Consistency Of Treaty Interpretation In International Investment Arbitration

“Inconsistentency of awards” is a criticized phenomenon in international investment arbitration,and even raises questions about its “legitimacy”.By analyzing the typical cases of inconsistency,it can be found that the arbitral tribunals have ignored the VCLT interpretation rules with the status of international customary law for a long time in the reasoning process.The “inconsistency of awards” in international investment arbitration is only the appearance,and the main reason behind it is that the arbitral tribunals use different interpretation methods and rules.However,the issue of“treaty interpretation” has not been paid enough attention for a long time,whether in theoretical research or the reform work being carried out by the United Nations Commission on Trade and Development.For the ISDS mechanism in the process of reform,treaty interpretation can become a clue to connect various reform topics,and can also serve as a bridge between procedural rules and substantive rules.Attention should be paid to the research on treaty interpretation in international investment arbitration,and carry out value balance and path refinement work in combination with the goal of reform.The “uncertainty” mainly reflected by inconsistent awards is an objective reality in the general legal system.It is indeed a kind of vanity to pursue the “only correct answer” of legal formalism,but if the phenomenon of inconsistent awards continues to develop,it will further aggravate the uncertainty of the system.Therefore,we should turn to seek a more realistic certainty,that is,the “predictability” discussed by legal realists,pay more attention to the dynamic process of producing results,fully consider the “acceptability” of the parties and even outsiders,and shift from the pursuit of consistency of awards to the pursuit of consistency of treaty interpretation.In difficult cases,“accuracy” is more difficult to objectively evaluate than “predictability”.Under the background of questioning the impartiality and independence of the arbitral tribunal at this stage,it is also very difficult to achieve “accuracy”.Further considering the fragmentation and ambiguity of rules and the reform prospect of ISDS mechanism,in the process of adjudicating cases at this stage,“Predictability” should be placed above“accuracy”.In addition,under the background that the “legitimacy” of ISDS mechanism has been heavily doubted,and even some countries have withdrawn from the mechanism,“predictability” is very important to improve the “legitimacy” of ISDS mechanism at this stage.In terms of the fragmentation and reform direction of international investment arbitration,treaty interpretation should also pursue consistency as far as possible.Because “predictability” ensures investors’ stable expectation in an unfamiliar environment and the basic order of international investment.At the same time,the pursuit of “predictability” is an important way to solve the fragmentation problem,which is conducive to promoting the development of the international investment system in the direction of normalization.In the construction of the rule system of treaty interpretation,firstly,the public law attribute and interest balance demand of international investment arbitration require the treaty interpretation to be preceded by the interpretation of the Contracting States.If there is “consistency” of the origin in the investment treaty,that is,the clear interpretation of the relevant provisions by the Contracting States,the arbitral tribunal should put this interpretation first when interpretating the treaty.This is not only in line with the public international law attribute of the system,but also conducive to balancing the interests of the host country.In the current international investment arbitration proceedings,this consistency of origin often needs subsequent mechanisms such as the Commission set up by the USMCA.Secondly,the most prominent problem in the interpretation of international investment treaties is that the arbitral tribunal has its own way and lacks clear and unified interpretation rules.With the status of international customary law and the text characteristics of VCLT interpretation rules suitable for international investment treaties,international investment arbitration should strengthen the correct application of VCLT interpretation rules,introduce the “soft precedent”system,and take three phased steps to deepen the understanding in the analysis,discussion and critique of similar cases between different arbitral tribunals,It forms an implicit binding force on the arbitrariness of arbitrators.Based on its moral responsibility,the arbitration tribunal should actively guide the clarification of rules and prudently gradually promote the formation of consensus.Finally,other interpretation rules,tools and methods other than VCLT should be placed under VCLT interpretation rules in principle,applied carefully to limit the arbitrariness of the arbitral tribunal.In the pursuit of consistency in treaty interpretation,the creation of the appellate mechanism can promote the normalization of treaty interpretation in international investment arbitration by correcting the errors of various arbitral tribunals in the understanding of treaty interpretation methods and specific provisions.At the same time,based on its professionalism and independence,it can clarify and improve the rules within the whole system on key provisions,and ultimately promote the coordination and unification of the rules of international investment treaties.In contrast,the establishment of the international investment court is more difficult,and there is no obvious advantage over the appellate mechanism in the pursuit of consistency.For other procedural improvement rules like consolidation of arbitrations,the pursuit of consistency in treaty interpretation itself is an important goal of the relevant scheme.To better achieve this goal,the specific scheme design needs to be further refined.More importantly,the current reform of international investment arbitration should not only focus on the new mechanisms,new procedures or new rules advocated by each party,but should always pay attention to the international investment legal system itself,make full use of the consistent instrumental value of pursuing the consistency of treaty interpretation,and try the best to improve the interpretation rules of international investment arbitration,so as to finally implement the reform plan.At present,countries and regions have put forward different paths for the reform of the ISDS mechanism,and there are many differences among them.In addition to the interest differences and the struggle for the right to speak caused by international politics,one of the hidden reasons for the different opinions on each path is that the mechanism of the reform plan,the establishment of rules and procedures are fixating more on the issue of “balance of interests”,only find the superficial inconsistency of awards,and lack attention to the rules of treaty interpretation and the international investment legal system itself.On the one hand,the reform of ISDS mechanism should overcome the current problems,on the other hand,it should also move towards the goal of sustainable and continuous optimization of the system.The very first step is to shift from the consistency of awards to the consistency of treaty interpretation.As a country that does not have a dominant voice in international law,China cannot drift into the mire of the “US-European Conflict”.We should maintain a clear understanding,strengthen the research on the basic issue of the interpretation rules of international investment treaties,and make substantive contributions to the development of the ISDS system,which would also continuously strengthen our ability to protect the interests of the state and Chinese investors through international law.