Of Moving Frontiers and Notes Verbales: Ascertaining the Intentions of State Parties in BITs (Sanum Investments Ltd v. Government of the Lao People’s Democratic Republic [2016] SGCA 57)

Abstract

The 1969 Vienna Convention on the Law of Treaties (the VCLT) provides an interpretive framework to ascertain State parties’ respective treaty obligations. In bilateral investment treaties (BITs), State parties mutually undertake to protect investments made by the nationals of the other contracting State. In its decision in Sanum Investments Ltd v. Government of the Lao People’s Democratic Republic [2016] SGCA 57, the Singapore Court of Appeal held that a Macanese investor was a protected national under a BIT between the Lao People’s Democratic Republic (Laos) and the People’s Republic of China (China). This ruling was made against the views of Laos and China, expressed through an exchange of Notes Verbales after the dispute arose, that the BIT did not coverMacau. This article examines the Court’s use of an evidentiary ‘critical date rule’ to exclude the consideration of these Notes Verbales. It questions whether the Court’s approach coheres with the principles of treaty interpretation encapsulated in the VCLT.