Investor Presentaiton
186
INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
States'
involvement in
the
interpretative
process
far-reaching approach would be to stipulate that
in case of a conflict between the IIA and a host
State's international commitments under a
multilateral agreement in another policy area,
such as environment and public health, the latter
shall prevail.
Whatever the approach, the main objective of
such a provision would be to help arbitral
tribunals take into account other international
commitments in order to ensure, as much as
possible, harmonious interpretation of IIA
provisions with other aspects of international law.
Enhancing State control over interpretive
matters can help prevent tribunals from giving
particular provisions unexpected meanings. As a
general rule, the more the contracting parties are
involved in the interpretation of the treaty, the
easier it should be for a tribunal to apply the
treaty correctly.
Such enhancement of control can be achieved
in IIAs by: (1) reiterating the right of the
contracting parties to give joint interpretations of
the IIA that would be binding on tribunals
(including through joint commissions or
committees, if established by the treaty); (2)
obliging tribunals to refer certain (sensitive or
specialized) matters to the contracting parties or
bodies designated by them for a preliminary
determination; (3) allowing the non-disputing
contracting party (i.e. the home State of the
investor) to have access to dispute-related
documents, to make written submissions and
UNCTAD Series on International Investment Agreements IIView entire presentation