Harmonization of International Investment Law: Illustrations from the Case of Suez, Sociedad General de Aguas de Barcelona S.A., Vivendi Universal S.A. and AWG Group v Argentine Republic

Abstract

Arbitral tribunals charged with deciding investment treaty disputes have sought to harmonize the interpretation of those treaties in such a way that one can begin to speak of an emerging jurisprudence constante on certain issues of international investment law. One recent case which clearly demonstrates this trend for harmonization is Suez, Sociedad General de Aguas de Barcelona S.A., Vivendi Universal S.A. and AWG Group v Argentine Republic. This note considers how the claims made by the investors were dealt with by the tribunal. In particular, it will pay attention to whether or not differences in the language of the three BITs at issue in this case had any impact on the decision of the tribunal. It will also consider how the tribunal used previous investment arbitral awards in its reasoning. It is argued that the most convincing way of harmonizing the substantive standards of the three BITs would be to consider them as incorporating customary international law standards, as was implicitly done with the expropriation standard in this case. In contrast, the reasons for following previous arbitral awards are less convincing when the substantive rules being applied are interpreted as an autonomous treaty standard. In these circumstances, interpretation is not an appropriate technique for harmonizing international investment law, given inherent differences in the language and context of investment treaties. It does not follow that harmonization cannot occur, however. The MFN clause could be used to that a better standard of treatment is applied to all investors, as was done in relation to the procedural prerequisites in this case.