Treaty Interpretation in Investment Arbitration

The rise of investment arbitration in the last decade has generated an unprecedented body of arbitral case law. The work of these arbitral tribunals has provided scholars and practitioners with public international law jurisprudence, including materials on treaty interpretation which has not yet been thoroughly analysed. This book evaluates the contribution of investment arbitration treaty interpretation jurisprudence to international law, covering all key aspects of treaty interpretation. Included in the book's coverage are awards which feature in prominent discussions or in applications of treaty interpretation rules. Among the significant portion of arbitral awards analysed, which deal with investment treaties, are ICSID awards, ad hoc investment arbitration awards, NAFTA awards, and Energy Charter Treaty awards. The extensive analysis of investment arbitration awards and decisions has also been used to create a table highlighting both the references to principles of treaty interpretation and instances in which they were rejected. This invaluable insight into the practice of investment tribunals will be of interest to both practitioners and academics alike. Foreword by by Professor Michael Reisman, Yale Law School This is one of the principal advantages of the book: practitioners and arbitrators have an undeniably useful practical tool for quickly and easily identifying arbitral jurisprudence which supports a given method of treaty interpretation. Paris Journal of International Arbitration This invaluable insight into the practice of investment tribunals will be of interest to both practitioners and academics alike. ASA Bulletin1. Introduction ; A. Overview ; B. Relevant Treaty Law ; 2. Treaty Interpretation: History and Background ; A. Pre-Vienna Convention Treaty Interpretation Rules ; B. Development of the Convention Rules ; C. Criticism of the Convention Rules ; D. Customary Status and FIAT Use of the Convention Rules ; E. Interpretation and Application Distinguished ; F. Who May Interpret Treaties? ; G. What May be Interpreted by the Convention Rules? ; 3. The General Rule of Treaty Interpretation ; A. Introduction ; B. Article 31(1) ; C. Article 31(2) ; D. Article 31(3) ; E. Article 31(4) ; 4. Supplementary Means of Interpretation ; A. Article 32 ; B. Preparatory Work ; C. Circumstances of a Treaty's Conclusion ; D. Confirming a Meaning ; E. Determining a Meaning ; 5. Non-Codified Means of Interpretation ; A. Introduction ; B. Use of Prior Awards and Decisions ; C. Treaties, Instruments, or Materials ; D. Scholarly Opinion ; E. Inter-Temporal Aspects ; F. Principle of Effectiveness ; G. Legal Maxims ; 6. Interpretation Jurisprudence Particular to Investment Arbitration ; A. The AAP Rules ; B. Failure to Apply Convention Rules ; C. Unilateral Declarations Consenting to Investment Arbitration ; D. Umbrella Clauses ; E. Most Favoured Nation Clauses ; F. Disclosure of Preparatory Work ; G. Pro-Investor Bias in Interpreting Investment Treaties? ; H. Restrictive Interpretation ; I. Pre-Arbitration Waiting Period ; J. Interpreting Silence ; 7. Conclusion ; A. Conclusions on FIAT Treaty Interpretation Practice ; B. Suitability of Convention Rules for Investor-State Disputes ; C. Contribution of FIAT Practice to Internation Law ; APPENDICES ; I. Analytical Tables of FIAT Treaty Interpretation Practice ; II. Comparison between Articles 27-29 of the 1966 ILC Draft and Articles 31-33 of the Vienna Convention ; III. Comparative Table of Draft Treaty Interpretation Rules ; IV. Umbrella Clause Comparative Table ; V. Selected ICJ Decisions Confirming Customary Status of the Convention Rules ; VI. Other Selected International Decisions Confirming Customary Status of the Convention Rules ; VII. Selected Domestic Court Decisions Confirming Customary Status of the Convention Rules