brings about substantive changes in both camps.

Ten years ago, at the 1998 ICCA Congress held in Paris, no sessions at all were dedicated to investment arbitration. The entire programme was devoted to the opportunity afforded by the date of commemorating the 40th Anniversary of the New York Convention. Even the session entitled "Experience with Bilateral Treaties" was devoted to bilateral treaties on the recognition and enforcement of foreign judgment and arbitral awards. By contrast, in a few weeks when ICCA meets in Dublin, investment arbitration will take up 50% of the programme. The date again affords an opportunity to commemorate a significant anniversary of the New York Convention, yet this opportunity is afforded a half day rather than becoming the full theme of the conference itself.

Anyone spending time at arbitration conferences over the period between 1998 and 2008 will have noticed that investment arbitration has given transnational dispute lawyers a (unique?) opportunity to comment upon, and even create, issues of substantive law. Before the advent of investment arbitration, arbitration conferences did not tend to address questions of English, French or Swiss contract law or other substantive legal issues which were decided in arbitrations. Instead, such conferences were confined to questions of procedural law with the transnational lawyers who were attending taking upon themselves the responsibility to build the framework that would provide the process with international efficacy. In this way, solutions to problems such as arbitrators deciding upon their jurisdiction, multi-party difficulties and choice of law were promulgated, considered and proselytised. Now conferences are often devoted to discussing the substantive legal principles rather than framework procedural issues alone.

The changes for the public international lawyers are also stark. Before investment arbitration, public international lawyers needed only to keep abreast of the glacial turnings of the ICJ docket, as well as a scattered few arbitral awards. Those working to keep up with the economic effects of international law are finding that the jurisprudential wheel is spinning much faster now.

Considering the doctrine of precedent creates an opportunity to stand back and review the legal framework within which this discussion is taking place. There is so much more to say than the simple initial observation that while tribunals are not strictly bound to follow previous decisions, they do so in many instances thereby creating a de facto doctrine of precedent. Indeed, this de facto practice has reached the stage whereby the common law type rules developed by tribunals to fill in the various "gaps" in the generally succinct wording of investment treaties can be digested and set out in legal treatises and become themselves an important part of the law. A few issues, such as the scope of umbrella clauses or the meaning of most favoured nation provisions are not settled. Nonetheless, a far greater number of potentially controversial issues have been. For example, no one today seriously questions whether arbitrations under investment treaties require a separate submission to arbitrate between the parties, even though this was an issue raised by state respondents in early cases and the subject of some scholarly dispute. Similarly, many potentially controversial issues on the meaning of "investment" or the meaning of "national" are being given consistent answers by whichever tribunals discuss them. The power of the informal precedent system results in these solutions being written into the law.

This Special considers precedent from the point of view of decided cases, in comparison with other institutions and from a forward-looking, policy-considering, point of view. I hope that it will itself play a role in the continuing development of substantive principles in this ever-fascinating field.

Lastly, I wish to thanks Thomas Wälde and the OGEL/TDM team for the opportunity to publish this Special, and of course the authors for their excellent contributions.

Matthew Weiniger
Herbert Smith LLP
27 May 2008

To read this article you need to be a subscriber

Sign in

Forgot password?

Sign in

Subscribe

Fill in the registration form and answer a few simple questions to receive a quote.

Subscribe now

Why subscribe?

TDM journal

Access to TDM Journal articles (well over 2500 articles in total for Premium account holders)

Legal & regulatory

Access to Legal & Regulatory data (well over 10000 documents)

OGEMID

OGEMID membership (lively discussion platform bringing together the world's international dispute management community)

Suggested Citation

M. Weiniger; "Special Issue on Precedent in Investment Arbitration"
TDM 3 (2008), www.transnational-dispute-management.com

URL: www.transnational-dispute-management.com/article.asp?key=1236

Call for contributions

TDM Call for Papers: National Courts as a Forum for the Resolution of Disputes under Article 26 Energy Charter Treaty

John P. Gaffney, Dr. iur Richard Happ,
Lucia Raimanova, Anna-Maria Tamminen, Dr. Catharine Titi

  • John P. Gaffney
  • Dr. iur Ricard Happ
  • Lucia Raimanova
  • Anna-Maria Tamminen
  • Dr. Catharine Titi

TDM Call for Papers: International Investment Arbitration - Environmental Protection and Climate Change Issues

Professor Dr A F M Maniruzzaman, Wendy J. Miles QC, Carla Lewis,
Dr Jane Willems, Dr Stephen Minas

  • Professor Dr A F M Maniruzzaman
  • Wendy J. Miles QC
  • Carla Lewis
  • Dr Jane Willems
  • Dr Stephen Minas

TDM Call for Papers: The Future of Investment Law in Latin America

Dr. Sébastien Manciaux and Francisco Victoria-Andreu

  • Sebastien Manciaux
  • Francisco Victoria-Andreu

TDM Call for Papers: Islamic Finance and Dispute Resolution

Professor Dr A F M Maniruzzaman

  • Professor Dr A F M Maniruzzaman

TDM Call for Papers: The African Continental Free Trade Agreement (AfCFTA)

J. Chaisse, J. Górski, E. Laryea, M.M. Mbengue, and K. Olaoye

  • Prof. Julien Chaisse
  • Dr. Jedrzej Gorski
  • Prof. Emmanuel Laryea
  • Prof. Makane Moïse Mbengue
  • Kehinde Olaoye

TDM Call for Papers: International Investment and Competition Law in AND with the Global South

Prof. Leila Choukroune and Anu Monga

  • Prof. Leila Choukroune
  • Anu Monga
  • More
  • Contribute

Advance publication

The Chronicles of the Pre-Colonial Method of Settling Disputes: Nigeria as a Case Study

24 May 2022

C. Egbunike-Umegbolu

  • C. Egbunike-Umegbolu

The 'Jurisdiction-Admissibility' Dichotomy in Multi-Tier Dispute Resolution Clauses: Why the decisions in Sierra Leone and C v. D are Lighthouses for India and other Jurisdictions

22 Apr 2022

V.S. Kolhe

  • V.S. Kolhe

Summary of Young-OGEMID Hot Topic Discussion No. 1: "Investment Issues and Economic Sanctions Following Russian Aggression in Ukraine (March 2022)"

5 Apr 2022

A. Singhal

  • A. Singhal
  • More
  • Contribute

Stay connected

Sign up for our email alerts.

  • Issues
  • Advance publication
  • News
  • Linkedin
  • Twitter
  • RSS

Join the debate

Want to join OGEMID, the leading on-line discussion platform for international dispute resolution?

Simply fill in the registration form to start your trial membership.

Download the app

  1. App store
  2. Google play

The Transnational Dispute Management Journal (TDM, ISSN 1875-4120) and OGEMID listserv focus on recent developments in the area of (investment) arbitration and dispute management, regulation, treaties, judicial and arbitral cases, voluntary guidelines, tax and contracting. Read our Terms & Conditions here, and our Privacy Policy here.

About TDM

  • Terms & Conditions
  • Contribute
  • Subscriptions
  • Contact
  • Help

Other publications

  • Oil, Gas & Energy Law Intelligence (OGEL)
  • Transnational Arbitration Observer (TAO)

© 2004 - 2022. Published by MARIS.

  • Home
  • Contribute
  • Subscriptions
  • Contact
  • Help