Iran-United States Claims Tribunal Precedent in Investor-State Arbitration

Abstract

The article examines the jurisprudential value of Tribunal decisions and awards from both theoretical and empirical perspectives. The article considers four factors for assessing the precedential value of awards and decisions of international tribunals: (i) the integrity and authoritative standing of the court or tribunal issuing the earlier decision; (ii) the similarity of the relevant facts in the two cases, (iii) the similarity of the law relied on as necessary to making the decision (the decisional law); and (iv) the merits or instructive value of the prior tribunal's reasoning in reaching its decision - hence, its exposition of the law. Applying these factors to the jurisprudence of the Iran-U.S. Claims Tribunal demonstrates the importance of that jurisprudence as persuasive authority in investor-State arbitration. Part I of the article examines the extent to which Tribunal precedent has been cited by parties and tribunals in investor-State arbitrations. The citation analysis finds significant citation of Tribunal precedent in awards and decisions in arbitrations administered by the International Centre for Investment Disputes (ICSID), and in party submissions in arbitrations under Chapter 11 of the North American Free Trade Agreement. Thus, the awards and decisions of the Iran-U.S. Claims Tribunal have been and likely will continue to be an important source of authority in investor-State arbitration.