Is There Life After Death?: The Persuasive Value of Annulled Investment Awards

Abstract

Abstract In investment arbitral jurisprudence, previous decisions of arbitral tribunals are held in high regard. But what happens to an award’s persuasive value when it is annulled? The article seeks to examine the legal status, legitimacy, and, through these factors, the persuasiveness of annulled investment awards. The article finds that since the quasi-precedential system of investment arbitration is largely governed by meta-legal considerations, the status of annulled awards is also governed by these considerations, that is, considerations of legitimacy. The author compares the persuasive value of annulled investment awards with that of dissenting opinions of arbitrators and with overturned World Trade Organization (WTO)Panel Reports with the aim of shedding some additional light on questions of legitimacy and persuasiveness. Finally, the article offers a typology of investment arbitral tribunals’ possible reasons for referring to annulled awards and illustrates the relevant categories with some of the more influential annulled investment awards of recent years.