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Research On Inconsistency And Coordination Of Treaty Interpretation In International Investment Arbitration

Posted on:2017-10-28Degree:MasterType:Thesis
Country:ChinaCandidate:J YeFull Text:PDF
GTID:2346330485497384Subject:International Law
Abstract/Summary:PDF Full Text Request
In the field of international investment agreements(IIAs), given the imbalance of treaty rights between the host state and the investor, arbitral tribunals, in the absence of specific rules governing the interpretation and application of broad and vague terms in IIAs, are likely to reach conclusions or rewards in favor of investors, which have potentially led arbitral tribunals to inconsistent interpretations unintended and unforeseen by the treaty parties. In practice, the issue lies in the cases where arbitral tribunals reach contradictory awards as a result of inconsistent treaty interpretations upon the same or similar terms in IIAs. With regard to the coordination of interpretative inconsistency, a feasible solution relies on the establishment of multilateral investment framework in the forthcoming future. In light of the existing legal regime of international investment arbitration, however, there remains the lack of coherent interpretative standards to be applied by arbitral tribunals as well as the insufficiency of emphasis on the role of treaty parties' interpretation. This article, based on the empirical analysis on different controversial clauses in IIAs, explores the allocation of rights and application of rules with respect to treaty interpretation, discusses the role of treaty parties' interpretation as a tool to assist arbitral tribunals with their task of interpreting treaties, and proposes a set of solutions for arbitral tribunals, by means of shifting the burden of proof between disputing parties, to deal with issues regarding treaty interpretations and thus preserve the legitimacy and creditability of international investment arbitration. Apart from the introduction, this article includes the following five parts.Part ? discusses the conceivable causes of interpretative inconsistency within the framework of IIAs. The first two are the objective causes including imbalance of treaty parties' rights and diversity of existing treaty models. The third one, also the last, is the subject cause which is the negative attitude of the investor's home state.Part ? analyzes three typical cases involving interpretative inconsistency, including the umbrella clause, the most-favor-nation treatment clause and the denial of justice clause. This part starts with a brief introduction of cases, then finds out the issues out of them, and lastly emphasizes on the significance of feasible solutions.Part ? focuses on the preconditions of coordinating interpretative inconsistency. A couple of factors have to be taken into consideration prior to the coordination of interpretative inconsistency: the allocation of interpretative rights and application of rules governing treaty interpretation. Two conclusions are drawn in this part that interpretations made by different parties shall be inconsistent and the international interpretation rules shall be applicable to any IIA.Part ? proposes a solution for arbitral tribunals to deal with interpretative inconsistency. This part, on the basis of multiple cases study, offers arbitral tribunals an idea of relying on the role of treaty parties, by means of shifting the burden of proof between disputing parties, to deal with different issues with regard to treaty interpretation.Part ? offers specific suggestions concerning how to coordinate the interpretative inconsistency in IIAs. This part considers different positions of China when concluding treaties and proposes some suggestions with respect to treaty drafting and the construction of interpretative system, for purpose of helping China prevent the risks of interpretative inconsistency prior to conclusion of IIAs.
Keywords/Search Tags:International Investment Arbitration, Treaty Interpretative Inconsistency, Treaty Parties' Interpretation
PDF Full Text Request
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