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State-to-State dispute settlement and the interpretation of investment treaties

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  • David Gaukrodger

    (OECD)

Abstract

Many governments have expressed concerns about the uncertainty linked to the perceived inconsistency of treaty interpretation in Investor-State dispute settlement (ISDS). An OECD-hosted intergovernmental investment roundtable has been considering a range of tools through which governments can take action to improve the interpretation of investment treaties and some participants suggested consideration of the potential role of State-to-State dispute settlement (SSDS) in this area. This paper responds to this interest. The first part sets forth a rough typology of possible SSDS claims under investment treaties. The second part outlines policy issues relating to a possible type of SSDS claim which would be most relevant to the question of interpretation, for so-called “pure” interpretation of an investment treaty. The analysis seeks to identify policy reasons why governments might wish to provide for or exclude the power to obtain pure interpretations of investment treaties from SSDS tribunals or to make it broad or narrow. The final section examines SSDS cases under investment treaties addressing claims for interpretation.

Suggested Citation

  • David Gaukrodger, 2016. "State-to-State dispute settlement and the interpretation of investment treaties," OECD Working Papers on International Investment 2016/3, OECD Publishing.
  • Handle: RePEc:oec:dafaaa:2016/3-en
    DOI: 10.1787/5jlr71rq1j30-en
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    File URL: https://doi.org/10.1787/5jlr71rq1j30-en
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    More about this item

    Keywords

    bilateral investment treaties; foreign investment; international arbitration; international economic law; international investment; international investment agreements; international investment law; investment treaties; investor-state dispute settlement;

    JEL classification:

    • F02 - International Economics - - General - - - International Economic Order and Integration
    • F13 - International Economics - - Trade - - - Trade Policy; International Trade Organizations
    • F21 - International Economics - - International Factor Movements and International Business - - - International Investment; Long-Term Capital Movements
    • F23 - International Economics - - International Factor Movements and International Business - - - Multinational Firms; International Business
    • F53 - International Economics - - International Relations, National Security, and International Political Economy - - - International Agreements and Observance; International Organizations
    • K23 - Law and Economics - - Regulation and Business Law - - - Regulated Industries and Administrative Law
    • K33 - Law and Economics - - Other Substantive Areas of Law - - - International Law
    • K4 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior
    • K41 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - Litigation Process

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