The Role of Travaux in Interpreting BIT Provisions: Are Tribunals Over-Prepared to Resort to Preparatory Works?

Abstract

Abstract While multilateral investment treaties have formed the centrepiece of much academic discourse, an uncharacteristic literary silence has eclipsed the issue of interpretation of bilateral investment treaties under the scheme of the Vienna Convention on the Law of Treaties (VCLT). This article travels this untraversed territory by revisiting the basics of the principles encapsulated in the hierarchical set-up of Articles 31 and 32 VCLT, and juxtaposing this foundational set-up against its frequent oversights by investment tribunals. These oversights are exemplified by the divergent interpretative analyses afforded to umbrella and most-favoured-nation clauses, and emanate from a premature resort to the travaux préparatoires of investment treaties under Article 32 VCLT. Ultimately, the article argues that a proper application of the VCLT would go a long way in eliminating the contradictions tainting the understanding of the aforesaid clauses.