5 - Approaches to External Precedent: The Invocation of International Jurisprudence in Investment Arbitration and WTO Dispute Settlement

Summary

This chapter investigates and compares the attitudes that two different types of dispute settlement bodies dealing with international economic law – investment arbitration tribunals and the WTO Panels and Appellate Body – exhibit towards the decisions of other international adjudicators. Firstly, all the cases citing external precedents are mapped –employing citation and network analysis techniques – to identify the most cited courts and decisions and which issue areas prompt recourse to external precedent. Secondly, the author assesses the importance in identifying guiding precedents of factors such as: the legal regime, the factual matrix, the quality of the decision’s reasoning, and the reputation of the adjudicators that rendered it. Thirdly, he considers whether the invocation of external precedent might pursue goals going beyond the ones traditionally identified in the literature. Finally, the author compares the ways in which external precedent are currently employed by trade and investment adjudicators under a systemic perspective.