International Investment Arbitration: Substantive Principles, First Edition

Interactions between Foreign Investment Treaties and Customary International Law

“…19 Thus, the treaties, either multilateral or bilateral, can create CIL rules if the elements of custom, as discussed, would be present and the investment treaties including bilateral treaties (BITs) are not exceptions as "no treaty can exist in isolation from general international law". 20 At the same time, it must be reminded that "there is no presumption that a series of treaties gives rise to a new rule of customary law, though this does not preclude such a metamorphosis occurring in particular cases". 21 Besides, the interpretation of the treaty may be obtained beyond the scope of the treaty.…”

Evolving Interpretation of Multilateral Treaties: ’acts Contrary to the Purposes and Principles of the United Nations’ in the Refugee Convention

“…An obvious comparison can be made here with the use of 'persecution' in Article 1A(2) of the Convention, 123 with 'private and family life' in Article 8 ECHR 124 or indeed, from an entirely distinct field of international law, 'fair and equitable treatment' in bilateral investment treaties. 125 In each case, the precise meaning to be given to the term used is not immediately apparent, but courts and tribunals nevertheless interpret and apply these terms according to the VCLT rules, including the context in which the instrument was adopted, its object and purpose, and other relevant rules of international law. Treaty provisions may be deliberately imprecise, reflecting political compromise; 126 also, as discussed above, use of a general or imprecise term allows for an evolving interpretation of that term, to reflect developments in international law.…”

Case Comment : Ioan Micula And Others v. Romania

“…30 In the Tribunal's view, such a promise or assurance must be attributed to a competent governmental body, but it need not be specific (contrary to a commitment which enjoys protection under the umbrella clause). 31 The Tribunal based its findings on the fact that: (i) the purpose of 1998 Ordinance was to attract investment in underdeveloped regions, (ii) in order to qualify for the incentives, the Claimants needed to meet specific criteria and to assume certain obligations (in particular, relating to the period of investment, employment, reporting), (iii) the Certificates were issued for a period until 1.4.2009.…”