Of the various criticisms that have been lodged against the existing system of investor-state dispute resolution, one of the more recurrent has been the charge of inconsistency. It is sometimes said that certain decisions reached by various tribunals in such disputes are in fundamental tension with one another, or even wholly irreconcilable. This chapter argues that this claim is overwrought. The critics who dwell on language that appears to set a higher or lower legal standard for liability in tribunals' awards often overlook far more notable, and consequential, differences in the facts of...

Of the various criticisms that have been lodged against the existing system of investor-state dispute resolution, one of the more recurrent has been the charge of inconsistency. It is sometimes said that certain decisions reached by various tribunals in such disputes are in fundamental tension with one another, or even wholly irreconcilable. This chapter argues that this claim is overwrought. The critics who dwell on language that appears to set a higher or lower legal standard for liability in tribunals' awards often overlook far more notable, and consequential, differences in the facts of various cases. Commentators who decry differing applications of common legal principles sometimes fail to notice significant differences in the texts of the treaties establishing those principles. Further, certain decisions frequently cited as examples of inconsistent reasoning may in fact have more in common than is generally recognized. When one considers these points, the apparent inconsistencies in investor-state case law become notably less troubling, insofar as they are troubling at all.