A Role for Precedent in the Determination of the Standard of Review Applicable by Investment Arbitral Tribunals? A Case Study of ect-based Energy Disputes Against Spain

Abstract

The present article enquires whether arbitral “precedent” plays any part in the identification of the applicable standard of review by arbitral tribunals. It does so by surveying a selected sample of arbitral awards that displayed a remarkable degree of uniformity and that might have encouraged arbitral tribunals to resort to previous case law when applying a specific standard of review. This sample consists of regulatory disputes initiated against Spain for alleged violations of the fair and equitable standard provided by Article 10(1) of the Energy Charter Treaty. The article initially gives an account of the relevance of the standard of review doctrine and of the role of precedent in international investment arbitration. It then moves to investigate the possibility that previous case law has served as the legal basis for determining the appropriate standard of review in the regulatory disputes against Spain. Based on the analysis of the Spanish cases, the article finally elaborates on the role of precedent in the identification of the applicable standard of review in general terms.