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Critical International LawPostrealism, Postcolonialism, and Transnationalism$
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Prabhakar Singh and Benoît Mayer

Print publication date: 2014

Print ISBN-13: 9780199450633

Published to Oxford Scholarship Online: November 2014

DOI: 10.1093/acprof:oso/9780199450633.001.0001

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Of Precedents and Ideology

Of Precedents and Ideology

Lawmaking by Investment Arbitration Tribunals

(p.276) 11 Of Precedents and Ideology
Critical International Law

René Urueña

Oxford University Press

This chapter engages with the issue of precedent-formation and lawmaking by investment arbitration tribunals. International adjudication follows the Civil Law tradition according to which a court’s decision is limited in scope and application to the particular case before it, not the common law principle of stare decisis that commands the judges to follow precedent. The chapter shows that a precedent is more than a subsidiary source of interpretation in international law. For it, Global Administrative Law fails on the narrative underlying investment arbitration as a technology of global governance. These reconstructive models do not engage much with the political forces involved in turning the spotlight on expertise. The chapter reconsiders critically the structures that led investment law to its political and doctrinal place in the general landscape of international law.

Keywords:   precedent, ideology, investment arbitration tribunals, international adjudication, transnationalism, stare decisis

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