Advancing Predictability via a Judicialized Investment Court? A Fresh Look Through the Lens of Constructivism

It has long been debated whether a multilateral court with an appellate mechanism should be established to reinforce the doctrine of precedent and improve the predictability of international investment law. Predictability is widely considered a fundamental canon of law. This article, however, cautions that the pursuit of predictability must be examined against the broader institutional context of investment law. To this end, it canvasses the issue through the lens of International Relations constructivist theory that highlights shared understandings as an essential precondition for legitimate law-making. It further conducts case study of the evolution of international trade law, which serves not only as empirical support for the constructivist framework but also a benchmark for comparative study between the two regimes. It argues that, as currently the investment law regime lacks foundational shared understandings regarding investment protection obligations, entrusting a judicialized court to advance predictability may cause the problem of 'over-institutionalization'. © 2022 The Author(s). Published by Oxford University Press. All rights reserved.