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")
25 Pages Posted: 14 Dec 2013 Last revised: 18 Jul 2014
Date Written: December 13, 2013
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
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