Environmental Engineering Reference
In-Depth Information
On the other hand, there are also arguments supporting stare decisis.
146
First of
all, it is a difficult path to establish stare decisis because precedents should not be
ignored or undisputedly accepted.
147
Hence, it is vital to assess possible precedents
fully prior to utilization.
148
It is not uncommon to use different international legal
documents as guidance to solve problems related of a pending case.
149
There is also
a risk of fragmentation of international investment law because of the great amount
of investment cases.
150
This can undermine the predictability and reliability of the
whole investment system.
151
Stare decisis could be a possible way to prevent the
fragmentation of international investment law,
152
and help to establish consistency
in arbitral proceedings and awards.
153
Investors and states will examine all relevant decisions to assess whether they
have any rights or liabilities,
154
as it is common practice to refer to precedents.
155
Therefore, it would not be surprising if investment tribunals adopted or followed
decisions of other investment tribunals, which have dealt with the same BIT.
156
It is
undisputed that there is no stare decisis doctrine within international law, and
consequently in international investment arbitration. However, a de facto stare
decisis exists in practice. There is also no doubt that Morocco/ONE and a possible
investor are going to consider suitable precedents to reinforce their arguments.
Previous ICSID tribunals
decisions must be guidelines. If one tribunal has already
decided a comparable question, there is a great chance that the newly established
tribunal will take this into account. There is no guarantee that the tribunal will feel
“obliged” to follow any precedent. Hence, it is advisable to take all possible
previous cases into account and make a check list of “dos and don
'
ts”.
'
146
Commission (
2007
), 129 (132).
147
Sureda (
2009
), 830 (842).
148
Johannsen (
2009
), 5 (27); Commission (
2007
), 129 (154).
149
A NAFTA tribunal referred to decisions of the European Court of Human Rights (ECHR) to
solve a problem of an immunity claim, in: UNCTAD (
2009
), 4; Other tribunals (including ICSID)
referred to the ECHR in a case of definition concerning de facto expropriation or to the Inter-
American Courts of Human Rights (IACHR) concerning the analysis of an expropriation claim, in:
UNCTAD (
2009
), 5-6.
150
Metje (
2008
), 167; Reinisch (
2008
), 107 (114).
151
Reinisch (
2008
), 107 (119).
152
Reinisch (
2008
), 107 (122).
153
Sureda (
2009
), 830 (839).
154
Franck (
2005
), 1521 (1612).
155
Gantz (
2004
), 679 (689); Franck (
2005
), 1521 (1612); cf ICSID [2007] ARB/05/07, 20 para 67.
156
Furthermore, if provisions of BITs are treated differently by investment tribunals, this can
seriously undermine investment protection, in: Gantz (
2004
), 679 (689); cf ICSID [2008] ARB/05/
12, 18 para 50.
