Originally from Investment Treaty Arbitration and International Law - Volume 3

The international investment regime fascinates international lawyers because, at long last, it finally permits us to engage in the parsing of cases. International lawyers have always had a tough time convincing people that our subject was really law because for a long time we had so little of what makes real lawyers salivate: namely, real judicial decisions. For a long time we had one or two decisions from the International Court of Justice a year to discuss; after 1994, we had in addition perhaps a dozen WTO Appellate Body decisions, along with a trickle of juicy international criminal cases dealing with mass murderers from the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda. But today we have a seemingly endless supply of arbitral decisions emerging virtually daily, heaps more than trade lawyers ever had and even more than those available to mass atrocities lawyers. Even though we seem to have (alas) a deep supply of mass atrocities around the world, we apparently have far more investors willing to make claims than international prosecutors willing to issue indictments.

The international investment community is so happy that it has so many real judicial decisions subject to real enforcement – putting certain prominent Argentina outlier cases of non-compliance to one side – that it is understandable if we obsess about the cases and the investor-state arbitration system that gives rise to them. Small wonder that at conferences like this we focus on interpretative models for treaty interpretation in dispute settlement, on whether inconsistent arbitral decisions are a problem, or on ways to improve the legitimacy of ICSID arbitration through better annulment procedures, the establishment of an appellate body, changes to the relevant procedural rules, or by paying closer attention to conflicts rules.

My intent here is to remind us that the subject of this conference, interpretation in investment arbitration, is ultimately about the interpretation of specific treaties – and that if those treaties change, it is likely that their interpretation will as well. My subject then is not about the evolving investment caselaw – fascinating as it is – nor about any of the proposals to lead to better reasoned arbitral decisions. I will address instead another way that interpretation in the investment regime evolves: through changes in investment treaties.