Investor-State Arbitration Tribunals

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Uses and abuses of authentic interpretations of international investment agreements: Reflections on the role of arbitral tribunals as masters of the judicial function

In their previous posts, Catharine Titi and Tarcisio Gazzini discussed some general aspects concerning authentic (joint) interpretations of international investment agreements. They brilliantly clarified aspects concerning the timing of joint interpretations as well as the murky difference between interpretations and amendments of investment treaties. This post will not delve into what was already explained by my distinguished colleagues, but will focus on the – often distorted – effects of authentic interpretations on ongoing investment disputes. Both Professors Titi and Gazzini seem to accept the possibility that a subsequent authentic interpretation is binding upon established arbitral tribunals if the relevant treaty so disposes. In this regard, Prof. Gazzini also adds that – even in presence of an authentic interpretation which does not clarify its effects on pending disputes – an arbitral tribunal can hardly depart from it, unless the authentic interpretation disguises an amendment of the applicable treaty (something that, as rightly noted by the author, is prohibited by the customary principle tempus regit actum). Indeed, in Gazzini’s opinion, “tribunals should refrain from…

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The Timing of Treaty Party Interpretations

Treaty interpretation by treaty Parties was initially planned to be discussed in the 39th session of UNCITRAL Working Group III scheduled to take place in New York in March-April 2020. A Note prepared by the UNCITRAL Secretariat in anticipation of the now-postponed session addressed treaty interpretation in the context of ISDS, pointing to the existing interpretive…

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Authentic (or Authoritative) Interpretation of Investment Treaties by the Treaty Parties

General remarks The interpretation of investment treaties is governed by the rules on interpretation codified in Articles 31 to 33 of the Vienna Convention on the Law of Treaties (VCLT). The hybrid nature of Investor-State arbitration, in which the parties to the dispute and the parties to the treaty do not coincide, calls for a “particular…

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The Draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement: An Important Step Forward in the Reform Process?

On May 1, 2020, the secretariats of ICSID and UNCITRAL released the first draft of the Code of Conduct for Adjudicators in Investor-State Dispute Settlement (ISDS). States, international organisations and other stakeholders have until October 15 to send comments on the draft. I had the privilege to work extensively on the draft…

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COVID-19 and ‘War’ Clauses in Investment Treaties: A Breach through the Wall of State Sovereignty?

In the fog of COVID-19, lawyers are identifying ways to hold States accountable for the outbreak, indecision and/or actions, whether or not violating due diligence obligations. States have adopted different measures, with varying success and degree of intrusiveness: from lockdowns over export restrictions and requisitions, to stimulus legislation and even infection tracking. As with…

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