Is Provisional Application on the Rise in International Investment Agreements? The European Union’s Recent Treaty Practice and the Curious Case of Von Pezold

Abstract

As the Vienna Convention on the Law of Treaties (vclt) approaches its 50th birthday, the peculiar phenomenon of provisional application appears to be on the rise. Although previously confined, in the sphere of international investment agreements (iias), to the context of the Energy Charter Treaty, provisional application is increasingly seen in European Union multilateral investment treaties. Furthermore, the recent decision of Von Pezold has explored the open-ended nature of Article 25(1)(b) vclt, and the potential range of iias to which provisional application is possible. Subject to textual interpretation authorized by Articles 31 and 32 vclt, found in Kardassopoulos, Petrobart and the Yukos Oil tribunals, provisional application is a legal regime that can very easily lead towards unintended results. This article suggests the solutions of more careful syntax and grammar, and limiting clauses and changes in legal processes, to further mature provisional application jurisprudence.