| Abstrakt: |
Most Favored Nation (MFN) Treatment in investor-state arbitration is a contentious issue. Although there is much tension between the “text” and the “intent” camps, it is largely beyond dispute that the clear and unambiguous text— the plain meaning—of a treaty trumps background principles of international law. This is entirely in keeping with the axiom in investor-state arbitration that even the default rules of an arbitral forum such as the International Centre for Settlement of Investment Disputes (ICSID) or United Nations Commission on International Trade Law (UNCITRAL) may be superseded by the specific terms of a treaty. Party autonomy’s privileged status in investor-state arbitration explains this phenomenon. Unlike the jurisdictional rules in United States federal courts—loosely described as top-down because they are derived from the United States Constitution, laws, or the pertinent federal rules of appellate, criminal or civil procedure—investor-state arbitration works more in a bottom-up manner. In the latter, specific signatories to a treaty want primacy over what the less granular concepts of international law or even forum rules indicate. In this respect, treaty interpretation in investor-state arbitration differs from the way legal instruments tend to be construed by United States’s federal courts, where the parties’ agreement alone may not usually displace the core rules of how the court operates or its Article III jurisdiction to resolve a case or controversy. That said, there is a sense in which treaty interpretation in investor-state arbitration is similar to the way that legal instruments are interpreted by U.S. federal courts: both debate whether to give priority to the intentions of the parties over the plain text and vice versa. What emerges is that, among the general principles of international law, there are hierarchically organized categories. Party autonomy belongs at or near the top where treaty interpretation is concerned— certainly eclipsing any role of general international law principles or even forum rules. Another important proposition—also derived from party autonomy—is that where a treaty’s text is silent on the matter (or it so directs), an MFN guarantee imports the substantive and jurisdictional benefits afforded, in theory or reality, third parties by any of the signatories of the treaty in question. This is true even where such benefits have not actually been bestowed upon an identifiable thirdparty investor. The mere possibility that a third-party investor might get a better deal from any of the signatories than each other’s investors is enough to constitute an MFN breach. In 2008, the United States Supreme Court held that a non-self-executing treaty is not enforceable federal law that can trump states’ prerogative of executing their lawfully attained judgments. The case was Medellín v. Texas. 1 In Medellín, the principal question concerned whether the International Court of Justice’s (ICJ) determination that the Vienna Convention on the Law of Treaties (VCLT) precluded the application of a country’s default rules (concerning consular access to the foreign arrestees within a State) must be given domestic legal effect by federal and state courts within the United States.2 Since the norm was not “self-executing,” it could not be given operative legal effect, the Supreme Court held.3 This keeps alive the possibility that a “treaty still may be selfexecuting if its terms indicate that the President and Senate so intended.”4 Interestingly, the Supreme Court in Medellín reaffirmed the Court’s willingness to utilize interpretive tools beyond the plain text of treaties but only when the text is ambiguous. The Medellín Court observed that, although treaty interpretation should “begin with [the treaty’s] text,” a ratified treaty is essentially “an agreement among sovereign powers.”5 Fundamentally, a treaty is a contract— as the Supreme Court has repeatedly observed.6 Remarkably, Justice Breyer, who dissented in Medellín, pursued a contract analogy to explain why, in his view, the relevant treaties should be analyzed in a particular way.7 To the Court, this meant that it was entitled to consult the “negotiation and drafting history of the treaty as well as ‘the postratification understanding’ of signatory nations.”8 In the Supreme Court’s own words, treaty “interpretation normally is, like a contract’s interpretation, a matter of determining the parties’ intent.”9 This article points out that where investor-state dispute settlement (ISDS) is concerned, it is ordinarily the treaty that will prevail over the general principles of international law and most forum rules. This is true of both jurisdictional matters and substantive claims. The general principles pertinent to this inquiry often are derived from customary international law, opinio juris, and judgments and awards of international tribunals. [ABSTRACT FROM AUTHOR] |
