9 - Coherence, Consistency, and the Reform of Investment Treaty Arbitration

Summary

In this chapter, Eric De Brabandere zeroes in on the settlement of disputes in the context of investment arbitration. This chapter accepts that the case law of the current investor-State dispute settlement system is inconsistent and unpredictable and requires reform. However, this chapter claims that the problems associated with the dispute settlement system for investment arbitration cannot be isolated from broader questions on the coherence of general international law, the determinacy of legal norms, and the role of arbitral tribunals in the interpretation of these norms. The chapter argues that coherence is a matter of degrees and that a ‘middle ground’ might be to consider that international investment law forms part of international law, which is a coherent legal system from the perspective of the sources or the secondary norms of international law. Consistency, on the other hand, is not completely achievable in the current investment landscape, given its lack of uniformity in terms of substantive law and ad hoc method of dispute settlement. Consistency must be sought through different options, such as redrafting investment treaties to ensure better balance and predictability of outcomes.