Contract Interpretation in Investment Treaty Arbitration

Yuliya Chernykh, Ph.D. University of Oslo, is Associate Professor of the Inland Norway University of Applied Sciences. She is Chartered Arbitrator and an author of various publications in the fields of international law, international arbitration and legal history.

• ForewordAcknowledgementsList of Figures and TablesAbbreviationsIntroductionpart 1Setting the Scene1 Overview of Contract Interpretation in Investment Treaty Arbitration1.1 Interpretative Material: Contracts and Contractual Provisions1.2 Interpretative Occasions1.2.1 Jurisdiction1.2.2 Attribution1.2.3 Expropriation1.2.4 Fair and Equitable Treatment1.2.5 National Treatment and Most-Favoured-Nation Treatment1.2.6 The Umbrella Clause1.2.7 Compensation1.3 Procedural Setting1.4 Patterns for Contract Interpretation1.5 Conclusionpart 2Defining a Relevant Legal Frame2 National Laws and Contract Interpretation2.1 What Do We Know: Comparative Scholarship2.2 The Concept of Contract Interpretation2.3 Regulation2.4 Interpretative Approaches: Good Faith and Predictability2.5 Limits of Subjective-Objective and Other Dichotomies2.6 Conclusion3 International Law and Contract Interpretation3.1 The Concept of International Law3.2 Treaties3.2.1 Rules on Treaty Interpretation3.2.2 International Investment Agreements3.2.3 Uniform Private Law Conventions3.3 Customary International Law3.4 General Principles of Law3.5 Subsidiary Means for Determining the Content of International Law3.5.1 Judicial Practice3.5.2 Scholarly Publications3.6 Conclusionpart 3Enabling National Law4 The Power of Treaty-Based Tribunals to Interpret Contracts4.1 Theory and Foundation4.1.1 The Concept and Types of Tribunal Powers4.1.2 Contract Interpretation as an Inherent Power4.1.3 Contract Interpretation as an Implied Power4.2 Exercise4.2.1 Contract Interpretation or Fact-Finding4.2.2 Contract Interpretation or Doctrinal Assessment of Contractual Provisions under International Law4.2.3 Deference4.3 In a Broader Context4.3.1 Similar Powers4.3.1.1 The PCIJ4.3.1.2 The ICJ4.3.1.3 The ECtHR4.3.2 Unsuitable Analogies4.4 Conclusion5 Contract Interpretation as the Incidental Issue5.1 Incidental Issues in Private International Law5.2 National Law Incidental Issues in Investment Treaty Arbitration5.2.1 The Predisposition to Conceptualise Incidental Issues5.2.2 Scholar Attempts to Conceptualise National Law Issues as Incidental Issues5.2.3 Other Supporting Considerations (1): Direct Conceptualisation – National Law Incidental Issues before Other Public International Law Courts5.2.4 Other Supporting Considerations (2): Reverse Conceptualisation – Public International Law Incidental Issues in Domestic Contexts5.2.5 Contribution of Conceptualising National Law Issues as Incidental Issues5.3 Contract Interpretation as the Incidental Issue in Investment Treaty Arbitration5.3.1 A Legal Issue5.3.2 A Separable Legal Issue5.3.3 Playing a Subsidiary Role to the Principal Cause of Action5.3.3.1 The Case of Contract Termination5.3.3.2 The Case of Implied Terms5.3.4 Posing a Question about the Applicable Law5.3.5 Additional Consideration: Cases with Compound Jurisdiction5.4. National Law in Operation through the Concept of an Incidental Issue5.4.1 Jura Novit Curia5.4.2 Expert Testimony5.4.3 Why Does It Matter?5.5 ConclusionGeneral ConclusionFuture ResearchList of AnnexesAnnexesAnnex I All Known Treaty-Based Cases as of 30 January 2019Annex II Cases Excluded from Assessment (Publicly Unavailable Awards and Decisions, or Available Awards and Decisions in Languages Other than English or Russian)Annex III Cases with Publicly Available Awards and Decisions in English or Russian Language (the Basis for Assessment)Annex IV Cases with Elements of Contract InterpretationAnnex V Cases with the Application of National Law to Contract Interpretation (Interpretative Rules of National Laws)Annex VI Cases with the Application of National Law to Contract Interpretation (Interpretation in Light of Various Other Rules of National Laws)Annex VII Model BITs as of 30 January 2019Annex VIII List of Analysed BITsAnnex IX Provisions of Some Relevance for Contract Interpretation in the Selected Uniform Private Law ConventionsAnnex X IIAs with Reference to Conflict of Laws of the Host StateBibliographyIndex