Originally from  Jurisdiction in Investment Treaty Arbitration - IAI Series No. 8

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INTRODUCTION

Over the last two decades, the increase in the number of investment treaty disputes has generated a growing body of jurisprudence in the field of international investment law.
When applying international investment agreements (“IIAs”)  and in particular bilateral investment treaties (“BITs”), international arbitral tribunals have been confronted with the task of interpreting provisions which often tend to be drafted in broad and imprecise language.  In this context, an issue that frequently attracts the attention of academics and practitioners is the elucidation of State intention when negotiating and entering into IIAs.  This subject can be approached from two different angles.

On the one hand, from a legal point of view, the elucidation of the parties’ intention when negotiating an IIA often becomes relevant in the context of the adjudication of a dispute.  The exercise then entails a teleological interpretation of the text of the applicable international instrument (including the preamble) in accordance with Articles 31 and 32 of the Vienna Convention on the Law of the Treaties (“Vienna Convention”).   On the other hand, this subject can be approached by analyzing the political economy that determines State intention.