Delegating Interpretative Authority in Investment Treaties: The Case of Joint Commissions

Published in: Transnational Dispute Management, Vol. 11, Issue 1 (2014), online journal (TDM Special issue on "Reform of Investor-State Dispute Settlement: In Search of a Roadmap")

U. of St.Gallen Law & Economics Working Paper No. 2013-22

25 Pages Posted: 14 Dec 2013 Last revised: 18 Jul 2014

See all articles by Anne van Aaken

Anne van Aaken

University of Hamburg, Law School; Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Research on Collective Goods

Date Written: December 13, 2013

Abstract

ISDS is at a crossroads and many alternative solutions have been proposed for reforming the system. One has been neglected in the discussion: the role of joint commissions of the state parties resolving certain problems in investment treaties. This alternative 'withdraws' interpretative authority from tribunals and directs it to state agencies; tribunals gain interpretative authority only as a default rule. In order to answer the question of whether this alternative is viable and extendable, this contribution draws on rationalist approaches for answering the question of why and to whom interpretation of investment treaties should be delegated. The current system of ISDS is used as a benchmark against which other possibilities of outsourcing interpretation are judged on certain criteria (credibility of commitment and relevant expertise). A comparative analysis between this solution and the current delegation of interpretation to arbitral tribunals is offered.

Keywords: International Investment Law, investment treaties, ISDS, arbitral tribunals, economic theory

Suggested Citation

van Aaken, Anne, Delegating Interpretative Authority in Investment Treaties: The Case of Joint Commissions (December 13, 2013). Published in: Transnational Dispute Management, Vol. 11, Issue 1 (2014), online journal (TDM Special issue on "Reform of Investor-State Dispute Settlement: In Search of a Roadmap"); U. of St.Gallen Law & Economics Working Paper No. 2013-22. Available at SSRN: https://ssrn.com/abstract=2367191 or http://dx.doi.org/10.2139/ssrn.2367191

Anne Van Aaken (Contact Author)

University of Hamburg, Law School ( email )

Johnsallee 35
Hamburg, 20148
Germany

Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Research on Collective Goods ( email )

Kurt-Schumacher-Str. 10
D-53113 Bonn, 53113
Germany

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