Contract Interpretation in Investment Treaty Arbitration

Yuliya Chernykh, Ph.D. University of Oslo, is Associate Professor of the Inland Norway University of Applied Sciences. She is Chartered Arbitrator and an author of various publications in the fields of international law, international arbitration and legal history.

Foreword


Acknowledgements


List of Figures and Tables


Abbreviations


Introduction


part 1

Setting the Scene



1 Overview of Contract Interpretation in Investment Treaty Arbitration


 1.1 Interpretative Material: Contracts and Contractual Provisions


 1.2 Interpretative Occasions


 1.2.1 Jurisdiction


 1.2.2 Attribution


 1.2.3 Expropriation


 1.2.4 Fair and Equitable Treatment


 1.2.5 National Treatment and Most-Favoured-Nation Treatment


 1.2.6 The Umbrella Clause


 1.2.7 Compensation


 1.3 Procedural Setting


 1.4 Patterns for Contract Interpretation


 1.5 Conclusion


part 2

Defining a Relevant Legal Frame



2 National 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


3 International Law and Contract Interpretation


 3.1 The Concept of International Law


 3.2 Treaties


 3.2.1 Rules on Treaty Interpretation


 3.2.2 International Investment Agreements


 3.2.3 Uniform 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


 3.5.1 Judicial Practice


 3.5.2 Scholarly Publications


 3.6 Conclusion


part 3

Enabling National Law



4 The Power of Treaty-Based Tribunals to Interpret Contracts


 4.1 Theory and Foundation


 4.1.1 The Concept and Types of Tribunal Powers


 4.1.2 Contract Interpretation as an Inherent Power


 4.1.3 Contract Interpretation as an Implied Power


 4.2 Exercise


 4.2.1 Contract Interpretation or Fact-Finding


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


 4.2.3 Deference


 4.3 In a Broader Context


 4.3.1 Similar Powers


 4.3.1.1 The PCIJ


 4.3.1.2 The ICJ


 4.3.1.3 The ECtHR


 4.3.2 Unsuitable Analogies


 4.4 Conclusion


5 Contract Interpretation as the Incidental Issue


 5.1 Incidental Issues in Private International Law


 5.2 National Law Incidental Issues in Investment Treaty Arbitration


 5.2.1 The Predisposition to Conceptualise Incidental Issues


 5.2.2 Scholar Attempts to Conceptualise National Law Issues as Incidental Issues


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


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


 5.2.5 Contribution of Conceptualising National Law Issues as Incidental Issues


 5.3 Contract Interpretation as the Incidental Issue in Investment Treaty Arbitration


 5.3.1 A Legal Issue


 5.3.2 A Separable Legal Issue


 5.3.3 Playing 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


 5.3.4 Posing a Question about the Applicable Law


 5.3.5 Additional Consideration: Cases with Compound Jurisdiction


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


 5.4.1 Jura Novit Curia


 5.4.2 Expert Testimony


 5.4.3 Why 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