Investor Presentaiton
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INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
directs in Article 1112 that "[i]n the event of any inconsistency
between this Chapter [on Investment] and another Chapter, the
other Chapter shall prevail to the extent of the inconsistency."
N. States' involvement in the interpretative process
The application of IIAs in an increasing number of cases has
exposed a problem that the often-vague IIA provisions can give rise
to inconsistent, sometimes contradictory, interpretations. An
interpretation of a particular obligation by an arbitral tribunal may
be contrary to the parties' original intentions in drafting the IIA. To
prevent misconstruction of IIA norms by arbitral tribunals, IIA
parties may provide authentic and authoritative interpretations of
their IIAs.
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Some IIAS have introduced mechanisms for the contracting
parties to exercise a more active role in interpreting IIA obligations
and gain increased control over interpretation issues. This has been
done in a number of ways, as discussed below."
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1. Joint interpretation by the contracting parties
The contracting parties can provide a joint interpretation of the
IIA regardless of whether the IIA expressly authorizes them to do
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Interpretation needs to be distinguished from treaty amendments.
Interpretation is, in principle, confined to clarifying the terms of a treaty
and not aimed at filling them with a new meaning. In contrast, amendments
may add to or modify existing obligations and typically require formal
adoption both at the international level and through domestic ratification.
In practice, however, the line between interpretation and amendment can
be sometimes difficult to draw.
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For a more in-depth treatment of this issue, see UNCTAD, 2011b.
UNCTAD Series on International Investment Agreements IIView entire presentation