Under the Hood of Investment Arbitration: General Principles of Law

This opening chapter addresses the function of general principles of law in investment arbitration. It sets the scene for the volume’s investigation, and draws from the subsequent chapters to provide an overview. It is possible, in this light, to offer some general remarks. General principles are hardly ever used as primary norms of conduct, and mostly operate to make formal rules viable (complementing the procedural set of arbitration, or steering the interpretation of treaty norms). Principles operate ad hoc, their application depending on specific instances of normative ambiguity or unusual factual patterns. They are more than gap-fillers, but they cannot attain the front stage; in a sense, systematic recourse to general principles would call into question the viability of the treaty régime that fuels and sustains investment arbitration.