Analogical Reasongin in International Investment Law; Its Functions and Inclusions

In any legal system, it is not possible to foresee legal rules for every imaginable situation or matter. No legislature can claim that it has predicted codified laws for all legal issues, and that under no circumstances the judge will face non liquet on the ground of brevity, deficiency or silence of law in order to decide disputes. This matter has been acknowledged in article 42 (2) of the International Centre for Settlement of Investment Disputes (ICSID Convention), according to which, ‘‘The Tribunal may not bring in a finding of non liquet on the ground of silence or obscurity of the law’’. Hence, the arbitrator has to issues an award. He, on the pretext of the silence of or obscurity of law in the matter, or its brevity, cannot refrain from doing so. Since the establishment of the ICSID under the Convention on the settlement of investment disputes between states and nationals of other states and other investment treaty arbitrations, different methods have been used to fill gaps, ambiguity and brevity of the laws, the most obvious of which is analogical reasoning. Although the Court, in most cases, has been silent about resorting to analogy in its methodologies; it is suggested that analogy plays an important role in the arbitration of ICSID and other investments treaties, as a means of filling gaps, determining the meaning of the provisions of the treaties, eliminating the ambiguity and brevity of the concepts, rules and the principles of international investment law, as well as identifying the legal rule governing each cases. This article, while using the descriptive-analytical method, is focused on analyzing the role analogy as a basic method of legal reasoning in the judicial award of investment disputes tribunals.