Study On The Interpretation Of International Investment Treaties By Domestic Courts

Nearly 40% of known investment dispute cases are conducted under non-ICSID arbitration procedures.Since international investment treaties contain strict jurisdictional requirements,a common defense raised in these proceedings is the lack of jurisdiction of the arbitral tribunal.When an arbitral award is submitted to the court of the place of arbitration for setting aside or requesting the court of the place of enforcement not to enforce the arbitral award on the ground that the arbitral tribunal does not have jurisdiction.As an important subject of treaty interpretation under the Vienna Convention on the Law of Treaties,the domestic court’s review of the jurisdiction of the arbitral tribunal at this point essentially constitutes an interpretation of the investment treaty at issue in the investment dispute.It is particularly important at this stage to discuss how domestic courts can reasonably conduct their activities in interpreting investment treaties involved in investment disputes.This article takes the perspective of treaty interpretation by domestic courts that occurs in the setting aside and enforcement proceedings after an investment arbitral award is rendered,and first explains the general rules of treaty interpretation and clarifies the guiding role of the rules of treaty interpretation of the Vienna Convention on the Law of Treaties.It is analyzed that treaty interpretation by domestic courts mainly focuses on "inward-looking" treaties(including vertical and transnational rules),which naturally covers international investment treaties in their scope of interpretation.It further analyzes the differences between domestic courts and international investment arbitral institutions as subjects of treaty interpretation,and points out the problems faced by domestic courts,as non-disputing parties,in reviewing jurisdictional challenges to arbitral tribunals: should they rely on the rules of interpretation of public international law or mainly on national perspectives? On what standard of review should domestic courts examine and interpret the question of the tribunal’s jurisdiction?At this stage,the essence of the domestic court’s response to the jurisdiction of the arbitral tribunal essentially forms the interpretation of the investment treaty in question,and it is particularly important to explore how the domestic court should properly interpret the treaty.Before analyzing the interpretation of specific provisions by domestic courts,it cannot be ignored that domestic courts,as non-disputing parties,are also faced with the question of the "admissibility" of the arbitral tribunal’s jurisdiction,even though domestic courts have taken a Despite the strong interpretative attitude of the domestic courts to clarify the basis of their jurisdiction,the challenge still appears frequently in specific cases due to their bias towards the commercial arbitration model of review,the lack of direct authority from the investment treaty,and the fact that the citation and reference between different jurisprudence do not provide a reasonable basis to convince the disputing parties.Based on the Sanum case and Occidental Petroleum Corp.v.Ecuador,this article identifies the "ab initio" standard of review currently upheld by domestic courts on the jurisdiction of arbitral tribunals,and further analyzes the interpretation of specific treaty provisions under this standard.As for the domestic courts themselves,the bias toward expansive interpretation of treaties and the instability in the application of the elements of interpretation of the Vienna Convention on the Law of Treaties is also one of the issues of concern.Given this,the domestic courts should improve their professionalism in treaty interpretation and reasonably respond to the challenges to their jurisdiction.At the same time,as another subject of concern in the treaty interpretation activities of domestic courts,the relevant Contracting States should also pay attention to the conduct of non-ICSID arbitration and the choice of arbitration venue,and guide the Contracting States on how to guide the investment dispute settlement bodies in their investment treaty interpretation activities to promote and achieve a controlled and reasonable interpretation of their investment treaties.They should also actively explore the issue of how to guide the investment dispute resolution bodies in their interpretation of their investment treaties,and promote and achieve a controlled and reasonable interpretation of their investment treaties,to recover the reins of treaty interpretation and achieve the purpose of protecting the interests of their countries and their investors.