Say it like you mean it: some reflection on Born and Moranis' words on investment treaty interpretation
When Gary Born and Mitchell Moranis state that ‘While the investment treaty system may look, talk, and act like a “regime,” it is not a multilateral system’, they can’t be any more right than they are. Investment law, as every student with more than one investment law lecture under their belt knows, is a “system”, in the broadest sense, made of almost 3000 bilateral treaties (2222 in force as per the UNCTAD IIAs Navigator). Yet, arbitrators, practitioners and scholars (including yours truly) always treat it like a coherent system – or, possibly, try to make it into one.
The issue is – taking from where Born and Moranis left it – do we need a system of investment law, or a system of investment arbitration, or either, or both, or neither? It is not really a question that many a scholar has attempted to answer - most recently William McElhiney in 49(3) Texas Int’l L. J. 601 (2014), Joost Pauwelyn in 29(2) ICSID Rev. – FILJ 37 (2014) and Federico Ortino in 24(3) Am. Rev. Int’l Arb. 437 (2014) wrote seminal pieces taking for granted that the investment treaty system is indeed a system, and that it is definitely a sub-system of public international law.
Now, I’m not so sure anymore, and this is for a number of reasons (some of which expertly highlighted by Ruth Okediji, “Is Intellectual Property "Investment"?: Eli Lilly v. Canada and the International Intellectual Property System”, 35(4) University of Pennsylvania Journal of International Law 1121 (2014). However, if investment law is a system within international law, then Born and Moranis’ question is easily answered: we have the VCLT, let’s use it and while we’re at it let’s try and interpret investment treaties systematically.If investment law is not international law, however, then all the issues raised by Born and Moranis should be not only embraced, but likely brought to a different level: do we need an in-built system of interpretation? And if so, built where? If not, how about we merely treat the case-law as (weakly) persuasive precedent, try once and for all to develop a system of jurisprudence constante in the ICSID system, but other than that leave it to the bilateral system that it looks like? The how is explained by yours truly here, the why is because the only ICSID could indeed, one amongst countless playfields of investment law and arbitration, be a system).However, from reading Born and Moranis’ post, it looks to me that one of the reasons behind this need for investment law’s own rules of interpretation may well be the increasing lack of certainty and predictability in how investment arbitral tribunals interpret investment treaty provisions. Perhaps then, rather than a new interpretation system, we just need for more clarity?
