Applicable Law Provisions in Investment Treaties: Forever Midnight Clauses?

Abstract

Building on the growing awareness that applicable law determinations are one of the places where the balance between investor and state interests is struck in investment disputes, the article probes the capacity of applicable law provisions (ALPs) in investment treaties to contribute to its regulation. Based on a large scale survey of treaty texts (1000+ treaties), the article argues that there is a misunderstanding of ALPs by negotiators despite greater engagement with these provisions. The article uncovers a mismatch between the questions of choosing among different potentially applicable laws and their proper interpretation, which are salient in investment arbitration, and the focus of ALP drafting. Even recent ALPs seem primarily used as tools to circumscribe tribunals’ jurisdiction, which leads to their redundancy. To bridge this gap, the article argues for a structural change bringing ALPs in investment treaties closer to choice of law provisions proper.

Keywords: investment arbitration, investment treaties, reform, applicable law