Volume 30 (2013) / Issue 5
One of the core issues of investment law is the protection of foreign investors against expropriation. In the past decade, an enormous development of this field of international law has taken place. Indeed, investment treaties have proliferated to an unprecedented degree, having surged from less than 400 in 1989 to well over 2,500 bilateral, regional and sectorial treaties today. The volume of investor-state arbitrations under these treaties has risen within the last decade to well over 200, with new arbitrations being initiated on an almost daily basis. Considering the great volume of investment treaty arbitrations, the question arises as to whether arbitral tribunals are consistent in their decisions, especially in regard to the concept of indirect expropriation, the central issue for most investment treaty arbitrations. Does a stare decisis principle exist in investment treaty arbitration? What weight should arbitrators give to decisions previously rendered by other arbitral tribunals? Do we need consistency? Does the nature of the system contribute to a fragmentation of investment law and is fragmentation a serious threat to the rule of international law or not? This article aims to discuss these issues and the related question of what the possible solution to the potential fragmentation problem might be. Some scholars have gone so far as to advocate the creation of a standing appeals court or tribunal to deal with challenges to investment awards. What are the benefits and drawbacks of such a proposal?
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