Power and Persuasion in Investment Treaty Interpretation: The Dual Role of States

Abstract

A key problem in the investment treaty field is that the balance of interpretive power between treaty parties and tribunals is askew. Treaties that create rights for non-state actors, like human rights and investment treaties, establish dual roles for states as treaty parties (with an interest in interpretation) and actual or potential respondents in investor-state disputes (with an interest in avoiding liability). By viewing states primarily as respondents rather than also as treaty parties, tribunals often overlook or undervalue the importance of subsequent agreements and practices to interpretation. This article seeks to recalibrate that balance by proposing a constructive dialogue between treaty parties and tribunals based, in part, on a revaluation of such evidence.

Keywords: investment, investment treaties, interpretation, interpretive balance, balance of power, subsequent agreements, subsequent practice, VCLT, Vienna Convention on the Law of Treaties, Free Trade Commission, FTC, delegation, dialogue, agency, trustee, human rights, duality, dual roles, exit, voice