Abstract

http://ssrn.com/abstract=1744834
 


 



Power-Conferring Treaties: The Meaning of 'Investment' in the ICSID Convention


Tony Cole


Brunel Law School

Anuj Kumar Vaksha


affiliation not provided to SSRN

January 21, 2011

Leiden Journal of International Law, Vol. 24, No. 2, 2011
Warwick School of Law Research Paper Series 2011/03

Abstract:     
It is now standard in contemporary international law commentary to note that the latter part of the 20th has Century seen a move away from the traditional understanding of international law as fundamentally based on the consent of States. As just two examples, customary international law has in some contexts become more influential than treaties, and human rights obligations are now recognised as often binding States even when they have signed no treaty acknowledging their existence. Treaty interpretation, by contrast, has remained focused upon the parties to a treaty, with even textualist approaches to treaty interpretation being justified as the best means of ascertaining the intent of the contracting States.

The purpose of the present article is to highlight the existence of a subset of treaties for which even a teleological approach to interpretation fails to capture the central importance for the treaty of entities other than the contracting States. These “power-conferring treaties” do not merely entrust tribunals with the power to effectively fashion the means by which a treaty’s goals should be achieved. To varying degrees, they grant control of the treaty itself, including at times both its enforcement and the very meaning of its terms, to entities other than the contracting States. As a result, the traditional emphasis in treaty interpretation on the “object and purpose” of the treaty, and the precise language in which the treaty is written, will fail to generate an interpretation that faithfully captures the manner in which the treaty genuinely functions.

The article then illustrates the potential impact of the power-conferring nature of a treaty through an analysis of the meaning of the term "investment" in the International Convention for Settlement of Investment Disputes. This is one of the most controversial topics in contemporary international investment law, with an enormous impact upon the jurisdiction of ICSID arbitral tribunals. It is argued that recognising the power-conferring nature of the ICSID Convention provides an enhanced understanding into the way that this term should be interpreted.

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Date posted: January 23, 2011 ; Last revised: March 22, 2011

Suggested Citation

Cole, Tony and Kumar Vaksha, Anuj, Power-Conferring Treaties: The Meaning of 'Investment' in the ICSID Convention (January 21, 2011). Leiden Journal of International Law, Vol. 24, No. 2, 2011; Warwick School of Law Research Paper Series 2011/03. Available at SSRN: http://ssrn.com/abstract=1744834

Contact Information

Tony Cole (Contact Author)
Brunel Law School ( email )
228 Marie Jahoda
Uxbridge, Middlesex UB8 3PH, UB8 3PH
United kingdom
HOME PAGE: http://www.brunel.ac.uk/bls/people/academic/mr-tony-cole
Anuj Kumar Vaksha
affiliation not provided to SSRN
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