Fair and Equitable Treatment: Ordering Chaos through Precedent?

Fair and Equitable Treatment: Ordering Chaos Through Precedent? Florian Grisel Chargé de recherche (Centre national de la recherche scientifique, Université Paris-Ouest La Défense Nanterre); Senior Lecturer in Transnational Law (King’s College London). and Meng Jia Yang Yale Law School, J.D. 2015; Yale University, B.A. 2012. In recent years, investment arbitration has been heavily criticized for its lack of transparency, its undemocratic foundations, and the legal uncertainty that it imposes on investors and states. The backlash seems to have reached fever pitch in the on-going negotiations of several major trade treaties, the Transatlantic Trade and Investment Partnership (TTIP), the Comprehensive Trade and Economic and Trade Agreement (CETA), and the Trans-Pacific Partnership (TPP). At the core of this backlash lies a particularly heated debate surrounding the fair and equitable treatment standard (FET), which has increasingly served as the basis for claims brought by investors against states. Over the last year, for instance, the press has blamed the FET for giving investors carte blanche “to sanction governments over everything from banning chemicals, withdrawing tax breaks or writing new environmental regulations”, Tom Bergin, Doubts over EU’s Proposals for Saving US Trade Deal, Reuters, June 16, 2015, http://www.reuters.com/article/2015/06/12/us-europetrade-ttip-idUSKBN0OS1UC20150612. for lacking any common definition, Amy Westervelt, Lawsuit Against El Salvador Mining Ban Highlights Free Trade Pitfalls, The Guardian, May 27, 2015, http://www.theguardian.com/sustainable-business/2015/may/27/pacific-rim-lawsuit-el-salvador-mine-gold-free-trade ( “[E]ach company and government has their own interpretation of what constitutes ‘fair and equitable.’”) and for being a “vague and amorphous standard.” Simon Lester, Letter to the Editor: Foreign Investors, The Economist, Oct. 25, 2014, http://www.economist.com/news/letters/21627551-letters-editor. In short, according to its critics, the FET is proof of how chaotic and unpredictable the system of investment arbitration can be. A second debate runs parallel to the FET discourse but focuses on the emergence of precedent in investment arbitration. Advocates of legal orthodoxy would prefer to nip this trend in the bud. In their view, an arbitrator’s mandate is limited to the cases he or she is called upon to resolve, and a system of binding precedent would only add to the chaos. See, e.g., W. Michael Reisman, “Case Specific Mandates’ versus ‘Systemic Implications’: How Should Investment Tribunals Decide?: The Freshfields Arbitration Lecture, 29 Arb. , 131 (2013); Gilbert Guillaume, The Use of Precedent by International Judges and Arbitrators, 2 J. Int’l Disp. Settlement 5, 16-18 (2011). Some arbitrators share this resistance to precedent. A panelist in Burlington v. Ecuador, for example, considered it “her duty to decide each case on its own merits, independently of any apparent jurisprudential trend.” Burlington Resources Inc. v. Ecuador, ICSID Case No. ARB/08/5, Decision on Liability, ¶ 187 (Dec. 14, 2012). Despite the vocal criticism of the FET and of precedent, as an empirical matter, both play highly influential roles in investment arbitration. Found in most BITs, the FET is one of the most heavily litigated provisions and a cornerstone of investor protections. Christoph Schreuer, Fair and Equitable Treatment in Arbitral Practice, 6 J. World Investment & Trade 357, 359 (2005). As our study and others have documented, tribunals are increasingly citing prior arbitral awards and considering previous tribunals’ interpretations of various provisions. Tai Heng Cheng, Precedent and Control in Investment Treaty Arbitration, 30 Fordham Int’l L.J. 1014, 1016 (2006). In other words, investment arbitration is gaining a system of precedent without the formal norm of stare decisis that governs national common law systems. Rather than turning a blind eye or condemning these developments, academics, practitioners, and arbitrators alike should pay close attention to the rise of FET and of precedent. While the investment arbitration literature has lavished much attention on the FET and on precedent as separate matters, no one has yet studied their emergence as dual and intertwined trends. This chapter aims to do just that. By tracing the citation and treatment of precedent within the FET case law, this study uses each as a lens for understanding the other. The FET is an ideal case study for the emergence of precedent as a tool of control in a decentralized system, of order within chaos. FET provisions are similarly worded across BITs such that FET interpretations can apply across cases and be considered one body of case law. In addition, the language of FET provisions is open-textured and vague, forcing interpreters to fill in the gaps with their own definitions. The amorphous language also leaves arbitrators eager for guidance and justifications for their particular approach, which reliance on prior interpretations can provide. Finally, since the FET arises so frequently in claims by investors, it has spawned a large number of interpretations by various investment tribunals. As a result, by delving into the well-developed FET case law, we can see whether arbitrators invoke precedent and how they use prior interpretations to fashion a new standard of investor protection. This process is akin to the creation of judge-made standards in common law systems such as negligence in U.S. tort law. Leon Green, The Negligence Issue, 37 Yale L.J. 1029 (1928). Just as the FET illuminates the role of precedent in investment arbitration, studying the various strands of citations reveals different approaches to the FET, all competing for influence within the ad hoc, decentralized system. As discussed below, our study isolates three distinct interpretations of the FET, each of which can be traced back to a key precedent. Only by studying the pattern of citations can we fully understand the complexity and dissonance within this single standard and the trends of convergence and divergence over time. We hope to offer both a static but nuanced snapshot of the FET as it currently stands and a dynamic account of how certain interpretations come to dominate others. These insights into precedent and the FET help to make sense of what appears at first glance to be a system defined by chaos and to rebut the charges of intractable disorder levied against investment arbitration. Our study bridges the existing FET and precedent literatures and aims to fill in gaps left in both areas. At the same time, this deep-dive into the FET engages with the systemic debates on investment arbitration that have plagued the system since its inception and received renewed attention in the global media. The current FET commentary divides into two strands. The first camp seeks to clarify the FET’s contours E.g., Rudolf Dolzer, Fair and Equitable Treatment: A Key Standard in Investment, 39 Int’l Lawyer 87 (2005), Rudolf Dolzer, Fair and Equitable Treatment: Today’s Contours, 12 Santa Clara J. Int’l L. 7 (2014); Schreuer, supra note 6. or even find a “common theory” of FET E.g., Kenneth Vandevelde, A Unified Theory of Fair and Equitable Treatment, 43 N.Y.U. J. Int’l L. & Pol. 43 (2010). on the basis of existing cases. Contrary to this first strand of research, this chapter focuses on the way in which competing interpretations of the FET emerge and how the case law converges or diverges. The second strand of research places the FET within a general understanding of foreign investment law, linking it with the development of global administrative law. E.g., Benedict Kingsbury & Stephan Schill, Public Law Concepts to Balance Investors’ Rights with State Regulatory Actions in the Public Interest – the Concept of Proportionality, in International Investment Law and Comparative Public Law 75 (Stephan Schill ed. 2009); Stephan W. Schill, Fair and Equitable Treatment under Investment Treaties as an Embodiment of the Rule of Law, 3 Transnat’l Disp. Mgmt. 1 (2006). The chapter also seeks to situate the FET within a broader conception of foreign investment law, but it uses this standard to illustrate the dynamics and processes that drive this field rather than formulating a meta-theory of investment arbitration. This piece bears no normative presumption. Instead of taking a pro-investor or pro-state angle, this paper’s objective and granular presentation of the various approaches to the FET provides a basis from which to assess criticism, both old and new, of its development. In addition to contributing to the FET literature, this paper aims to advance the substantially smaller body of work on precedent in investment arbitration. Currently, the vast majority of pieces have been written by insiders, mostly prominent arbitrators noting the use of precedent by tribunals. E.g., Guillaume, supra note 4; Gabrielle Kaufmann-Kohler, Arbitral Precedent: Dream, Necessity or Excuse?: The 2006 Freshfields Lecture, 23 Arb. Int’l 357 (2006). Only a few pieces have begun to theorize about precedent in any general way, E.g., Cheng, supra note 7; W. Mark C. Weidemaier, Toward a Theory of Precedent in Arbitration, 51 Wm. & Mary L. Rev. 1895 (2010). and almost none has anchored the discussion in a systematic study of the case law. This paper roots all of its insights on precedential development in a quantitative and qualitative analysis of FET cases. Unlike prior empirical studies, it digs into the actual language of awards to show precisely how arbitrators are dealing with precedent, whether they are ignoring, following, or distinguishing prior cases. From this analysis, we hope to flesh out the beginnings of a theory of precedent unique to investment arbitration and not as a diluted form of the stare decisis that governs common law systems. Our piece differs from existing work in both substance and methodology. This research is based on an exhaustive review of all published investment awards that have set out an interpretation of the FET standard. More specifically, the analysis focuses on three cases that have emerged as guidelines and arguably as “precedent” for the interpretation of FET: Tecmed v. Mexico (2003), Waste Management v. Mexico (2004) and Occidental v. Ecuador (2004). After reviewing the FET case law, we selected these three cases for their authoritative value, which stems from both their distinctive and fully formed interpretations of FET and their outsized influence on and frequent use by later tribunals. Among the most cited awards in all of investment arbitration, these three cases have become focal points in the on-going effort to define investor protections in foreign investment law and were deemed by at least one high-profile arbitrator to be “authoritative precedents.” Int’l Thunderbird Gaming Corp. v. United Mexican States, UNCITRAL/NAFTA Case, Arbitral Award, ¶¶ 30-31 (Jan. 26, 2006) (separate opinion from Thomas Wälde).. By focusing on the three most important cases, we are able to trace different lines of case law and explore how ad hoc, decentralized tribunals can, contrary to popular belief, coalesce around certain interpretations and how those approaches converge or diverge from others. Each of these cases represents a different take on the FET. The Tecmed tribunal adopted a subjective interpretation in which fair and equitable treatment is measured against the “basic expectations” held by the investor when making its investment. By contrast, the Waste Management tribunal championed an objective interpretation enumerating state actions that amount to a breach of FET, such as conduct that is “arbitrary, grossly unfair, unjust or idiosyncratic, is discriminatory and exposes the claimant to sectional or racial prejudice, or involves a lack of due process […].” Occupying a middle ground between Tecmed and Waste Management, the Occidental tribunal takes the “stability of the legal and business framework” as the key factor to fair and equitable treatment. Rarely has the extensive FET literature broken down the analysis based on duelling readings of the same language. We thus provide a more comprehensive look at this critical provision. This study relies on a rigorous review of all citations to the Tecmed, Waste Management, and Occidental awards to date. We have not included citations to prior cases in decisions from ICSID annulment committees. However, some ad hoc decisions are discussed below in order to contextualize certain lines of interpretation. Citations were counted only if they were sufficiently explicit, i.e., when the tribunal referred to one of these cases by name no matter whether the arbitrators agreed or disagreed with the prior interpretation. Citations to cases in footnotes have also been counted. Citations that were either made implicitly in the tribunal’s reasoning or set out solely in the parties’ positions have been disregarded. To complement the empirical analysis, we have conducted a few micro case studies delving into the language of awards, focusing particularly on how arbitrators are analogizing to and distinguishing from earlier cases. One of our research questions is whether individual arbitrators or the merits of particular interpretations are driving citation rates. To explore that issue, we try to highlight when the reasoning and reliance on prior interpretations relate to the backgrounds and predispositions of particular arbitrators, noting the relationship between citations and reappointment of the same arbitrators in later cases. Based on the in-depth exploration of FET case law, our argument is three-fold. We first show how the high number of citations made to these three landmark cases demonstrates, despite all shudders and protests, the emergence of precedent in an ad hoc, decentralized system that never boasted a norm of stare decisis. These dynamics of precedent are neither simple nor linear: they reflect complex evolutions based on competing narratives of the FET. By illustrating the formation of precedent within one body of case law in all its complexity, this picture captures the development of a system of common law unique to investment arbitration. We then analyse how tribunals have treated competing interpretations, particularly their attempts to reconcile different approaches into an overarching interpretation and offer new focal points in the ongoing debate over the FET. Finally, we will note a surprising and fascinating recent phenomenon in investment arbitration: the latest generation of investment treaties have begun to incorporate and codify the dominant interpretations of the FET from key arbitral awards. This latest step of codification is sure to change the dynamics of interpretation and use of precedent by arbitral tribunals going forward, creating a continuous feedback loop between arbitrators and treaty drafters. Three Tales of FET Our study of the FET is based on three decisions – all rendered within a fourteen-month period. These decisions have adopted three different perspectives on the FET: Tecmed espoused a subjective standard based on investor expectations as the baseline against which state actions are to be assessed; Waste Management adopted an objective interpretation of the FET by enumerating specific state actions that constitute FET breaches; finally, Occidental sought to “objectivize” Tecmed’s subjective interpretation by tying it to the “stability of the legal and business framework” offered by the state. On the basis of the data presented in the appendix, we will analyse how each of these decisions has been, to varying extents, cited and discussed by subsequent tribunals. Tecmed v. Mexico (2003) The case of Tecmed v. Mexico arose out of an investment made by a Spanish company through local affiliates Tecmed had in fact structured its investment through two local affiliates: Tecnicas Mediambientales de Mexico, S.A. de C.V. and Cytrar, S.A. de C.V. Tecnicas Medioambientales Tecmed S.A. v. Mexico, ICSID Case No. ARB(AF)/00/2, Award, ¶ 4 (May 29, 2003). for the operation of a waste landfill in Mexico. The dispute between Tecmed, a Spanish company, and the Mexican government was prompted by a resolution from the Mexican environmental protection agency rejecting the application for renewal of an authorization to operate the landfill. Tecmed argued that the cancellation of the authorization breached the bilateral investment treaty between Spain and Mexico, international law, and Mexican law. Specifically, Tecmed argued inter alia that Mexico’s actions breached Article 4(1) of BIT, which provided that “[e]ach Contracting Party will guarantee in its territory fair and equitable treatment, according to International Law, for the investments made by investors of the other Contracting Party.” Before assessing Tecmed’s FET claim, the tribunal formulated its interpretation of this standard in broad terms. The fact that the tribunal wrestled with the amorphous language before dealing with the facts speaks to the need for reasoning and justification even in ad hoc dispute resolution. The attempt to define the standard generally is what gives rise to the possibility of precedent. The tribunal emphasized that the “scope of the undertaking of fair and equitable treatment under Article 4(1) of the Agreement […] is that resulting from an autonomous interpretation,” Id. ¶ 155. thus implying that this interpretation was specific to the treaty in question. Despite this caveat, as we will see further below, the interpretation adopted by the Tecmed tribunal has shaped subsequent tribunals’ views of the FET. The Tecmed tribunal anchored the FET standard on investor expectations: a treatment is fair and equitable when it “does not affect the basic expectations that were taken into account by the foreign investor to make the investment.” Id. ¶ 154. The tribunal specified the nature of these expectations as follows: [t]he foreign investor expects the host state to act in a consistent manner, free from ambiguity and totally transparently in its relations with the foreign investor, so that it may know beforehand any and all rules and regulations that will govern its investments, as well as the goals of the relevant policies and administrative practices and directives, to be able to plan its investment and comply with such regulations. Id. The Tecmed tribunal therefore defined fair and equitable treatment in a subjective way: the determination of whether State actions are “fair and equitable” ultimately depends on the expectations of the investors at the time of their investment. Of course, these expectations can stem from objective elements such as the regulatory framework at the time of the investment and the policy goals underlying the regulatory framework: an investor would expect “the State to use the legal instruments that govern the actions of the investor or the investment in conformity with the function usually assigned to such instruments […].” Id. But the notion of “expectations” is flexible and open-ended so as to accommodate subjective considerations. By contrast, the Waste Management tribunal sought to determine objectively the type of state measures that breach fair and equitable treatment without regard to the expectations of investors. Waste Management v. Mexico (2004) The case of Waste Management v. Mexico arose out of a concession agreement entered into between Acaverde, a wholly-owned subsidiary of Waste Management (a Delaware corporation) and the City of Acapulco. Under this agreement, Acaverde undertook to “provide on an exclusive basis certain municipal waste disposal and street cleaning services in a specified area of Acapulco.” Waste Mgmt, Inc. v. United Mexican States, ICSID/NAFTA Case No. ARB(AF)/00/3), Award, ¶ 41 (Apr. 30, 2004). Shortly after the execution of the concession agreement, Acaverde faced numerous difficulties such as resistance from local groups that benefited from or provided competing services as well as non-payment of invoices by the City of Acapulco, which eventually led to the withdrawal of Acaverde from Acapulco. Id. ¶¶ 40-72. After Acaverde initiated proceedings in different fora, Acaverde initiated proceedings before the Mexican federal courts and before an arbitral tribunal. See id. ¶ 70. Waste Management brought NAFTA proceedings before an arbitral tribunal, which dismissed its claims. The first NAFTA tribunal dismissed Waste Management’s claims on the basis that it had not validly waived its right to initiate or continue before any tribunal or court proceedings with respect to the State measures that are the object of the NAFTA claims. See Waste Mgmt, Inc. v. United Mexican States, ICSID/NAFTA Case No. ARB(AF)/98/2), Award, (June 2, 2000). Waste Management then brought new NAFTA proceedings before a second arbitral tribunal, arguing that Mexico had breached its obligations under Articles 1105 and 1110 of NAFTA. Article 1105(1) of NAFTA provides that “[e]ach Party shall accord to investments of investors of another Party treatment in accordance with international law, including fair and equitable treatment and full protection and security.” When assessing Waste Management’s FET claim, the arbitral tribunal analysed Article 1105(1) in light of a prior interpretation of the Free Trade Commission The NAFTA Free Trade Commission issued the following binding interpretation of Article 1105(1) on July 21, 2001: “Article 1105(1) prescribes the customary international law minimum standard of treatment of aliens as the minimum standard of treatment to be afforded to investments of investors of another Party. The concepts of ‘fair and equitable treatment’ and ‘full protection and security’ do not require treatment in addition to or beyond that which is required by the customary international law minimum standard of treatment of aliens. A determination that there has been a breach of another provision of the NAFTA, or of a separate international agreement, does not establish that there has been a breach of Article 1105(1).” and NAFTA awards. Waste Mgmt, Inc. v. United Mexican States, ICSID/NAFTA Case No. ARB(AF)/00/3), Award, ¶ 91-98 (Apr. 30, 2004). The arbitral tribunal noted that “despite certain differences of emphasis [in different cases] a general standard for Article 1105 is emerging.” Id. ¶ 98. Such an attempt to survey and synthesize the existing case law is characteristic of a common law system but rather unexpected of ad hoc tribunals. In its review of arbitral case law, the Waste Management tribunal limited itself to NAFTA awards and did not refer, at least explicitly, to the Tecmed award. The Waste Management tribunal’s awareness of the diverging strands of NAFTA and non-NAFTA case law is again to be expected of judges bound by precedent and surprising for arbitrators free to start their reasoning from scratch. The tribunal’s reference to the “representations” made by the state to the investor—which would be the basis for the investor’s expectations—may have been a subtle indication of its consideration of and effort to distinguish the interpretation laid out in Tecmed v. Mexico. The Waste Management tribunal laid out the following interpretation of Article 1105(1): […] the minimum standard of treatment of fair and equitable treatment is infringed by conduct attributable to the State and harmful to the claimant if the conduct is arbitrary, grossly unfair, unjust or idiosyncratic, is discriminatory and exposes the claimant to sectional or racial prejudice, or involves a lack of due process leading to an outcome which offends judicial propriety – as might be the case with a manifest failure of natural justice in judicial proceedings or a complete lack of transparency and candour in an administrative process. In applying this standard it is relevant that the treatment is in breach of representations made by the host State which were reasonably relied on by the claimant. Id. The first sentence of the above paragraph reflects an objective interpretation of the FET standard, influenced by the traditional public international law reading of the FET. See L.F.H. Neer v. United Mexican States, U.S.-Mexico General Claims Commission, Award, (Oct. 15, 1926). However, inferring from the second sentence discussing representations made by the state and the investor’s reasonable reliance, the tribunal might have felt compelled to respond to the Tecmed tribunal’s highly influential subjective approach to the FET, though the Waste Management tribunal declined to name the case explicitly. On balance, the above interpretation leans more heavily towards an objective reading of the FET: the tribunal sets out specific state actions that constitute FET breaches and places only a secondary focus on the “representations” made by the host state. By contrast, in Tecmed, the primary focus was on the investor’s expectations, based in large part on representations made by the host state. These two divergent approaches to the FET reveal contrasting value judgments in foreign investment law: the Tecmed approach is mainly seen as favouring investors, while Waste Management appears to protect the states. The identities of the arbitrators may also have played a role: the president of the Tecmed tribunal (Horacio A. Grigera Naon) is a leading practitioner of international commercial arbitration, Among other functions, Horacio Grigera Naon was the Secretary General of the ICC International Court of Arbitration from 1996 until 2001. while the president of the Waste Management tribunal (James Crawford) is a leading practitioner of public international law. James Crawford is currently a judge at the International Court of Justice, after teaching international law at Cambridge University for twenty-two years. In the wake of the rift created by these two awards, other tribunals have tried to reconcile the subjective and objective approaches by “objectivizing” the subjective approach promoted in Tecmed. Occidental v. Ecuador presents one example of the attempt at reconciliation. See also the discussion in LESI S.p.A. et Astaldi S.p.A. c. Algérie, ICSID Case No. ARB/05/3, Award, ¶ 151 (Nov. 12, 2008). Occidental v. Ecuador (2004) Occidental, a U.S. company, entered into a contract with PetroEcuador, an Ecuadorian State enterprise, for the exploration and exploitation of hydrocarbons in Block 15 of the Amazon. The dispute between Occidental and Ecuador arose out of the refusal of the Ecuadorian tax administration to reimburse the value-added tax (VAT) on the importation and local acquisition of goods and services used for the performance of the contract. The Ecuadorian administration argued that the VAT reimbursements had been already accounted for in a participation formula set out in the contract. Occidental disagreed and argued, inter alia, that Ecuador had breached Article II(3)(a) of the BIT between the US and Ecuador by “revoking preexisting decisions that were legitimately relied upon by the investor to assume its commitments and plan its commercial and business activities […]”. Occidental Exploration and Prod. Co. v. Ecuador, UNCITRAL/LCIA Case No. UN 3467, Award, ¶ 181 (July 1, 2004). Article II(3)(a) provides that: “[i]nvestment shall at all times be accorded fair and equitable treatment, shall enjoy full protection and security and shall in no case be accorded treatment less favourable than that required by international law.” In its discussion of the FET standard, the Occidental tribunal followed the interpretation laid out in Tecmed Id. ¶ 185. but re-framed its definition of fair and equitable treatment in terms of “stability” of the legal framework of the host state (rather than in terms of investor expectations). For instance, the Occidental tribunal referred twice to the requirement of “stability and predictability” of the “legal and business framework” for the investment under international law, Id. ¶¶ 190, 191. to the “obligation not to alter the legal and business environment in which the investment has been made”, Id. ¶. 191. and to the duty to ensure “both the stability and predictability of the governing legal framework.” Id. ¶ 192. The Occidental decision thus re-interprets the Tecmed standard objectively, by linking the investors’ expectations to the stability and predictability of the framework underlying the investment. As such, the Occidental decision can be seen as an attempt to find middle ground between an objective approach to the FET as exemplified in Waste Management and a subjective approach as showcased in Tecmed. Tecmed, Waste Management, and Occidental can therefore be placed on a continuum from “subjective” to “objective”. This continuum also represents varying ideological values concerning the balance between investor protection and the states’ freedom to regulate: the subjective approach (favored by commercial lawyers) prioritizes the protection of investors, while the objective approach (championed by public international lawyers) stresses the state’s freedom to regulate. These three tales of the FET—objective, subjective, and a compromise—represent three points on the continuum that have polarized the debates on the FET. Three tales of FET LEGAL INTERPRETATION Subjective Objective Tecmed Occidental v. Ecuador Waste Management Protection of investors State’s freedom to regulate IDEOLOGICAL VALUES Dynamics of Precedent The three strands of interpretation have helped structure the debates on FET before arbitral tribunals. Some tribunals have tried to compete with earlier interpretations by rejecting or synthesizing them. The polarizing effect of the Tecmed, Waste Management, and Occidental awards among arbitrators becomes apparent when reviewing the references made to these awards in subsequent cases. The patterns of citation to these three influential awards illustrate the “fragmentary and gradual development” of the FET standard, as pointed out by the Enron Enron Co. Pondesora Assets, L.P. v. Argentina, ICSID Case No. ARB/01/3, Award, ¶ 257 (May 22, 2007). and Sempra Sempra Energy International v. Argentina, ICSID Case No. ARB/02/16, Award, ¶ 297 (Sept. 28, 2007). tribunals, which in many ways exemplifies the emergence of arbitrator-made law within investment arbitration. Because this development is “fragmentary,” however, these awards do not exhaust the possible interpretations of the FET. In fact, other precedents have emerged and vied for influence, either by rejecting outright one of the three dominant interpretations or by merging multiple definitions into an overarching understanding of FET. These non-linear, complex dynamics give insight into how control and order can arise organically from within what should be a chaotic system. Three strands of case law Tecmed is undoubtedly the landmark FET case as it has prompted other tribunals, including the Waste Management and Occidental tribunals, to position themselves vis-à-vis Tecmed’s interpretation of FET. In other words, other tribunals feel compelled to align or distance themselves from Tecmed, whether implicitly or explicitly. As the first attempt to comprehensively define the FET, Tecmed is a particularly powerful focal point, a status that is borne out in the citation rate to Tecmed in subsequent awards. According to our data, in the years after Tecmed was decided, it was unquestionably the dominant reference for the FET: before 2010, twenty-one out of thirty-seven tribunals interpreting the FET cited Tecmed. Adding the cases after 2010 shows that Tecmed’s influence may have waned somewhat but remains significant: it has been cited by thirty-six of the 114 tribunals that have analysed the FET standard to date. Waste Management, a NAFTA case, represents a competing authority on the FET standard. Looking at citation counts alone, Waste Management seems less influential than Tecmed as it was cited by twenty tribunals. Occidental, the compromise between the subjective and objective approaches, drew citations from nine tribunals. While one may have expected this middle way to have attracted supporters from both the Tecmed and Waste Management camps, it in fact seems to be the least influential of the three. (Note that the three awards were rendered at around the same time, one in 2003 and two in 2004, so they have all had about the same amount of time to garner citations). Beyond looking at the raw citation rates, it is useful to isolate the role of arbitrator identity and repeat appointments. In a system of precedent driven predominantly or even solely by those two factors, the vast majority of citations would come from arbitrators citing their own prior interpretations. That would nonetheless represent a system of precedent and indeed one unique to the institutional structure of dispute resolution by ad hoc panels. Alternatively, it also seems relevant to explore to what extent arbitrators are citing others’ interpretations, presumably convinced by the strength of the reasoning or the ideological values embodied in the rationale. As an initial observation, one of the nine cases citing to Occidental is Enron v. Argentina, whose tribunal was headed by the same president as in Occidental (Francisco Orrego Vicuna). The language in the two awards are remarkably similar, both emphasizing that “a key element of fair and equitable treatment is the requirement of a ‘stable framework for the investment.’” Enron, ICSID Case No. ARB/01/3, ¶ 260. Similarly, the Sempra v. Argentina tribunal (also presided by Francisco Orrego Vicuna) referred to the “legal and business framework under which the investment [i]s decided and implemented” as well as “business certainty and stability.” Sempra, ICSID Case No. ARB/02/16, ¶ 303. The identity of arbitrators, which is compounded by repeated appointment, See Daphna Kapeliuk, The Repeat Appointment Factor – Exploring Decision Patterns of Elite Investment Arbitrators, 96 Cornell L. Rev. 47 (2010). seems to have been key to the continued influence of Occidental. Beyond looking at citation numbers and arbitrator identities, what has been sorely missing from the empirical literature on precedent in investment arbitration is detailed qualitative analysis of the weight and authority given to prior interpretations. Tribunals do not always cite prior cases to adopt the interpretations therein. For instance, Tecmed, the most cited case on FET, has occasionally raised controversy. In MTD v. Chile, the tribunal cited Tecmed in support of its interpretation of FET. MTD Equity Sdn. Bhd. et al. v. Republic of Chile, ICSID Case No. ARB/01/7, Award, ¶ 114 (May 25, 2004). Chile subsequently brought proceedings for the annulment of the award, where it argued that the arbitral tribunal manifestly exceeded its powers (one of the annulment grounds under Article 52 of the Washington Convention) by relying on the interpretation of FET contained from Tecmed (which Chile called, with irony, the “TecMed programme for good governance”). MTD Equity Sdn. Bhd. et al. v. Republic of Chile, ICSID Case No. ARB/01/7, ¶ 66, Decision on Annulment (Mar. 21, 2007). In particular, Chile contrasted the Tecmed approach with the Waste Management approach. Id.. Put differently, Chile did not seek reversal of the award on the basis that the tribunal relied on precedent in the absence of stare decisis but that the tribunal invoked the wrong precedent—an argument that presupposes at least to some extent the legitimacy of adopting prior interpretations. In a system without a formal vertical hierarchy among various tribunals, Waste Management holds just as much precedential weight as Tecmed, so Chile was perfectly within its right to lobby for the more favourable precedent. The annulment committee was composed of prominent public international lawyers, with a former President of the ICJ (Gilbert Guillaume) as President and the former President of the Waste Management tribunal (James Crawford) as co-member. The committee first expressed its disagreement with the Tecmed standard: […] the TECMED Tribunal’s apparent reliance on the foreign investor’s expectations as the source of the host State’s obligations (such as the obligation to compensate for expropriation) is questionable. The obligations of the host State towards foreign investors derive from the terms of the applicable investment treaty and not from any set of expectations investors may have or claim to have. A tribunal which sought to generate from such expectations as set of rights different from those contained in or enforceable under the BIT might well exceed its powers, and if the difference were material might do so manifestly. Id. at 67. However, the annulment committee rejected Chile’s argument, in part because the MTD tribunal quoted Tecmed “in support of this standard [of FET as discussed by the MTD tribunal], not in substitution for it.” Id. ¶ 70. This reason implies that an ICSID tribunal does not manifestly exceed its powers when it relies on a prior case if it uses that case in support of its own reasoning and decision, and not as a substitute for its own determination. The committee also commended the MTD tribunal for defining FET as “treatment in an even-handed and just manner,” Id. ¶ 71. and for taking an objective approach similar to the one adopted in Waste Management. Again, the predispositions of public international lawyers seem to have weighed towards the right side of the continuum drawn above (i.e., towards an objective approach favouring the state’s freedom to regulate). In addition, the invisible chain of precedent seems to be linked to arbitrator identity, as one of the committee members in MTD v. Chile also presided over the tribunal in Waste Management v. Mexico. Yet the MTD v. Chile story yields an even broader and more exciting insight: the annulment committee, the only institution situated above the decentralized ad hoc tribunals, began to create norms of precedent in two ways. First, it announced a kind of meta-norm of how tribunals should treat prior interpretations—they can only supplement but not supplant the tribunal’s own rationale. Such a norm should force arbitrators to reflect on the merits of various precedents and justify their adoption or rejection of previous interpretations. Second, the committee elevated the precedential status of MTD v. Chile’s interpretation of the FET by praising its logic. It therefore appears that annulment committees can serve to organize and discipline the development of precedent, making the annulment decisions focal points in and of themselves. New contenders Just as important as the awards approving prior interpretations are those that distinguish them. Some tribunals have tried to reject the dominant interpretation of the FET in Tecmed. For instance, in Glamis Gold v. USA, a NAFTA case, the tribunal tried to cabin the Tecmed interpretation by emphasizing its specific character. The tribunal denied the existence of precedent in international arbitration, Glamis Gold, Ltd. v. USA, NAFTA/UNCITRAL Case, Award, ¶ 8 (June 8, 2009). while pointing out that it had a duty to “communicate its reasons for departing from major trends present in previous decisions.” Id. That language captures the intriguing paradox of denying the power of arbitral precedent: if precedent holds no weight because no tribunal is bound by any other, why do arbitrators feel the need to distinguish prior interpretations in the first place? The denial itself rather confirms the creeping influence of prior decisions. The Glamis Gold tribunal specified that its approach was “partially apparent in this Award’s evidentiary approach to the requirement of fair and equitable treatment under Article 1105.” Id. As a matter of fact, the tribunal denied that Tecmed had any relevance to the matter before it: Looking, for instance, to Claimant’s reliance on Tecmed v. Mexico for various of its arguments, the Tribunal finds that Claimant has not proven that this award, based on a BIT between Spain and Mexico, defines anything other than an autonomous standard and thus an award from which this Tribunal will not find guidance. Id. ¶ 610. The tribunal’s efforts to insulate Tecmed have not stopped many other tribunals from seeking guidance from Tecmed’s reasoning on FET and citing the award accordingly. That trend in and of itself is interesting: at this point, no tribunal’s view on precedential authority appears to influence any other’s; each panel of arbitrators is free to craft an approach to precedent applicable to that dispute and that dispute only. This kind of ad hoc approach to precedent lies somewhere between the rigid stare decisis of common law systems and a completely decentralized scheme where each case is an island onto itself with no ties to earlier cases. Again, we see arbitrators, consciously or unconsciously, developing and using precedent in a way that conforms to the institutional design of investment arbitration. Instead of directly rejecting a prior interpretation, other tribunals prefer to synthesize the three strands of case law and reconcile their interpretations. The tribunal in Saluka v. Czech Republic has even succeeded in laying out a fourth strand of interpretation based on a mix of subjective and objective considerations. It should first be noted that the president in Saluka, a prominent public international lawyer (Arthur Watts), also served as Chile’s legal expert in the MTD v. Chile annulment proceedings in which he harshly criticized the Tecmed interpretation. MTD Equity Sdn. Bhd. et al. v. Republic of Chile, ICSID Case No. ARB/01/7, ¶ 66, Decision on Annulment (Mar. 21, 2007) (“The TECMED dictum is also subject to strenuous criticism from the Respondent’s experts, Mr. Jan Paulsson and Sir Arthur Watts. They note, inter alia, the difference between the TECMED standard and that adopted in other cases, including one the Tribunal also cited in a footnote but without comment [Waste Management].”). Again, public international lawyers appear to fall on the right side of the continuum drawn above. In Saluka, the tribunal discussed the subjective approach, and cautiously recognized its potential relevance while emphasizing its limits. For instance, relying on the Tecmed award, the Saluka tribunal held that: The standard of ‘fair and equitable treatment’ is therefore closely tied to the notion of legitimate expectations which is the dominant element of that standard. By virtue of the ‘fair and equitable treatment’ standard included in Article 3.1 the Czech Republic must therefore be regarded as having assumed an obligation to treat foreign investors so as to avoid the frustration of investors’ legitimate and reasonable expectations. Saluka Investments BV v. Czech Republic, UNCITRAL/PCA Case, Partial Award ¶ 302 (March 17, 2006). […] This Tribunal observe, however, that while it subscribes to the general thrust of these and similar statements, it may be that, if their terms were to be taken too literally, they would impose upon host States’ obligations which would be inappropriate and unrealistic. Moreover, the scope of the Treaty’s protection of foreign investment against unfair and inequitable treatment cannot exclusively be determined by foreign investors’ subjective motivations and considerations. Id. ¶ 304. The Saluka tribunal then proceeded to re-balance the “subjective” approach with “objective” considerations, invoking both perspectives: A foreign investment protected by the Treaty may in any case properly expect that the Czech Republic implements its policies bona fide by conduct that is, as far as it affects the investors’ investment, reasonably justifiable by public policies and that such conduct does not manifestly violate the requirements of consistency, transparency, even handedness and non-discrimination. […] Finally, it transpires from arbitral practice that, according to the ‘fair and equitable treatment’ standard, the host State must never disregard the principles of procedural propriety and due process and must grant the investor freedom from coercion or harassment by its own regulatory authorities. Id. ¶¶ 307, 308. The Saluka interpretation of FET has met with great success: a non-exhaustive review of investment awards shows that it has been cited in at least eleven subsequent cases. Spyridon Roussalis v. Romania, para. 447; Toto v. Lebanon, para. 153 ; Ulysseas v. Ecuador, para. 249; Unglaube v. Costa Rica, para. 245; Arif v. Moldova, paras. 532, 537; Micula v. Romania, paras. 507, 533; Gold Reserve v. Venezuela, para. 569 ; Lahoud v. Congo, para. 442 ; Tulip v. Turkey, para. 401; Madimoil v. Albania, paras. 604, 609, 614, 619; Suez v. Argentina, paras. 196, 204. It has the potential to become a new focal point in the FET case law. Saluka also raises fascinating questions about the dynamics and timing of precedential development: how and when do arbitrators decide to synthesize disparate strands of case law and why do they feel justified in doing so? Again, since no ad hoc tribunal has authority over any other, competing interpretations could theoretically run parallel to each other indefinitely, causing dissonance within the case law. The fact that the Saluka tribunal reconciled their divergence into a new interpretation that then gained influence should take those sceptical of investment arbitration by surprise. This dynamic shows that a decentralized, horizontal system of tribunals can organize its own precedent without any norms of stare decisis, vertical or temporal precedence, or formal appellate review, all of which anchor common law systems of precedent. From these developments we can begin to theorize about a self-governing regime of precedent adapted to the idiosyncracies of investment arbitration. Dynamics of Codification Finally, perhaps the most surprising trend of all is the possible codification of existing interpretations of the FET, as discussed in recent negotiations of major investment treaties. In common law systems, it is not uncommon for the legislature to codify interpretations of a particular statute in subsequent revisions. In the case of a vaguely worded statute, the legislature likely intended for the courts to fill in the meaning based on varying circumstances. As the courts flesh out the statute through application to particular cases, the legislature may correct the courts’ approach or even reject certain interpretations by amending the statutory language. This back-and-forth between legislature and court and between statutory law and judicial interpretation is part of an on-going dialogue. Could the same dynamic arise in investment arbitration? The FET is very much like a broadly worded statutory provision. The analogue for the legislature would be the drafters of treaties governing foreign investment. The counterpart to the judicial system would be the ad hoc arbitral tribunals and possibly the annulment committees. This analogy is more than theoretical. Article X.X of the Comprehensive Economic and Trade Agreement (CETA), the trade and investment agreement signed between the EU and Canada, which is also the basis for negotiations of the Transatlantic Trade and Partnership Agreement (TTIP), reads as follows: Article X.X.: Treatment of Investors and of Covered Investments Each Party shall accord in its territory to covered investments of the other Party and to investors with respect to their covered investments fair and equitable treatment and full protection and security in accordance with paragraphs 2 to 7. A Party breaches the obligation of fair and equitable treatment referenced in paragraph 1 where a measure or series of measures constitutes: Denial of justice in criminal, civil or administrative proceedings; Fundamental breach of due process, including a fundamental breach of transparency, in judicial and administrative proceedings; Manifest arbitrariness; Targeted discrimination on manifestly wrongful grounds, such as gender, race or religious belief; Abusive treatment of investors, such as coercion, duress and harassment; or A breach of any further elements of the fair and equitable treatment obligation adopted by the Parties in accordance with paragraph 3 of this Article. The Parties shall regularly, or upon request of a Party, review the content of the obligation to provide fair and equitable treatment. When applying the above fair and equitable obligation, a tribunal may take into account whether a Party made a specific representation to an investor to induce a covered investment that created a legitimate expectation, and upon which the investor relied in deciding to make or maintain the covered investment, but that the Party subsequently frustrated. […] The approach adopted in Article X.X of the CETA resembles the Saluka tribunal’s rebalancing of the FET in that it combines objective and subjective interpretations. Indeed, Article X.X.3 of CETA clearly refers to the first strand of interpretation inspired by the Tecmed award. In this provision, the FET standard is framed in terms of “representations” from the State that create “legitimate expectations” for the investor. In addition, Article X.X.2 of CETA codifies the second strand of interpretation stemming from the Waste Management award. That provision lists a series of state actions amounting to breaches of the FET standard, which are analogous to those listed in Waste Management: “manifest failure of natural justice,” “lack of due process,” “arbitrary” or “discriminatory” conduct. Waste Mgmt., Inc. v. United Mexican States, ICSID/NAFTA Case No. ARB(AF)/00/3), Award, ¶ 98 (Apr. 30, 2004). The similarities are too apparent to be mere coincidences. If treaty drafters are indeed incorporating existing interpretations from arbitral tribunals into new FET provisions, many new questions come naturally to mind. What are the drafters aiming to do—adopt interpretations wholesale, use them for guidance, or even correct the pro-investor or pro-state biases they see in the case law? How are drafters selecting the interpretations worthy of codification? How does codification then feed back into the exercise of interpretation? Note how much more detailed the CETA FET language is compared to the bare-bones amorphous standards found in most earlier BITs. The more specific the language, the less leeway arbitrators have to say what the FET means. That textual specificity may be a sign that drafters are reining in the discretion originally delegated to arbitral tribunals. In turn, will tribunals have less need to interpret the FET from scratch and to refer to earlier attempts by other tribunals? Ironically, the feedback loop between codification and interpretation may in fact reduce the need to reach for precedent. As tribunals begin to decide future cases under this new generation of BITs, these questions will become ripe for further exploration.  Appendix Citations to the Tecmed, Waste Management and Occidental interpretations of FET in subsequent investment awards Tecmed v. Mexico Waste Management v. Mexico Occidental v. Ecuador Occidental Exploration and Production Company v. Ecuador (UNCITRAL/LCIA Case), Award of July 1, 2004 (para. 185) CMS Gas Transmission Company v. Argentina (ICSID Case No. ARB/01/8), Award of May 12, 2005 (para. 279) MTD Equity Sdn. Bhd. and MTD Chile S.A. v. Chile (ICSID Case No. ARB/01/7), Award of May 25, 2005 (para. 114) Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v. Pakistan (ICSID Case No. ARB/03/29), Decision on Jurisdiction dated November 14, 2005 (paras. 237, 240) Saluka Investments BV v. Czech Republic (UNCITRAL/PCA Case), Partial Award dated March 17, 2006 (para. 302) Azurix Corp. v. Argentina (ICSID Case No. ARB/01/12), Award of July 14, 2006 (para. 371) LG&E Energy Corp. et al. v. Argentina (ICSID Case No. ARB/02/1), Decision on Liability dated October 3, 2006 (para. 127) PSEG Global Inc. et al v. Turkey (ICSID Case No. ARB/02/5), Award of January 19, 2007 (para. 240) Siemens A.G. v. Argentina (ICSID Case No. ARB/02/8), Award of February 6, 2007 (paras. 298-9) Enron Corporation Pondesora Assets, L.P. v. Argentina (ICSID Case No. ARB/01/3), Award of May 22, 2007 (paras. 257, 262) Sempra Energy International v. Argentina (ICSID Case No. ARB/02/16), Award dated September 28, 2007 (para. 297) Metalpar S.A. and Buen Aires S.A. v. Argentina (ICSID Case No. ARB/03/5), Award dated June 6, 2008 (paras. 182, 184) Biwater Gauff (Tanzania) Ltd. v. Tanzania (ICSID Case No. ARB/05/22), Award dated July 24, 2008 (paras. 528, 600) Duke Energy Electroquil Partners et al. v. Ecuador (ICSID Case No. ARB/04/19), Award dated August 18, 2008 (para. 339) Plama Consortium Limited v. Bulgaria (ICSID Case No. ARB/03/24), Award dated August 27, 2008 (para. 176) National Grid P.L.C. v. Argentina (UNCITRAL Case), Award dated November 3, 2008 (para. 173) Jan de Nul N.V. and Dredging International N.V. v. Egypt (ICSID Case No. ARB/04/13), Award dated November 6, 2008 (para. 186) LESI S.p.A. et Astaldi S.p.A. c. Algérie (ICSID Case No. ARB/05/3), Award dated November 12, 2008 (para. 151) Waguih Elie George Siag and Clorinda Vecchi v. Egypt (ICSID Case No. ARB/05/15), Award dated June 1, 2009 (para. 450) Glamis Gold, Ltd. v. USA (NAFTA/UNCITRAL Case), Award dated June 8, 2009 (para. 610) Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v. Pakistan (ICSID Case No. ARB/03/29), Award dated August 27, 2009 (para. 179) Ioannis Kardassopoulos and Ron Fuchs v. Georgia (ICSID Cases No. ARB/05/18 and ARB/07/15), Award dated March 3, 2010 (para. 440) AES Summit Generation Limited et al. v. Hungary (ICSID Case No. ARB/07/22), Award dated September 23, 2010 (paras. 9-3-8, 9-3-40) Alpha Projektholding GMBH v. Ukraine (ICSID Case No. ARB/07/16), Award dated November 8, 2010 (para. 420) Frontier Petroleum Services Ltd. v. Czech Republic (UNCITRAL Case), Award dated November 12, 2010 (paras. 286-287) Binder v. Czech Republic (ad hoc), Award dated July 15, 2011 (para. 446) El Paso Energy International Company v. Argentina (ICSID Case No. ARB/03/15), Award dated October 31, 2011 (paras. 341-342) White Industries Australia Limited v. India (UNCITRAL Case), Award dated November 30, 2011 (paras. 10.3.5-10.3.6) Spyridon Roussalis v. Romania (ICSID Case No. ARB/06/1), Award dated December 7, 2011 (para. 316) Oostergetel v. Slovak Republic (UNCITRAL Case), Award dated April 23, 2012 (para. 222) Marion Unglaube and Reinhard Unglaube v. Costa Rica (ICSID Cases No. ARB/08/1 and ARB/09/20), Award dated May 16, 2012 (para. 249) Toto Costruzioni Generali S.P.A. v. Lebanon (ICSID Case No. ARB/07/12), Award dated June 7, 2012 (para. 152) Franck Charles Arif v. Moldova (ICSID Case No. ARB/11/23), Award dated April 8, 2013 (para. 538) Ioan Micula et al. v. Romania (ICSID Case No. ARB/05/20), Award dated December 11, 2013 (paras. 532, 534) Gold Reserve Inc. v. Venezuela (ICSID Case No. ARB(AF)/09/1), Award dated September 22, 2014 (para. 572) Antoine Abou Lahoud et al. v. Congo (ICSID Case No. ARB/10/4), Award dated February 7, 2014 (para. 440) Saluka Investments BV v. Czech Republic (UNCITRAL/PCA Case), Partial Award dated March 17, 2006 (para. 302) Azurix Corp. v. Argentina (ICSID Case No. ARB/01/12), Award of July 14, 2006 (para. 370) LG&E Energy Corp. et al. v. Argentina (ICSID Case No. ARB/02/1), Decision on Liability dated October 3, 2006 (para. 128) Siemens A.G. v. Argentina (ICSID Case No. ARB/02/8), Award of February 6, 2007 (paras. 297, 299) BG Group Plc. v. Argentina (UNCITRAL Case), Award dated December 24, 2007 (paras. 292, 294) Biwater Gauff (Tanzania) Ltd. v. Tanzania (ICSID Case No. ARB/05/22), Award dated July 24, 2008 (paras. 529, 565, 597, 601) National Grid P.L.C. v. Argentina (UNCITRAL Case), Award dated November 3, 2008 (para. 173) Frontier Petroleum Services Ltd. v. Czech Republic (UNCITRAL Case), Award dated November 12, 2010 (para. 290) Merrill & Ring Forestry L.P. v. Canada (NAFTA/UNCITRAL Case), Award dated March 31, 2010 (paras. 156, 199) Sergei Paushok et al. v. Mongolia (UNCITRAL Case), Award on Jurisdiction and Liability dated April 28, 2011 (para. 625) Meerapfel Sohne AG c. République centrafricaine (ICSID Case No. ARB/07/10), Award dated May 11, 2011 (para. 359) Binder v. Czech Republic (ad hoc), Award dated July 15, 2011 (para. 445) El Paso Energy International Company v. Argentina (ICSID Case No. ARB/03/15), Award dated October 31, 2011 (para. 348) Oostergetel v. Slovak Republic (UNCITRAL Case), Award dated April 23, 2012 (para. 225) Toto Costruzioni Generali S.P.A. v. Lebanon (ICSID Case No. ARB/07/12), Award dated June 7, 2012 (para. 152) Railroad Development Corporation v. Guatemala (ICSID Case No. ARB/07/23), Award dated June 29, 2012 (para. 219) Deutsche Bank AG v. Sri Lanka (ICSID Case No. ARB/09/02), Award dated October 31, 2012 (para. 420) Ioan Micula et al. v. Romania (ICSID Case No. ARB/05/20), Award dated December 11, 2013 (paras. 522, 524) Antoine Abou Lahoud et al. v. Congo (ICSID Case No. ARB/10/4), Award dated February 7, 2014 (paras. 439, 440) Gold Reserve Inc. v. Venezuela (ICSID Case No. ARB(AF)/09/1), Award dated September 22, 2014 (para. 573) Saluka Investments BV v. Czech Republic (UNCITRAL/PCA Case), Partial Award dated March 17, 2006 (para. 303) PSEG Global Inc. et al. v. Argentina (ICSID Case No. ARB/02/5), Award dated January 19, 2007 (para. 240) Enron Corporation Pondesora Assets, L.P. v. Argentina (ICSID Case No. ARB/01/3), Award of May 22, 2007 (para. 257) Sempra Energy International v. Argentina (ICSID Case No. ARB/02/16), Award dated September 28, 2007 (para. 297) Biwater Gauff (Tanzania) Ltd. v. Tanzania (ICSID Case No. ARB/05/22), Award dated July 24, 2008 (para. 530) Duke Energy Electroquil Partners et al. v. Ecuador (ICSID Case No. ARB/04/19), Award dated August 18, 2008 (paras. 334, 339) Plama Consortium Limited v. Bulgaria (ICSID Case No. ARB/03/24), Award dated August 27, 2008 (para. 176) Frontier Petroleum Services Ltd. v. Czech Republic (UNCITRAL Case), Award dated November 12, 2010 (para. 334) El Paso Energy International Company v. Argentina (ICSID Case No. ARB/03/15), Award dated October 31, 2011 (para. 344) 28