Beyond the Norm: The Hermeneutic Function of Treaty Preambles in Investment Arbitration and International Law

Romanian Arbitration Review [Revista Romana de Arbitraj] - Vol. 36, No. 4 (2015)

18 Pages Posted: 13 Jan 2016

See all articles by Horia Ciurtin

Horia Ciurtin

Amsterdam Center for International Law; European Federation for Investment Law and Arbitration; VERSO Journal [Cluj-Napoca/Bucharest]

Date Written: December 1, 2015

Abstract

The present essay proposes an alternative theoretical framework regarding the notion of normativity in international law, beyond the dominant kelsenian-positive paradigm. By using a decisionist approach, it is shown how the preambles of international treaties are conceptualized and instrumented so as to serve a non-literal exegesis of the relevant legal norms. Thus, not only the general rule of VCLT is taken into consideration, but also the underlying principles that guarantee its effectiveness. As regards the BITs, our inquiry begins by analyzing the structure of preambles and their latest evolutions, continuing by explaining the influence that such instruments actually played in investment arbitration case-law, as well as the role they exerted in expanding the rights of the investors in relation to indeterminate standards such as FET.

Keywords: BIT; preambles; hermeneutics; investment law; international law

JEL Classification: K33

Suggested Citation

Ciurtin, Horia, Beyond the Norm: The Hermeneutic Function of Treaty Preambles in Investment Arbitration and International Law (December 1, 2015). Romanian Arbitration Review [Revista Romana de Arbitraj] - Vol. 36, No. 4 (2015), Available at SSRN: https://ssrn.com/abstract=2714355

Horia Ciurtin (Contact Author)

Amsterdam Center for International Law ( email )

P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

HOME PAGE: http://www.uva.nl/en/profile/c/i/h.a.ciurtin/h.a.ciurtin.html

European Federation for Investment Law and Arbitration ( email )

Brussels
Belgium

HOME PAGE: http://efilablog.org

VERSO Journal [Cluj-Napoca/Bucharest] ( email )

Cluj-Napoca, Cluj
Romania

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