Ratio Decidendi of International Investment Arbitration Tribunals

The paper is devoted to a comprehensive analysis of international investment arbitration practice. The author made an attempt to systematize more than fifty most important cases based on modern foreign and Russian doctrine. The study concludes that the role of the legal positions of investment arbitration is as follows: arbitral awards are not full-fledged sources of law, but it is permissible to talk about the existence of a de facto precedent, ie, quasi-norms of investment law. At the same time, the precedent should be understood as such conclusions of arbitration, which are perceived by the international legal community due to the credibility of the legal positions outlined in them. Thus, in the sphere of international investment arbitration, a system is already being formed in which previously accepted arbitration decisions are gradually transformed into precedents of investment arbitration. In addition, the study highlights the main issues facing investment arbitration: the jurisdiction of the arbitration tribunal (ratione materiae, ratione personae and ratione temporis), the notion of investment and expropriation, different types of reservations about investment protection as a result of changing circumstances (umbrella clause, MFN clauses and grandfather clause), a review of decisions on force majeure issues, aspects of the application of the doctrine clausula rebus sic stantibus and doctrine of laches. It should be noted that the practice of disputes over investments is ambiguous and uneven. However, in the last decade there has been a positive trend, which allows to speak about the good results of the outlined reform of investment arbitrage.