THE SAGA OF CMS: RES JUDICATA, PRECEDENT, AND THE LEGITIMACY OF ICSID ARBITRATION

The spate of recent investment arbitration cases against repeat-respondent States, as well as the increasingly strident legal and political pushback these cases have begun to engender, call into question in various ways whether ICSID arbitration will continue to be a useful and legitimate forum for resolving international disputes. This chapter evaluates the continued viability of ICSID arbitration in light of these developments. Section A describes the relative legal finality and binding nature of ICSID awards as compared to other forms of adjudicating international disputes and observes that an individual ICSID award entails one of the legally most final and binding dispositions in international law, subject only to a few narrow ‘remedies’ against an award (the most notable being annulment). Section B describes that there is no formal general doctrine of binding precedent or stare decisis in ICSID arbitration and thus how an ICSID award, final and binding though it may be for an individual case, does not bind subsequent tribunals faced with the same or similar issues. Finally, it discusses the recent decision by the ad hoc (annulment) committee in CMS Gas Transmission Co v Argentine Republic, which shows that the ICSID system not only maintains the finality of individual awards, but also provides an opportunity for such a committee at least to comment on the reviewed tribunal's application of the law in a particular case and thus contribute to the corpus of international investment law.