Arbitral interpretation of investment treaties : problems and remedies for the debate on "legitimacy"

Résumé

The last couple of decades have seen a considerable increase in the submittal of investment claims to Arbitral Tribunals – a process which has often been linked to the “proliferation” of investment treaties. Alongside, a debate on the so-called “legitimacy” of the Investor-State dispute settlement mechanism not only emerged (and prompted calls for reform) but also refuses to go away. Treaty interpretation has not been in the forefront of discussion. Authorized (“authoritative”) interpretation – as performed by Arbitral Tribunals – is perhaps one of the issues of least (if any) concern. This Article explores the distinction between authentic and authorized interpretation vis-à-vis the multiple issues arising from vesting excessive significance in authorized interpretations of Investor-State Arbitral Tribunals, in the events in which States Parties to the relevant investment treaty do not have opposing views on the construction of a conventional clause. Drawing on the referral to the notable cases in which this issue has arisen, this Article will present a few recommendations.