8 - Adjudicative Coherence and Democratic Checks on Arbitral Jurisprudence

Summary

In the field of international investment law, arbitrators need to produce a consistent body of case law to specify the broad principles typically embodied in the treaties. The fact that most arbitral awards state reasons and are published helps generate a culture of precedent. Arbitrators, moreover, are aware of the need for their decisions to form a coherent body of jurisprudence. The arbitral arrangements, however, are not structured in such a way that consistency is likely to be achieved. In any event, to the extent that arbitrators play a role in the lawmaking process, certain mechanisms must be available for the democratic branches to check the outcomes of arbitration. The chapter discusses these issues, and takes the question whether it would be desirable to set up a global court of a permanent kind to deal with investment controversies.