INTERPRETING TREATIES FOR THE BENEFIT OF THIRD PARTIES: THE 'SALVORS' DOCTRINE' AND THE USE OF LEGISLATIVE HISTORY IN INVESTMENT TREATIES

摘要

In confrontations in particular disputes and especially in cases referred for third-party decision, it is common for one side to seek to overcome the prima facie "ordinary meaning" of a text by recourse to various supplementary means of interpretation. Because international decision processes are nonjury, the common law's elaborate code regulating admissibility of evidence has no analogue in international law; international courts and tribunals tend to allow the introduction of almost any material adduced by the parties but only occasionally to rely on it in their decision. Of late, however, there seems to be an increasing tendency for international investment tribunals to admit and rely on travaux preparatoires in their own treaty interpretations. The ultimate ex cathedra endorsement of this trend by an especially distinguished group of jurists, whose imprimatur all but ensures its installation as a rule of international law, appears in a recent decision of an ad hoc committee operating under Article 52 of the ICSID Convention. In Malaysian Historical Salvors v. Government of Malaysia, which was decided on April 16, 2009, the ad hoc committee said, "In any event, courts and tribunals interpreting treaties regularly review the travaux preparatoires whenever they are brought to their attention; it is mythological to pretend that they do so only when they first conclude that the term requiring interpretation is ambiguous or obscure."