Thesis defence by Wojciech Giemza
Investment treaty arbitration, rooted in public international law yet operating as a hybrid regime, grapples with integrating general international law norms amid normative clashes and an inherent legitimacy crisis. One way to manage these significant challenges is through judicial borrowing from the International Court of Justice (ICJ) and its predecessor, the Permanent Court of International Justice (PCIJ). The Court has a unique position among international courts, making it a particular authority in international law. Investment tribunals are citing the Court, in particular its jurisprudence, as an authority without reciprocal engagement.
This study maps these Court references to map and evaluate their role in bolstering the authority and legitimacy of investment law and arbitration. The study's research questions address the functions of Court references as arguments in investment arbitration. The focus is on when, how, and under what factors the Court is mentioned.
This empirical legal project employs a mixed-methods approach combining doctrinal interpretation and computational text analysis. Statistical analysis correlates references with metadata variables. Structural topic modeling uncovers the contexts and topics of references. The research scope covered all known investment dispute documents from italaw.com (1971 2021), yielding a dataset of 2,842 distinct Court mentions (cases, judges, statutes, rules) as legal arguments across 431 cases. This unique dataset, which presents the complexity and variety of argumentative Court mentions beyond case law, is the project substantive's contribution.
The quantitative and qualitative analysis of the dataset shows that Court references appear most often as case law (but non-case Court authorities are significant as well) in more than half of the known ISDS decisions on a variety of topics. Observed tendencies suggest links among references, topics, time, case outcomes, and ICJ judges serving as ISDS adjudicators. The Court is invoked diversely across topics, underscoring its enduring authority amid investment arbitration s legitimacy challenges.
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