Investment Awards and the Rules of Interpretation of the Vienna Convention: Making Room for Improvement
ABSTRACT: Against the background of mounting dissatisfaction with investor-State arbitration for the lack of consistency in the interpretation of treaties and the poor reasoning of arbitral awards, this article explores alternatives to improve the decision making process of arbitral tribunals by looking at the interpretation of treaties and the role that the rules of interpretation of the Vienna Convention play in this process. It argues that these rules constitute a necessary starting point in the effective interpretation of treaties and offer a valuable tool for creating more predictable and better-reasoned awards.
However, the application of the rules is not a straightforward exercise, and tribunals face important challenges that urgently need to be addressed. Through a non-exhaustive analysis of investment decisions, the author identifies some of those challenges and proposes some ideas for action that combine capacity-building efforts (including for arbitrators and counsel) with public scrutiny of awards and academic contributions to support practitioners, including a catalogue of interpretative methods and a manual to guide interpretation in investor-State arbitration.