The Reception of ICJ Case Law in the Decisions of ICSID Tribunals: A Special Reference to Jurisdictional Issues

Abstract

The impact which International Court of Justice (ICJ) case law has on the investment arbitration context has not been sufficiently addressed by doctrine, especially its impact on those decentralized dispute settlement subsystems, usually identified as autonomous or special, such as the arbitral system established under the International Centre for Settlement of Investment Disputes (ICSID). The present work studies how ICSID arbitral tribunals applied ICJ case law to procedural or jurisdictional issues they were hearing. These tribunals have frequently resorted to the decisions of this judicial body when interpreting and applying investor/State dispute settlement provisions, always pursuant to those rules and principles of systemic nature, such as the principle of State consent to international jurisdiction. Likewise, the institutional dimension of ICSID arbitral tribunals is a factor which may contribute to the consolidation of a “jurisprudence constante” in investment arbitration, at least in procedural or jurisdictional issues.