Contract Interpretation in Investment Treaty Arbitration de Yuliya Chernykh

Contract Interpretation in Investment Treaty Arbitration: A Theory of the Incidental Issue: International Litigation in Practice, cartea 12

Yuliya Chernykh

Contracts are relevant, frequently central, for a significant number of investment disputes. Yet, the way tribunals ascertain their content remains largely underexplored. How do tribunals interpret contracts in investment treaty arbitration? How should they interpret contracts? Does national law have any role to play? Contract Interpretation in Investment Treaty Arbitration: A Theory of the Incidental Issue addresses these questions. The monograph offers a valuable insight into the practice and theory of contract interpretation in investment treaty arbitration. By proposing a theoretical frame for seamless integration of contract interpretation into the overall structure of decision-making, the book contributes to predictability, coherence, sufficiency and correctness of the tribunals’ interpretative practices in investment treaty arbitration.

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Foreword

Acknowledgements

List of Figures and Tables

Abbreviations

Introduction

part 1
Setting the Scene

1Overview of Contract Interpretation in Investment Treaty Arbitration

1.1 Interpretative Material: Contracts and Contractual Provisions

1.2 Interpretative Occasions

1.2.1Jurisdiction

1.2.2Attribution

1.2.3Expropriation

1.2.4Fair and Equitable Treatment

1.2.5National Treatment and Most-Favoured-Nation Treatment

1.2.6The Umbrella Clause

1.2.7Compensation

1.3 Procedural Setting

1.4 Patterns for Contract Interpretation

1.5 Conclusion

part 2
Defining a Relevant Legal Frame

2National Laws and Contract Interpretation

2.1 What Do We Know: Comparative Scholarship

2.2 The Concept of Contract Interpretation

2.3 Regulation

2.4 Interpretative Approaches: Good Faith and Predictability

2.5 Limits of Subjective-Objective and Other Dichotomies

2.6 Conclusion

3International Law and Contract Interpretation

3.1 The Concept of International Law

3.2 Treaties

3.2.1Rules on Treaty Interpretation

3.2.2International Investment Agreements

3.2.3Uniform Private Law Conventions

3.3 Customary International Law

3.4 General Principles of Law

3.5 Subsidiary Means for Determining the Content of International Law

3.5.1Judicial Practice

3.5.2Scholarly Publications

3.6 Conclusion

part 3
Enabling National Law

4The Power of Treaty-Based Tribunals to Interpret Contracts

4.1 Theory and Foundation

4.1.1The Concept and Types of Tribunal Powers

4.1.2Contract Interpretation as an Inherent Power

4.1.3Contract Interpretation as an Implied Power

4.2 Exercise

4.2.1Contract Interpretation or Fact-Finding

4.2.2Contract Interpretation or Doctrinal Assessment of Contractual Provisions under International Law

4.2.3Deference

4.3 In a Broader Context

4.3.1Similar Powers

4.3.1.1 The PCIJ

4.3.1.2 The ICJ

4.3.1.3 The ECtHR

4.3.2Unsuitable Analogies

4.4 Conclusion

5Contract Interpretation as the Incidental Issue

5.1 Incidental Issues in Private International Law

5.2 National Law Incidental Issues in Investment Treaty Arbitration

5.2.1The Predisposition to Conceptualise Incidental Issues

5.2.2Scholar Attempts to Conceptualise National Law Issues as Incidental Issues

5.2.3Other Supporting Considerations (1): Direct Conceptualisation – National Law Incidental Issues before Other Public International Law Courts

5.2.4Other Supporting Considerations (2): Reverse Conceptualisation – Public International Law Incidental Issues in Domestic Contexts

5.2.5Contribution of Conceptualising National Law Issues as Incidental Issues

5.3 Contract Interpretation as the Incidental Issue in Investment Treaty Arbitration

5.3.1A Legal Issue

5.3.2A Separable Legal Issue

5.3.3Playing a Subsidiary Role to the Principal Cause of Action

5.3.3.1 The Case of Contract Termination

5.3.3.2 The Case of Implied Terms

5.3.4Posing a Question about the Applicable Law

5.3.5Additional Consideration: Cases with Compound Jurisdiction

5.4. National Law in Operation through the Concept of an Incidental Issue

5.4.1Jura Novit Curia

5.4.2Expert Testimony

5.4.3Why Does It Matter?

5.5 Conclusion

General Conclusion

Future Research

List of Annexes

Annexes

Annex I All Known Treaty-Based Cases as of 30 January 2019

Annex II Cases Excluded from Assessment (Publicly Unavailable Awards
and Decisions, or Available Awards and Decisions in Languages
Other than English or Russian)

Annex III Cases with Publicly Available Awards and Decisions in English or Russian Language (the Basis for Assessment)

Annex IV Cases with Elements of Contract Interpretation

Annex V Cases with the Application of National Law to Contract Interpretation (Interpretative Rules of National Laws)

Annex VI Cases with the Application of National Law to Contract Interpretation (Interpretation in Light of Various Other Rules of National Laws)

Annex VII Model BITs as of 30 January 2019

Annex VIII List of Analysed BITs

Annex IX Provisions of Some Relevance for Contract Interpretation in the Selected Uniform Private Law Conventions

Annex X IIAs with Reference to Conflict of Laws of the Host State

Bibliography

Index

Contract Interpretation in Investment Treaty Arbitration: A Theory of the Incidental Issue: International Litigation in Practice, cartea 12

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Contract Interpretation in Investment Treaty Arbitration: A Theory of the Incidental Issue: International Litigation in Practice, cartea 12

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