Preliminary Rulings in Investment Arbitration

Abstract

Abstract Coherence and consistency of the case law in international investment arbitration has become a matter of concern. Apart from the odd instances of conflicting decisions concerning the same sets of facts,1 there are now several areas in international investment law that have developed diverse lines of authority. This is despite the fact that most tribunals carefully examine previous decisions and follow precedents most of the time. Two examples may suffice to illustrate the danger of conflicting case law and the disorientation that follows in its wake. One concerns so-called “umbrella clauses.” An umbrella clause is a provision in a treaty under which the States parties undertake to observe obligations they may have entered into with respect to investments. In other words, contractual obligations and other undertakings are put under the treaty’s protective umbrella.

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