RELYING UPON PARTIES' INTERPRETATION IN TREATY-BASED INVESTOR-STATE DISPUTE SETTLEMENT: FILLING THE GAPS IN INTERNATIONAL INVESTMENT AGREEMENTS

摘要

International Investment Agreements (IIAs) were designed for the promotion and protection of foreign investors and their investments. The whole idea of negotiating IIAs was to attract foreign investors by enhancing security and creating a depoliticized environment, which includes the establishment of an impartial dispute settlement mechanism. Although IIAs focus primarily on investors' rights and expectations, host countries also have legitimate expectations when subscribing to an investment treaty, such as stimulating economic development within the limits of their public policy. Those expectations might be substantially diminished by the lack of clarity and/or gaps in the treaty text. Moreover, experience has shown the necessity of preserving host states' regulatory space for taking public policy measures, which might not have been foreseen in the investment treaties. This situation generates unsteadiness in the investors' and host states' rights, appealing for the rebalance of the status quo. As IIAs are the applicable law in treaty-based investor-state dispute settlement (ISDS), arbitral tribunals have turned to the task of interpreting the text. Such interpretation accomplished by arbitral tribunals might in fact surpass the tribunals' legitimate power to settle the disputes, creating inconsistent and conflicting decisions. This Note advocates for states taking an active role in interpreting IIAs and filling the gaps during an ISDS, even in the absence of specific rules governing the intervention of non-disputing parties to the ISDS. In this sense, treaty parties' intervention would be addressed from different perspectives as a mechanism to be used by arbitral tribunals during an ISDS. This Note concludes that the recourse to treaty parties' interpretation by arbitral tribunals is essential for rebalancing investors' and host states' rights and preserving the legitimacy and credibility of the ISDS system.