Originally from Investment Treaty Arbitration and International Law - Volume 3

IAN LAIRD: Todd Weiler and I, as co-chairs, welcome you to this Third Annual Juris Conference on Investment Treaty Arbitration: A Debate and Discussion - Interpretation in Investment Arbitration.

I wanted to start off today making a dedication to a friend of many of ours, a person that was well known to everyone in the investment arbitration community, the late Professor Thomas Wälde. Thomas was an extraordinary individual for bringing together the investment arbitration community and certainly practitioners in many other areas of international law. One of the issues that he was most interested in over the last few years was the very specific issue of interpretation in investment arbitration and how, in this growing and developing area of international law, the specific rules and maxims and the Vienna Convention on the Law of Treaties, are all applied in the developing case law. Thomas was a man of varied interests and he always liked to draw on literature in his writings, so I also want to include an appropriate quote to set the tone for this conference. One of my favorite passages occurs in Lewis Carroll’s Through the Looking Glass, the second Alice in Wonderland book. Alice has gone through the looking glass and she is having a conversation with Humpty Dumpty about the meaning of words, which certainly caught my interest, and it goes like this:

‘When I use a word’, Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean – neither more nor less.’

‘The question is’, said Alice, ‘whether you can make words mean so many different things.’

‘The question is’, said Humpty Dumpty, ‘which is to be master – that’s All.’

This conversation suggests a lot of issues – a number of which are going to come up today – and certainly our first panel will get into some of them concerning the Vienna Convention on the Law of Treaties, but really it goes to the question of why a particular word is being used and by whom, and the question of multiple meanings of words or phrases always comes up and the challenges that brings.

In one of the last papers that Thomas was drafting before he passed, he addressed some of these issues and, on the topic of interpretation in investment law, he basically concluded that there is confusion rather than clarity prevailing in today’s practice of investment arbitration notwithstanding the reliance on the Vienna Convention rules. Thomas saw that there was indeed a great challenge in dealing with these issues in the context of our growing field. And part of his conclusion was that these interpretive issues have not been well examined and I think, if you look in the literature, there has not been a lot of focus directly on the topic, although we talk around it a lot in general terms.