Snowflakes in a Blizzard: Treaty Interpretation in International Investment Law

Perspectives on the Modern Law of Treaties, Cambridge: Cambridge University Press, 2016, Forthcoming

U of Michigan Public Law Research Paper No. 504

21 Pages Posted: 3 Apr 2016 Last revised: 8 Nov 2016

Date Written: November 1, 2016

Abstract

Taken as a body of treaty law, the signal characteristic of the international investment regime is its peculiar combination of pervasive similarity and relentless variation. Thousands of bilateral investment treaties have similar concerns, similar substance, similar enforcement structure, and similar terms. And yet the widely varying permutations of substantive guarantees, dispute resolution mechanics, and covered activities means that very few are exactly alike.

As a result, interpreters must regularly navigate a deep tension between (on one hand) the need for individualized and contextually sensitive treatment and (on the other) the demands of a systemically sensible administrative apparatus. It is a measure of the sometimes awkward fit between the modern law of treaties and the modern law of investment protections that the latter seriously complicates at least three important aspects of the former: (1) the rules governing third-party beneficiaries; (2) the project of consistent interpretation in a decentralized system and (3) the distinction between multilateral and bilateral regimes.

This paper describes how the BIT ecosystem’s peculiar combination of pervasive similarity and relentless variation -- its swirl of snowflakes in a blizzard -- plays out in each of these three areas.

Keywords: treaty interpretation, VCLT, ISDS, investment law, BIT, NAFTA, precedent, MFN, third party beneficiary, strategic incorporation

Suggested Citation

Mortenson, Julian Davis, Snowflakes in a Blizzard: Treaty Interpretation in International Investment Law (November 1, 2016). Perspectives on the Modern Law of Treaties, Cambridge: Cambridge University Press, 2016, Forthcoming; U of Michigan Public Law Research Paper No. 504. Available at SSRN: https://ssrn.com/abstract=2757690

Julian Davis Mortenson (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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