Book contents
- The Legitimacy of Investment Arbitration
- Studies on International Courts and Tribunals
- The Legitimacy of Investment Arbitration
- Copyright page
- Contents
- Figures
- Tables
- Contributors
- 1 Introduction: The Legitimacy Crisis and the Empirical Turn
- 2 The International Investment Regime and Its Discontents
- Part I Process Legitimacy
- Part II Process Legitimacy
- 7 Foreign Investors, Domestic Courts and Investment Treaty Arbitration
- 8 Ensuring Correctness or Promoting Consistency? Tracking Policy Priorities in Investment Arbitration through Large-Scale Citation Analysis
- 9 Fair and Equitable Treatment: Ordering Chaos through Precedent?
- Part III Output Legitimacy
- Part IV Legitimation Strategies
- Index
8 - Ensuring Correctness or Promoting Consistency? Tracking Policy Priorities in Investment Arbitration through Large-Scale Citation Analysis
from Part II - Process Legitimacy
Published online by Cambridge University Press: 06 January 2022
- The Legitimacy of Investment Arbitration
- Studies on International Courts and Tribunals
- The Legitimacy of Investment Arbitration
- Copyright page
- Contents
- Figures
- Tables
- Contributors
- 1 Introduction: The Legitimacy Crisis and the Empirical Turn
- 2 The International Investment Regime and Its Discontents
- Part I Process Legitimacy
- Part II Process Legitimacy
- 7 Foreign Investors, Domestic Courts and Investment Treaty Arbitration
- 8 Ensuring Correctness or Promoting Consistency? Tracking Policy Priorities in Investment Arbitration through Large-Scale Citation Analysis
- 9 Fair and Equitable Treatment: Ordering Chaos through Precedent?
- Part III Output Legitimacy
- Part IV Legitimation Strategies
- Index
Summary
Critics have raised concerns that investment arbitration tribunals treat like cases differently – raising problems of consistency – and different cases the same – creating problems of correctness. Using network analyses of case citations, this chapter examines an observable selection of what a tribunal considers to be ‘relevant’ precedent. The author finds that tribunals are more concerned with consistency than correctness, with many tribunals citing precedents based on textually dissimilar treaties. However, this is contrary to what states consider the priority in ISDS reform debates – in which correctness is higher than consistency in the hierarchy of policy preferences. The chapter concludes that states can resolve that mismatch by hard-coding their policy preferences into institutional design. It is argued that, as part of the ISDS reform, states should make the ordering between correctness and consistency considerations explicit when reshaping adjudicatory authority in future ISDS institutions.
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- Information
- The Legitimacy of Investment ArbitrationEmpirical Perspectives, pp. 230 - 255Publisher: Cambridge University PressPrint publication year: 2022
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