Investment Treaties Over Time - Treaty Practice and Interpretation in a Changing World

OECD Working Papers on International Investment 2015/02

42 Pages Posted: 27 Jan 2015 Last revised: 5 Feb 2015

See all articles by Kathryn Gordon

Kathryn Gordon

Investment Division, OECD

Joachim Pohl

Organization for Economic Co-Operation and Development (OECD) - Investment Division

Date Written: January 26, 2015

Abstract

Investment treaty law reflects a permanent tension between stability and flexibility. Stability nurtures predictability, while flexibility helps legal systems stay in alignment with changing circumstances and evolving needs. This paper establishes an inventory of the mechanisms in investment treaty law that provide flexibility and surveys relevant treaty practice.

The paper: analyses the drivers of change in investment treaty law; provides an inventory of countries’ options – and limits – to alter their positioning vis-à-vis investment treaty law through ‘exit’ and ‘voice’; and analyses treaty provisions on, and States’ use of, flexibility in investment treaty law.

The paper finds that most treaties provide for little or no mechanism for countries to influence the use and interpretation of investment treaty law. The paper further finds that treaty provisions for ‘exit’ are likewise geared to provide stability rather than flexibility. Analysis of State practice presented in the paper shows that States rarely make use of the mechanisms available to them to influence treaty use and interpretation and that ‘exit’ from the system has likewise been rare so far.

Keywords: investment treaties, international investment agreements, investment protection, international investment law

JEL Classification: F21, F53, K33, N40, P45

Suggested Citation

Gordon, Kathryn and Pohl, Joachim, Investment Treaties Over Time - Treaty Practice and Interpretation in a Changing World (January 26, 2015). OECD Working Papers on International Investment 2015/02, Available at SSRN: https://ssrn.com/abstract=2555606 or http://dx.doi.org/10.2139/ssrn.2555606

Kathryn Gordon

Investment Division, OECD ( email )

2 rue André Pascal
Paris, 75016
France
(331) 45 24 98 42 (Phone)
(331) 45 24 90 50 (Fax)

Joachim Pohl (Contact Author)

Organization for Economic Co-Operation and Development (OECD) - Investment Division ( email )

2 rue André Pascal
Paris, 75775
France

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