Beside the point-On obiter dicta in investment treaty arbitration

Abstract

The article discusses the tendency for investment arbitration tribunals to include obiter dicta reasoning in awards. Initially, the distinction between obiter dicta and ratio decidendi in the investment arbitration context is discussed. Secondly, by way of illustration, five arbitral awards are presented where, it is argued, the tribunals contributed with material discussions that were not necessary for their operative findings. In the third section this tendency to address tangential issues in awards will be discussed and put into context. In the fourth and final section it is argued that such reasoning should be done with considerable caution in international arbitration. In this respect a tribunal in an investment treaty case is no different from one in a commercial arbitration based on a contract; at least not in the current procedural framework.