Investment Protection Law and Sources of Law: A Critical Look

Abstract:     
During the last decade investment arbitration has made a considerable contribution to the development of investment protection law. This contribution discusses some sources of law implications of the extensive reliance that investment arbitration tribunals place on the case law interpreting pari materia treaty rules. It considers whether the interpreters are entitled to rely on interpretations of pari materia rules by reference to the concepts of ordinary meaning, generic terms, supplementary means or customary law. Underlying customary law apart, the authority to engage in such an interpretative exercise is not necessarily obvious. It may be advisable to reconsider the benefits of a more formalistic approach to sources with a clearer identification of applicable law. Whatever a priori jurisprudential reasons for consistency States may be presumed to have, practice shows them as satisfied with the existing framework encapsulating the procedurally and substantively fragmented system.

Number of Pages in PDF File: 5

Keywords: Investment Arbitration, Investment Protection Law, Treaty Interpretation, Customary Law

JEL Classification: F02, F10, F13, F14, F15, K33

Accepted Paper Series