The Interpretation of Investment Treaties (International Litigation in Practice)

Within the context of an exponential proliferation of investment treaties with virtually uniform language and structure, The Interpretation of Investment Treaties by Trinh Hai Yen reveals the neglect or misapplication of international rules on treaty interpretation by tribunals in arbitral cases. Such practice has raised the question of the legitimacy of the interpretative process and the engendered inconsistent interpretations of investment treaties.The book proposes three interpretative approaches aimed at ensuring that adjudicators find legitimate meaning in the challenging generality and vagueness of investment treaty language. It also provides a comprehensive analysis of legislative solutions for states through a case study of the ASEAN Comprehensive Investment Agreement, as well as a comparative analysis of modern and traditional investment treaties. The Interpretation of Investment Treaties 4 Copyright 5 Dedication 6 Contents 7 Acknowledgements 10 List of Abbreviations 12 Table of Cases 13 Introduction 26 1 Interpretive Problems of Traditional Investment Treaties and the Inconclusive Search For Causes and Solutions 33 1 Inconsistent and Unintended Interpretations of Investment Treaty Terms 34 2 Diagnosed Causes and Suggested Solutions 41 2.1 Textual Indeterminacy and Imbalance 41 2.2 Structure and Nature of Investor-State Arbitration 44 2.3 The Approaches of Arbitrators 50 Conclusion 55 2 The Neglect and Misapplication of International Rules on Treaty Interpretation in Investment Treaty Arbitrations 57 1 Legal Basis and Overview of the Arbitral Use of Interpretive Tools in Interpreting Investment Treaties 61 1.1 International Rules on Treaty Interpretation Codified under the Vienna Convention on the Law of Treaties 61 1.2 Means of Interpretation under the General Rule 68 1.3 Supplementary Means of Interpretation 89 2 Arbitral Neglect and Misapplication of Interpretation Rules 100 2.1 Disregard of All or the Required Means of Interpretation under International Law 101 2.2 Overreliance on Judicial Decisions and Scholarly Writings 108 2.3 Liberal Reading of the Treaty Object and Purpose 116 Conclusion 123 3 Rectifying the Neglect and Misapplication of International Rules on Treaty Interpretation 126 1 Proposed Approaches to Rectify the Problematic Methodologies in Interpreting Investment Treaties 129 1.1 Adopting and Exhausting the Multiple means of Interpretation under the VCLT 129 1.2 Identifying and Distinguishing the Role of the Interpretational means in Accordance with the VCLT Rules 132 1.3 Considering Circumstances of Treaty Conclusion 133 2 Illustrations on the Need and Possible Effects of the Proposed Approaches 140 2.1 MFN Provisions 141 2.2 Interpreting the “Fair and Equitable Treatment” Provision 154 3 Relevance of Restrictive Interpretation and the No-Restriction Presumption Principle in International Investment Law 172 Conclusion 177 4 A Preliminary Search for State Intent in the Emergence and Development of Investment Treaties 178 1 Existing International Regulation on Foreign Investment before the Emergence of Investment Treaties 179 1.1 International Documents Relating to Foreign Investment 179 1.2 Customary International Law 181 1.3 FCN Treaties 181 2 Where the Minds of Proponents and Opponents of Investment Treaties Meet 184 2.1 From the First Investment Treaties to the First Investor-state Arbitration 184 2.2 The End of 1980s-Present 189 3 A Case Study: Incorporation of the Provisions on Investor-state Arbitration in Investment Treaties 192 Conclusion 195 5 Law-Making Options to Address the Interpretive Problems of Investment Treaties 198 1 Costs and Benefits of Signing Investment Treaties 199 1.1 Inconclusive Rewards 199 1.2 Paying the Price of Signing Investment Treaties 204 2 Available Law-Making Options for States 212 2.1 Terminating Investment Treaties 212 2.2 Removing Investor-State Arbitration 214 2.3 Designing New Investment Treaties 216 3 The ASEAN Countries’ Choice of a Renegotiated Regional Treaty 219 3.1 Overview of the Bilateral Treaties of ASEAN Countries 219 3.2 ASEAN’s Regional Investment Treaties before 2009 222 3.3 The 2009 ASEAN Comprehensive Investment Agreement 223 Conclusion 227 6 Controlling State Commitments in the ACIA Provisions 228 1 Clarifying the Coverage of the ACIA Benefits 229 1.1 Specific Approval of Investments and Compliance with National Laws, Regulations and Policies 231 1.2 Characteristics of Investment 232 1.3 Clarifications of Investment Forms 233 1.4 Dual Nationality 234 1.5 Denial of Benefits 234 2 Controlling State Commitments in the ACIA Substantive Provisions 236 2.1 Specifying the Meanings of Substantive Standards of Treatment 239 2.2 Permissible Deviations from Substantive Standards through Provisions on Exceptions 252 2.3 Synchronizing the Interpretive Problems of Substantive Provisions under Traditional Investment Treaties through the MFN Clause 263 3 Controlling State Commitments in the ACIA Procedural Provisions 266 3.1 The Development of the ISA Provisions of the ACIA 266 3.2 Clarifications and Additions in the Provisions on Investor-State Arbitration 272 Conclusion 280 Conclusion 282 Appendix A Matrix of Means of Interpretation adopted by Arbitral Tribunals to Interpret Investment Treaties 286 Appendix B List of Decisions and Awards Not in English 357 Appendix C 2009 Asean Comprehensive Investment Agreement 359 Bibliography 392 Index 403 Within the context of an exponential proliferation of investment treaties with virtually uniform language and structure, The Interpretation of Investment Treaties by Trinh Hai Yen reveals the neglect or misapplication of international rules on treaty interpretation by tribunals in arbitral cases. Such practice has raised the question of the legitimacy of the interpretative process and the engendered inconsistent interpretations of investment treaties. The book proposes three interpretative approaches aimed at ensuring that adjudicators find legitimate meaning in the challenging generality and vagueness of investment treaty language. It also provides a comprehensive analysis of legislative solutions for states through a case study of the ASEAN Comprehensive Investment Agreement, as well as a comparative analysis of modern and traditional investment treaties Within the context of an exponential proliferation of investment treaties with virtually uniform language and structure, this book by Trinh Hai Yen reveals the neglect or misapplication of international rules on treaty interpretation by tribunals in arbitral cases. Such practice has raised the question of the legitimacy of the interpretative process and the engendered inconsistent interpretations of investment treaties.0The book proposes three interpretative approaches aimed at ensuring that adjudicators find legitimate meaning in the challenging generality and vagueness of investment treaty language. It also provides a comprehensive analysis of legislative solutions for states through a case study of the ASEAN Comprehensive Investment Agreement, as well as a comparative analysis of modern and traditional investment treaties Interpretive problems of traditional investment treaties and the inconclusive search for causes and solutions -- The neglect and misapplication of international rules on treaty interpretation in investment treaty arbitrations -- Rectifying the neglect and misapplication of international rules on treaty interpretation -- A preliminary search for state intent in the emergence and development of investment treaties -- Law-making options to address the interpretive problems of investmenttreaties -- Controlling state commitments in the ACIA provisions. by Trinh Hai Yen. Based on the author's PhD research at the National University of Singapore between 2010 and 2013. Includes bibliographical references (pages 367-377) and index. In The Interpretation of Investment Treaties, Trinh Hai Yen analyzes arbitral neglect or misapplication of international rules on treaty interpretation in investor-state arbitrations and proposes both adjudicative and legislative solutions