Someone Else's Deal: Interpreting International Investment Agreements in the Light of Third-Party Agreements

European Journal of International Law (Forthcoming)

28 Pages Posted: 14 Apr 2017

See all articles by Andrew D. Mitchell

Andrew D. Mitchell

University of Melbourne - Law School

James Munro

University of Melbourne - Melbourne Law School

Date Written: April 13, 2017

Abstract

This article considers whether an international investment agreement (IIA) between two States parties can be interpreted in the light of a ‘third-party IIA’ (defined as a party’s IIA with a third State, a party’s model IIA, or an IIA between other States parties). A significant number of tribunals have been willing to interpret the IIA before them with reference to third-party IIAs, drawing inferences from differences or similarities in their texts. However, the use of third-party IIAs in this manner often reflects an erroneous application of the customary rules of treaty interpretation set out in Articles 31-33 of the Vienna Convention on the Law of Treaties. These conclusions have significant implications for international investment law and State practice. If investment tribunals continue to look to third-party IIAs beyond the parameters of the Vienna Convention, beyond consent of the disputing parties, and beyond the common intention of treaty parties, contemporary developments in treaty drafting may have unintended or even perverse consequences.

Keywords: Treaty Interpretation, International Investment Law, Third Party Agreements

JEL Classification: K33

Suggested Citation

Mitchell, Andrew D. and Munro, James, Someone Else's Deal: Interpreting International Investment Agreements in the Light of Third-Party Agreements (April 13, 2017). European Journal of International Law (Forthcoming). Available at SSRN: https://ssrn.com/abstract=2952302

Andrew D. Mitchell (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia
+61383441098 (Phone)
+61393472392 (Fax)

HOME PAGE: http://www.law.unimelb.edu.au/staff/Andrew%20Mitchell

James Munro

University of Melbourne - Melbourne Law School ( email )

University Square
185 Pelham Street, Carlton
Melbourne, Victoria 3010
Australia

Register to save articles to
your library

Register

Paper statistics

Downloads
167
Abstract Views
585
rank
180,188
PlumX Metrics