In International Investment Arbitration, The Study Actually Follows Precedent

International investment arbitration frequently refers to the past decisions in practice,which has the effect of actually following the precedent.This is the clue of this paper to study the inconsistency of international investment arbitration decisions in the reform of investor-state dispute settlement mechanism(ISDS).In the past,some of the rulings were persuasive,which may have certain influence on the settlement of subsequent cases,and even form the guiding rules to solve a certain problem.This in fact reflects the precedent value of the decision.Based on the research of factual precedents,this paper explores the causes and potential problems of factual precedents,and tries to find some methods and approaches to improve the value of the precedents,so as to alleviate the inconsistency of investment arbitration awards.Combined with the background of ISDS reform,on the one hand,it testifies to the precedent value of improving the judgment,which is conducive to the scientific rationality of decision-making,on the other hand,it also sees the new direction of future investment dispute settlement mechanism.This article altogether five chapters besides introduction and conclusion,the author tries to show the relevant concepts of the study and qualified,then analyses the present situation and its constituent elements in fact follow precedent,on the basis of the legitimacy of arbitrator making law behavior,and then through the case analysis examined consistent decisions precedent value to promote the actual effect,finally based on the analysis of ISDS reform plan and process and systematic reform of the legal guarantee of consistency,the author puts forward some Suggestions for China’s reform of ISDS.Chapter one defines the concept of precedent.The connotation and extension of precedent are very complicated in different legal systems and systems.Firstly,the author introduces the different meanings and relevant rules of precedent in a specific system of domestic law and international law.The past awards in international investment arbitration only include the awards,decisions and orders made by the international investment tribunal.Then,the paper further expounds the three aspects of the value of precedent in investment arbitration: predictability,accuracy and legality.Chapter two makes it clear that the precedents cited in international investment arbitration form a de facto precedent and analyzes its constituent elements from two aspects: preconditions and influencing factors.In fact,the preconditions for stare decisis are the making of a ruling,the publication of a ruling,and the invocation of an established ruling.Factors are more complex,including the degree of relevance to past rulings,the specific nature of applicable legal rules,persuasive authority,and the number of citations that will affect the specific degree of stare decisis.Among them,persuasive authority is a relatively important influencing factor,which is influenced by realistic factors,rational factors,professional factors and social factors.Finally,through the empirical analysis of de facto precedent,this paper analyzes the three types of citation of the arbitral tribunal,application and reference to precedent,and also discusses the special case that the arbitral tribunal does not involve precedent.Chapter three mainly demonstrates the legitimacy of citing precedent.De facto precedent has been established in international investment arbitration,but orthodox international law does not allow the tribunal’s decision to become the source of international law.Based on these differences,this paper discusses the arbitral tribunal’s defense of this practice and scholars’ views on the theoretical basis of this practice.In particular,the tension between the high degree of uncertainty of states in bilateral and multilateral treaties and the need for the tribunal to identify and apply major legal rules sufficient for the concrete settlement of practical disputes was examined.Then,it discusses the legality and special significance of arbitrator law.Finally,the complex and informal discourse in the independent arbitral tribunal goes beyond the rules derived from investment treaties and international customary law,inevitably shaping international investment law and restricting future arbitral tribunals and treaty negotiators.Chapter four makes a specific analysis of the cases involving investment protection standards.Although there are still many detailed differences of opinion among the arbitral tribunals on the same issue,it generally finds that precedent is conducive to the consistency of the award.Taking the investment concept as an example,the disputes in the arbitration cases are divided into subjective investment concept and objective investment concept.In the end,most of the cases choose the salini test standard,although there are still some differences in the details of the standard.Analyze the most-favored-nation principle,found a case group is divided into specific applicable conditions in entity and procedure problems,consistent applicable case,the problems in the real problems and procedure was applicable to,there are some differences,most of the cases that may not apply to the jurisdiction of the problem and there are one or two special and isolated cases;Through the case study for full protection and security requirements,discussed the requirements and habits of international law in the middle of the three different kinds of relations,as well as the mutual influence between fair and just principles,the arbitration tribunal has certain consistency between the views,if it is the individual aspects,such as investment legal environment is protected,there are different views,also won’t lead to serious inconsistent.Chapter five on the one hand will explore how to play a precedent value to solve the problem of inconsistency of judgment,on the other hand it is the ISDS reform under the background,through the comparative analysis of different reforms,think deeply about the direction of the system reform and the impact on the legal consistency,and China should be prepared in the reform measures.First,a comparison of a series of Argentine cases shows that a clear determination of "unreasonable inconsistencies" would be the first step to solving the problem,and that in the absence of legally binding precedents,maximizing the precedent-setting value of a decision is a positive factor in promoting consistency.Secondly,it emphasizes that improving the quality of the award is the key to guarantee the value of precedent,because the quality of the award will directly affect whether the arbitrators choose to follow.The quality of the award affects its persuasiveness,which is mainly influenced by the content of the award,the procedure of the award and the arbitrator.Therefore,from these aspects,how to ensure the value of precedent play.Finally,combined with the ISDS reform,this paper discusses the guarantee of legal consistency from the macroscopic and systematic reform,and puts forward some Suggestions for China.