Originally from Investment Treaty Arbitration and International Law - Volume 2

Fair and equitable treatment stands at the epicenter of recent debates concerning the lawmaking potential of international arbitration. 

The habits of common law legal argument and the civil law notion of jurisprudence constante, spilling over into investor-State advocacy and arbitral decision-making, have given rise to an implicit—and increasingly, explicit—assumption that the line of cases in investor-State arbitrations does and should constitute a “jurisprudence” of a more or less binding nature.1 Such thinking has emerged notwithstanding the apparent absence of legal justification—and indeed, in the shadow of express provisions to the contrary.2 The jurisprudential weight of arbitral decision-making has been fed by the international investment bar, which has in general either implicitly or expressly favored this development.3