International Investment Law and Treaty Interpretation
FROM CLINICAL ISOLATION TO SYSTEMIC INTEGRATION, pp. 29-52, Hofmann, Rainer, Tams, C. Christian, eds., Baden-Baden, 2011
24 Pages Posted: 20 Sep 2011
Date Written: March 20, 2011
Investment tribunals often profess fidelity to the rules on treaty interpretation contained in the Vienna Convention on the Law of Treaties (VCLT). At first sight, they mention Article 31 and 32 VCLT with reassuring regularity. But first impressions may lead astray. My hypothesis is that many investment awards demonstrate a cavalier attitude to treaty interpretation. The contrast with the interpretative practice of a highly developed and institutionalized adjudicatory body like the WTO dispute settlement body is particularly striking.
Ubiquitous references to the VCLT in investment awards may serve to reassure readers of the award that the tribunal intends to follow well-trodden paths in treaty interpretation. These declarations of fidelity to the foundational principles of treaty interpretation, however, lack practical substance if tribunals soon thereafter pour cold water on their stated intentions. In surveying the interpretative practice of international investment tribunals, I contend that careful application of the principles of treaty interpretation to the facts is often wanting. Superficial treaty interpretation risks distorting the parties’ intentions and unravelling their treaty bargain.
Keywords: ICSID, investment arbitration, treaty interpretation, law-making, WTO, effectiveness, impact on development
JEL Classification: K33, F21
Suggested Citation: Suggested Citation