1  Sinclair, The Vienna Convention on the Law of Treaties (1984), at 153. See also Gardiner, Treaty Interpretation (2008), at 6 (commenting that the Convention Rules are not ‘an exclusive compilation of guidance on treaty interpretation, other skills and principles that are used to achieve a reasoned interpretation remaining admissible to the extent not in conflict with the [Convention Rules]’).

2  See, e.g. Gill, ‘Is There a Special Role for Precedent in Investment Arbitration?’, 25 ICSID Review-FILJ 87 (2010); Reed, ‘The De Facto Precedent Regime in Investment Arbitration: A Case for Proactive Management’, 25 ICSID Review-FILJ 95 (2010), particularly the references to other articles at n. 3; Douglas, ‘Can a Doctrine of Precedent Be Justified in Investment Treaty Arbitration?’, 25 ICSID Review-FILJ 104 (2010); Weeramantry, ‘The Future Role of Past Awards in Investment Arbitration’, 25 ICSID Review-FILJ 111 (2010); Sureda, ‘Precedent in Investment Treaty Arbitration’, in Binder et al. (eds), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer (2009), 830; and Commission, ‘Precedent in Investment Treaty Arbitration’, 24 Journal of International Arbitration 129 (2007), at 133. For a well-researched breakdown of how ICSID tribunals have used other FIAT decisions during the process of treaty interpretation, see Fauchald, ‘The Legal Reasoning of ICSID Tribunals—An Empirical Analysis’, 19(2) European Journal of International Law 301 (2008), at 335–41.

3  Schreuer, The ICSID Convention: A Commentary (2001), at 617.

4  See, e.g. the numerous awards and decisions made available on websites such as <http://icsid.worldbank.org>; <www.investmentclaims.com>; and <http://ita.law.uvic.ca>.

5  See Weeramantry, supra note 2, at 112–3.

6  See generally Shahabuddeen, Precedent in the World Court (1996), at 97.

7  For a well-crafted commentary on this Article of the ICJ Statute, see Bernhardt, ‘Article 59’, in Zimmermann et al. (eds), The Statute of the International Court of Justice: A Commentary (2006), at 1231.

8  See United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports (1980), at 18, para. 33; and Interpretation of Agreement of 25 March 1951 between the WHO and Egypt, ICJ Reports (1980), at 87, para. 33. Judge Shahabuddeen observed in his Lauterpacht Lectures that the Court’s jurisprudence ‘has developed in the direction of a strong tendency to adhere closely to previous holdings’. Shahabuddeen, supra note 6, at 238.

9  ICJ Reports 275 (1998), at 292, para. 28.

10  Rosenne, The Law and Practice of the International Court, 1920–2005, Volume III: Procedure (2006), at 1553. A similar respect for prior decisions is held by the WTO Appellate Body. As an example, it stated in the Shrimp Turtle II case that ‘[a]dopted panel reports are an important part of the GATT acquis. … They create legitimate expectations among WTO Members and, therefore, should be taken into account where they are relevant to any dispute’. United States Import Prohibition of Certain Shrimp and Shrimp Products, WTO Appellate Body Report, 12 October 1998, WT/DS58/AB/R, at para. 108.

11  Bernhardt, supra note 7, at 1244.

12  In Methanex (Amicus Decision), at para. 51, the claimant argued that by interpreting Article 15(1) of the UNCITRAL Arbitration Rules to permit the acceptance of amicus submissions, the tribunal would be setting a precedent for other tribunals. The response of the tribunal was to state that it ‘can set no legal precedent, in general or at all. It has no power to determine for other arbitration tribunals how to interpret Article 15(1)’.

13  See SGS v Philippines, at para. 97. See also AES, at para. 23(d); and Enron (Ancillary Claim), at paras 25–6.

14  El Paso, at 39. See also Amco (Jurisdiction), at para. 14; Bayindir, at para. 76; and AES (Jurisdiction), at paras 30–2. As to NAFTA cases, see, e.g. Waste Management, dissenting opinion of Keith Highet, introductory (unnumbered) paragraph (‘[t]he precedential significance of this Award for future proceedings under the North American Free Trade Agreement (NAFTA) cannot be underestimated’); and Methanex (Partial Award), at para. 141. Correspondingly, a prior tribunal’s rejection of interpretations submitted by a party may also influence subsequent tribunals. See, e.g. Sempra Energy (Jurisdiction), at para. 145.

15  Saipem (Jurisdiction), at para. 67 (emphasis added). The identical words were repeated in the Saipem (Award), at para. 90. Very similar words were used in Duke v Ecuador, at para. 117. See also ADC, at para. 293 (‘cautious reliance on certain principles developed in a number of those cases, as persuasive authority, may advance the body of law, which in turn may serve predictability in the interest of both investors and host States’); and Wälde, ‘Investment Arbitration under the Energy Charter Treaty: An Overview of Key Issues’, 1 Transnational Dispute Management (2004), Issue 1 (‘The reasoning of almost all modern arbitral awards demonstrate the great care investment arbitral tribunals apply to ensure they are positioned in the mainstream of emerging jurisprudence. While there is no formal “stare decisis” rule, there is a de facto and very strong pressure on each tribunal to heed what other tribunals have done with identical or very similar legal language. This does not necessarily prevent contradictory awards …’); and Lowenfeld, ‘Investment Agreements and International Law’, 42 Columbia Journal of Transnational Law 123 (2003–04), at 128 (‘[b]ut since so many of the recent treaties are so much alike, it is proper in a BIT case for arbitrators who are called upon to construe terms such as “fair and equitable treatment,” “adequate compensation,” or “equal access” to draw on the awards in similar disputes under similar treaties’).

16  See Wälde, ‘Interpreting Investment Treaties’, in Binder et al. (eds), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer 724 (2009), at 726.

17  SGS v Philippines, at para. 97 (footnotes omitted).

18  See, e.g. SGS v Philippines, at paras 111 and 157.

19  See, e.g. Azurix (Jurisdiction), at para. 73 (the tribunal held it ‘concurs with decisions of tribunals that have interpreted the same provision in the same BIT or similar provisions in other BITs to which Respondent is a party’); LG&E (Jurisdiction), at para. 74; and Lanco, at para. 43. See also Kaufmann-Kohler, ‘Interpretation of Treaties: How do Arbitral Tribunals Interpret Dispute Settlement Provisions Embodied in Investment Treaties?’, in Mistelis and Lew, Pervasive Problems in International Arbitration (2006), at 258 (observing that ‘all investment treaties protect investments by granting investors rights which are materially identical or comparable’).

20  See, e.g. AES, Azurix, LG&E, Enron, CMS, and Lanco arbitrations, which all invoked the 1991 Argentina–US BIT. In this regard, see particularly AES, at para. 29.

21  For a detailed discussion on prominent FIAT cases that have not followed prior FIAT awards on the same or similar provisions, see Franck, ‘The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law Through Inconsistent Decisions’, 73 Fordham Law Review 1521 (2004). See also Gill, ‘Inconsistent Decisions: An Issue to be Addressed or a Fact of Life?’, in Ortino, Sheppard, and Warner (eds), Investment Treaty Law: Current Issues Volume I (2006), at 27 (inconsistent decisions in investment arbitration is no means unique, ‘domestic courts reach inconsistent decisions on a regular basis … the thousands of domestic, consumer and industry-specific arbitrations undoubtedly give rise to inconsistent decisions from time to time’).

22  See, e.g. Amco (Annulment), at paras 22 and 44; CMS (Jurisdiction), at paras 70–6; Vacuum Salt, at 337, para. 29, n. 9; Lanco, at para. 46; LG&E, at paras 77–8; Vivendi (Jurisdiction), at para. 94; Bayindir, at paras 96, 98, 102 and 128; Olguín (Jurisdiction), at para 26; Eureko, at para. 186; Gas Natural, at para. 36, 39, and 52; Azurix (Jurisdiction), at para. 73; AES, at paras 30 and 32; and Tokios (Jurisdiction), at para. 91. By way of interest, a glimpse of the extent to which some tribunals cite other ICSID cases is provided by a perusal of the endnotes in Enron (Ancillary Claim). See also Schreuer, supra note 3, at 617 (noting that the early years of the ICSID Convention, references to ICSID decisions was scant due to ‘their relatively small number and the difficulty in gaining access to them’). See also Weeramantry, supra note 2, at 115–9; and Wälde and Weiler, ‘Investment Arbitration under the Energy Charter Treaty in the Light of the new NAFTA Precedents: Towards a Global Code of Conduct for Economic Regulation’, in Kaufmann-Kohler and Stucki (eds), Investment Treaties and Arbitration, Swiss Arbitration Association Conference, 25 January 2002 (ASA Special Series No. 19) 159, at 166 (in the context of interpreting the ECT).

23  Mitchell (Enforcement Stay), at para. 23; Metalclad (Award), at para. 108; and Methanex (Final Award), at Part II, Chap. B, para. 6 (‘the Tribunal may remain open to persuasion based on legal reasoning developed in the GATT and WTO jurisprudence’).

24  Amco (Annulment), at para. 44.

25  LETCO (Award), 2 ICSID Reports 346, at 352.

26  Amco (Annulment), at para. 44.

27  AES (Jurisdiction), at para. 28 (‘if the basis of jurisdiction for these other tribunals and/or the underlying legal dispute in analysis present either a high level of similarity or, even more, an identity with those met in the present case, this Tribunal does not consider that it is barred, as a matter of principle, from considering the position taken or the opinion expressed by these other tribunals’); and Mitchell (Enforcement Stay), at para. 23.

28  Enron (Jurisdiction), at para. 40.

29  Bayindir, at 76 (finding that ‘it is not bound by earlier decisions, but will certainly carefully consider such decisions whenever appropriate’); and Plama (Jurisdiction), at para. 218.

30  Lucchetti (Award), at para. 48.

31  Tokios (Jurisdiction), at para. 42.

32  See Schreuer, ‘Diversity and Harmonization of Treaty Interpretation in Investment Arbitration’, 3(2) Transnational Dispute Management (2006), at 10.

33  See, e.g. Renta 4, at para. 16; Plama (Jurisdiction), at para. 210; Mitchell (Enforcement Stay), at para. 23; El Paso, at para. 39; Enron (Ancillary Claim), para. 33; Bayindir, at paras 73–6; and Azurix (Jurisdiction), at para. 73.

34  Feldman (Award), at para. 107.

35  See, e.g. Klöckner (Annulment), paras 59–61; and Lucchetti (Award), at para. 48. See also Schreuer, supra note 3, at 616, n. 233.

36  See, e.g. Mondev, at para. 43; Klöckner (Annulment), at paras 59–61; Amco (Annulment), at paras 41 and 44; Lucchetti (Award), at para. 48; Siemens (Jurisdiction), at paras 94–103; Casado (Provisional Measures), at paras 19–20; and Plama (Jurisdiction), at paras 213–7. See also Schreuer, supra note 3, at 616, n. 233.

37  Loewen (Jurisdiction), at para. 45. See also Schreuer, supra note 3, at 616, n. 234.

38  See, e.g. Lauder, at para. 200. Contrast Mondev, at para. 69, n. 17. See also Schreuer, supra note 3, at 616, n. 235.

39  CME (Partial Award), at para. 608; Loewen (Jurisdiction), at para. 45; Tokios (Jurisdiction), at para. 92; Casado (Provisional Measures), at paras 22–3. See also Schreuer, supra note 3, at 616, n. 236.

40  Klöckner (Annulment), at paras 59–61. AAP, at para. 40 referred to a number of early international arbitral awards in support of its summation of treaty interpretation rules. See also Schreuer, supra note 3, at 616, n. 236.

41  WTO references tend to be made more often by NAFTA tribunals than other FIATs. In Methanex (Partial Award), at Part II, Chap. B, para. 6, the tribunal held that when it comes to interpreting certain provisions of the NAFTA Chapter 11:

the Tribunal may derive guidance from the way in which a similar phrase in the GATT has been interpreted in the past. Whilst such interpretations cannot be treated by this Tribunal as binding precedents, the Tribunal may remain open to persuasion based on legal reasoning developed in GATT and WTO jurisprudence, if relevant.

See also ADF (Award), at para. 147; Pope & Talbot (Merits, Phase 2), at paras 46–63; and SD Myers (Partial Award), at paras 244 and 291. As regards, reference to WTO case law by ICSID tribunals, see SGS v Pakistan, at para. 171, n. 178. In Occidental Exploration (Award), at paras 174–5, a non-NAFTA investment arbitration, WTO case law was distinguished and not followed.

42  See, e.g. SD Myers (Partial Award), at para. 249, n. 44 (referring to a line of decisions emanating from the Supreme Court of Canada in its interpretation of NAFTA Article 1102 and commenting that ‘[a]lthough domestic law is not controlling in Chapter 11 disputes, it is not inappropriate to consider how the domestic laws of the parties to the dispute address an issue’); and Dr Asante’s dissenting opinion in AAP (Dissenting Opinion), at 306 (referring to an English court decision (Adams v Naylor [1946] 2 All ER 241) and commenting that the case was ‘certainly not binding in this arbitration’ but it ‘may be instructive’). In contrast, see Enron (Ancillary Claim), at para. 39, in which the tribunal, in its interpretation of the Argentina–US BIT, was reluctant to rely on the view taken on direct and indirect share ownership in the US Supreme Court decision in Dole Food Co. v Patrickson, 123 S. Ct. 1655 (2003). In Duke v Ecuador, at para. 183, reference was made to the English Queen’s Bench judgment in Ecuador v Occidental Exploration & Production Co (No. 2) [2006] EWHC 345 (Comm).

43  National Grid (Award), at para. 144.

44  Continental Casualty (Award), at para. 192.

45  Wälde, supra note 16, at 772. This point is also discussed at paras 35 and 44 supra.

46  Fauchald, supra note 2, at 335.

47  See, e.g. Commission, supra note 2, at 158 (‘The role that precedent has come to play in investment treaty arbitration today resembles the common law doctrine of stare decisis absent certain of the associated values advanced in a common law system of precedent.’); Cheng, ‘Precedent and Control in Investment Treaty Arbitration’, 30 Fordham International Law Journal 1014 (2007), at 1044 (concluding on the basis of examined FIAT decision trends that a credible hypothesis may be made that ‘in spite the absence of rules of precedent in investment treaty arbitration, there is a strong—albeit imperfect and informal—norm of accounting for prior relevant awards and providing reasons for following or departing from those awards.’); and Schreuer and Weiniger, ‘A Doctrine of Precedent?’, in Muchlinski, Ortino, and Schreuer, The Oxford Handbook of International Investment Law (2008), at 1196 (‘a de facto practice of precedent certainly exists. However, it is not identical to that prevailing within domestic common law systems’).

48  Wälde, ‘The Specific Nature of Investment Arbitration’, in Kahn and Wälde (eds), New Aspects of International Investment Law (2007), at 105–6. See also AES (Jurisdiction), at para. 22 and Schreuer (2006), supra note 31, at 15 (‘an application for annulment that alleges an excess of powers or a failure to state reasons because the tribunal has simply relied on earlier decisions without making an independent decision or developing its own reasons is entirely possible’).

49  See particularly Amco (Annulment), at para. 44. See also Fauchald, supra note 2, at 335. But see Loewen (Jurisdiction), at para. 49 (reference to the ratio); and Renta 4, at paras 23 and 95 (reference to obiter).

50  Commission, supra note 2, at 156.

51  See, e.g. Aguas del Tunari, at para. 288; Enron (Ancillary Claim), at paras 35 and 43–45; Plama (Jurisdiction), at paras 210, 211, and 224; Sempra Energy (Jurisdiction), at para. 145 and 155; and SGS v Philippines, at para. 110. See also the CME (Final Award), at para. 432, where the tribunal stated that although that arbitration and the Lauder arbitration concerned the same investment and the respective BITs at issue in each case granted similar investment protections, the bilateral treaties were not identical. As a consequence, res judicata was held to be not applicable as between the CME and Lauder tribunals.

52  Enron (Ancillary Claim), at para. 45. See also Occidental Exploration (Award), at para. 57 (‘what ultimately matters is that every solution must respond to the specific circumstances of the dispute submitted and the nature of such dispute’); and Canadian Cattlemen, at para. 209.

53  Quoted in AES (Jurisdiction), at para. 22. See also Schreuer (2006), supra note 31, at 15.

54  Wälde and Weiler, supra note 22, at 166, n. 19.

55  See Plama (Jurisdiction), at para. 217.

56  Aguas del Tunari, at para. 288.

57  Sempra Energy (Jurisdiction), at para. 147 (emphasis added).

58  Pellet, ‘Article 38’, in Zimmermann et al. (eds), The Statute of the International Court of Justice: A Commentary (2006), at 784. However, one cannot underestimate the role of judicial or arbitral decisions in shaping international law. As Professor Shaw observes, many decisions of international arbitral awards ‘have been extremely significant in the development of international law’. Shaw, International Law (2003), at 104. See also Pellet, ibid., at 789–90 (citing instances of ‘the deep influence that the [ICJ] has exercised on the evolution of international law’).

59  Methanex (Partial Award), at para. 141. See also Enron (Jurisdiction), at para. 40 (‘decisions of ICSID or other arbitral tribunals are not a primary source of rules’).

60  Canadian Cattlemen, at para. 50.

61  See also Orakhelashvili, ‘Principles of Treaty Interpretation in the NAFTA Arbitral Award on Canadian Cattlemen’, 26 Journal of International Arbitration 159 (2009), at 167–8.

62  Out of the 98 ICSID decisions analysed in that study, 90 used ICSID case law in their interpretative arguments, and another 30 decisions referred to other tribunal decisions that used the UNCITRAL Arbitration Rules. The next most frequently used type of interpretative criterion was ‘legal doctrine’, e.g. the writings of scholars and other commentaries, which were referred to in seventy-three decisions. See Fauchald, supra note 2, at 356.

63  Wälde and Weiler, supra note 22, at 166 (footnote omitted). See also Gaillard, ‘Investment Treaty Arbitration and Jurisdiction Over Contract Claims—the SGS Cases Considered’, in Weiler (ed.), International Investment Law and Arbitration: Leading Cases from the ICSID, NAFTA, Bilateral Treaties and Customary International Law 325 (2005), at 328 (referring to the ‘authority resulting from’ a line of FIAT awards).

64  Brown, A Common Law of International Adjudication (2007), at 226–34. But also see his discussion of limitations to courts’ abilities to develop this ‘common law’, ibid., at 234–7.

65  Ibid., at 226–34. See also Shany, The Competing Jurisdictions of International Courts and Tribunals (2003), at 110–2.

66  See also Article 31(3) of the Vienna Convention, which addresses the use of subsequent agreements or practice in treaty interpretation.

67  Fauchald, supra note 2, at 345.

68  Wälde, supra note 16, at 777.

69  McLachlan, ‘The Principle of Systemic Integration and Article 31(3) (c) of the Vienna Convention’, 54 ICLQ 279 (2005), at 283–4.

70  Gardiner, supra note 1, at 282.

71  AAP, at para. 40, quoting the Elton case, Mexico–US General Claims Commission of 1929, Repertory, Vol. II, p. 35. As regards the reference to similar provisions in other treaties (or past interpretations of such provisions) by other international law courts and tribunals see Gardiner, supra note 1, at 345; and Phillimore, Commentaries upon International Law (1882), Vol. II, at 98 (referring to ‘[t]he rule of instituting a comparison between the Treaty in dispute and other treaties, whether prior, posterior, or contemporary, upon the same subject and between the same parties’). In the Oil Platforms case, ICJ Reports 161 (2003), at para. 20 the ICJ was required to interpret Article XX of the 1955 Treaty of Amity, Economic Relations and Consular Rights between the United States and Iran. In interpreting this provision, the Court saw no reason to depart from its interpretation in the Nicaragua case (ICJ Reports 14 (1986), at 116, para. 222 and 136, para. 271) of an identical provision in the 1956 Treaty of Friendship, Commerce and Navigation between the United States and Nicaragua. A factor that should be kept in mind when this decision is contrasted with FIAT awards is that the prior interpretation was made by the same court. This is highly unlikely to happen in the case of FIATs, which comprise a different panel of arbitrators for each case (save for rare exceptions such as Camuzzi and Sempra Energy or where the case is consolidated (see, e.g. Canfor (Consolidation Order)).

72  See, e.g. Aguas del Tunari, at paras 292–3 (‘[m]ost relevant to an assessment of state practice possibly bearing on the 1992 Bolivia-Netherlands BIT are those BITs which were negotiated contemporaneously in the early 1990s’); SPP (Jurisdiction No. 2), at paras 102–3; Fedax (Jurisdiction), at para. 34 (referring generally to ‘most contemporary bilateral treaties’ in interpreting the BIT at issue); Gruslin, at para. 21.4; SGS v Philippines, at para. 132(e); Fedax (Jurisdiction), at para. 27 (referring to the Convention Establishing the Multilateral Investment Guarantee Agency 1985 interpreting the ICSID Convention); National Grid (Jurisdiction), at para. 85; and Enron (Jurisdiction), at para. 47 (‘[t]here is no evidence in this case that the intention of the parties to the Argentina–United States Bilateral Treaty might be different from that expressed in other investment treaties’). See also Schreuer, supra note 3, at 289 (commenting that as long as they are reasonable, national legislation or treaty-based definitions should play a prominent role in the interpretation of Article 25(2)(b)).

In SPP (Jurisdiction No. 2), at paras 78–82, Egypt argued that to translate the term ‘tatimmu’ to mean ‘shall be’ was overstating the nature of the Arabic term. In the tribunal’s interpretation of that term—found in Arabic legislation that was deemed to be an acceptance of ICSID jurisdiction—it was noted that those two terms were used interchangeably in certain treaties concluded by Egypt in both the Arabic and English languages. See also its references to other treaties ibid., at para. 103.

73  See, e.g. Methanex (Partial Award), at para. 140 (interpretation of NAFTA supported by reference to the 1958 New York Convention); Bayindir, at para. 113 (other BITs used to confirm interpretation of BIT at issue); Maffezini (Jurisdiction), at para. 68 (the relevant BIT provisions ‘complement and are consistent with’ the ICSID Convention); Tokios (Jurisdiction), at para. 42 (‘the definition of corporate nationality in the Ukraine–Lithuania BIT, on its face and as applied to the present case, is consistent with the [ICSID] Convention and supports our analysis under it’) and para. 79 (‘[t]he Tribunal’s finding under the BIT is also consistent with the ICSID Convention’); Brownlie’s separate opinion in CME (Final Award), paras 17–8 (BIT interpretation supported by reference to 1975 Final Act of the Helsinki Conference on Security and Co-operation in Europe); and LESI, at Part II, para. 25(ii) (other BITs and Energy Charter Treaty used to confirm BIT at issue).

74  Pope & Talbot (Merits, Phase 2), at paras 110–1 and 115. See also Professor O’Connell, who remarked that where a treaty subject to interpretation ‘forms part of a system of treaties it is permissible to interpret it in the light of the other treaties’. O’Connell, International Law (1970), at 260.

75  See, e.g. Enron (Jurisdiction), at para. 46 (‘Each instrument must be interpreted autonomously in the light of its own context.’).

76  See, e.g. Methanex (Final Award), at Part II, Chap. B, para. 16; and Occidental Exploration (Award), at paras 174–6. But see Pope and Talbot (Merits, Phase 2), at paras 45–63, 68–9.

77  Methanex (Final Award), at Part II, Chap. B, para. 16, quoting MOX Plant case (Ireland v United Kingdom), Provisional Measures, Order of 3 December 2001, ITLOS Reports 95 (2001), at 106, para. 51, 41 ILM 405 (2002), 413.

78  Similarly, in cases before the ICJ where the terms of another treaty or instrument are not identical but similar, the Court appears to exercise more caution. In the Anglo–Iranian Oil case, ICJ Reports 93 (1952), at 105, the United Kingdom asserted that Iran’s unilateral declaration of its acceptance of the compulsory jurisdiction of the ICJ should be interpreted on the basis that the clause at issue was copied from a unilateral declaration adopted by Belgium. This Belgian document had also been adopted by numerous other States. Accordingly, the United Kingdom asserted that the clause in the Iranian declaration should be understood in the same sense as the Belgian formula. The Court did not accept the UK argument because there was an interpolation of certain words in the Iranian declaration that altered the Belgian formula to such an extent that it was impossible to seek the ‘real meaning’ of the Iranian declaration in the Belgian formula.

79  Aguas del Tunari, at paras 310–4; Salini v Jordan (Jurisdiction), at paras 116–8; and CSOB (Jurisdiction), at para. 57. See also Loewen (Award), at para. 235 (the only relevance of the ICSID Convention to that proceeding was that the parties had elected to function under its structure and that election could not be used to change or supplement the substance of the NAFTA Treaty).

80  Aguas del Tunari, at para. 299.

81  Sempra Energy (Jurisdiction), at para. 144. Contrast Plama (Jurisdiction), at para. 195 (‘treaties between one of the Contracting Parties and third States may be taken into account for the purpose of clarifying the meaning of a treaty’s text at the time it was entered into’) and para. 155.

82  Tza Yap Shum, at para. 109.

83  Methanex (Final Award), at Part IV, Chap. B, at paras 29–30.

84  Gruslin, at para. 21.6.

85  Aguas del Tunari, at paras 309–14. Contrast Maffezini (Jurisdiction), at paras 58–60.

86  Siemens (Jurisdiction), at para. 106. See also Aguas del Tunari, at para. 298 (recognizing ‘the need for care’ in assessing differences between a treaty and a model BIT) and paras 310–1; Enron (Jurisdiction), at para. 46; Pan American (Preliminary Objections), at para. 108; El Paso, at para. 80; CMS (Award), at para. 368; and Plama (Jurisdiction), at para. 204. See also Pope & Talbot (Merits, Phase 2), at paras 110–1.

87  Schreuer (2006), supra note 31, at 8–9.

88  See, e.g. Eureko, at paras 187–8 (referring to the ILC’s work on state responsibility); Loewen (Jurisdiction), at para. 47 (referring to the ILC’s work on state responsibility); and Methanex (Partial Award), at para. 99 (referring to the ILC work on the law of treaties). The pronouncements of the ILC may also be indicative of international law rules dealt with in Vienna Convention Article 31(3)(c).

89  American Manufacturing, Arbitrator Golsong’s separate opinion, at para. 13.

90  World Duty Free Company, at para. 139.

91  See, e.g. Tokios (Jurisdiction), at para. 2. This draft convention is published in Sohn and Baxter, ‘Responsibility of States for Injuries to the Economic Interests of Aliens’, 55 AJIL 545 (1961).

92  See, e.g. Casado (Provisional Measures), at para. 1 (noting that because Article 47 of the ICSID Convention was ‘directly inspired’ by Article 41 of the ICJ Statute, ‘particular importance’ could be accorded to the judgments of the ICJ and PCIJ); and Goetz (Award), at para. 54 (noting that because Article 45(1) of the ICSID Convention, and Article 42 of the ICSID Arbitration Rules were inspired by Article 53 of the ICJ Statute, it was ‘appropriate to refer to the principles enunciated by the International Court of Justice’).

93  SPP (Dissent - 1992), at 254–5.

94  Lauder, at para. 292; and Gruslin, at paras 21.3 and 21.6.

95  Saluka (Award), at para. 284, n. 18; Pope & Talbot (Merits, Phase 2), at para. 78, n. 73. In that same case, reference was made to the 1968 OECD Draft Convention on the Protection of Foreign Property but this was distinguished and not relied on by the tribunal. Pope & Talbot (Merits, Phase 2), at para. 112.

96  Fedax (Jurisdiction), at para. 35.

97  Feldman (Award), at paras 99, 105–7.

98  See, e.g. Bayindir, at para. 129. This type of situation may extend beyond the contours of treaty interpretation and may be seen equally as an instance of the preclusive effects of a prior statement (see, e.g. Phillips Petroleum Company Iran v Iran, 21 Iran–US CTR 79 (1989), at para. 207) or a rule of evidence that contradictory statements or conduct of an interested party should be construed against that party (see, e.g. Woodward-Clyde Consultants v Iran, 3 Iran–US CTR 239 (1983), at pp. 246–7; and Weeramantry, ‘Estoppel and the Preclusive Effects of Inconsistent Statements and Conduct: The Practice of the Iran–United States Claims Tribunal’, 27 Netherlands Yearbook of International Law 265 (1996)). See also, Sempra Energy (Jurisdiction), at paras 132 and 143–5; Methanex (Partial Award), at para. 145; and Enron (Jurisdiction), at para. 47.

99  See, e.g. Aguas del Tunari, at paras 271 and 294; Mondev, at paras 111–2; CMS (Award), at paras 362, 369; Generation Ukraine (Award), at paras 15.4–15.7; Feldman (Award), at para. 181; and Ethyl (Jurisdiction), at para. 84, n. 32. In Gruslin, materials submitted by Malaysia to support its interpretation included a memorandum from the Malaysian Ministry of Trade and Industry to the Malaysian Attorney-General’s Chambers and records of interview of Malaysian officials involved in the negotiations of the investment treaty at issue. The tribunal expressed a reluctance to allow extrinsic materials to colour the meaning of particular terms of the investment treaty. The tribunal observed that if the meaning of the phrase ‘is found to be clear, the Tribunal will not reduce its reach by reference to general considerations or assumptions derived from extrinsic sources of the sort relied upon by the Respondent in its materials and arguments’. Gruslin, at paras 17.1 and 21.4–21.6. Similarly see Berschader (Award), at para. 158.

100  See, e.g. Maffezini (Jurisdiction), at paras 58–60; Lanco, at para. 32; Aguas del Tunari, at paras 310–4; Sempra Energy (Jurisdiction), at paras 144–5; and Camuzzi (Jurisdiction), at para. 134. This type of practice may also relate to Article 31(3). The Aguas del Tunari award, at para. 293, considered ‘[m]ost relevant to an assessment of state practice possibly bearing on the 1992 Bolivia–Netherlands BIT are those BITs which were negotiated contemporaneously in the early 1990s’.

In SPP (Jurisdiction No. 2), at para. 110, the tribunal made reference to a non-disputing State’s (Senegal) treaty practice.

101  Mondev, at para. 111.

102  Mondev, at para. 112. See also CMS (Award), at para. 362.

103  Approved on 18 March 1965 by the directors at the same time they approved the final text of the Convention. See History of the ICSID Convention, Vol. II, Part 2, p. 1039. The Report was transmitted to governments at the same time the text of the Convention was submitted for signature and ratification, acceptance or approval. History of the ICSID Convention, Vol. II, Part 2, p.1086.

104  See, e.g. Kaiser Bauxite, at para. 17; Bayindir, at para. 125; LESI, at Part 2, para. 13; CSOB (Jurisdiction), at para. 63; Wena Hotels (Jurisdiction), at 85; Lanco, at paras 42–3; Tokios (Jurisdiction), at para. 99; and Azurix (Jurisdiction), at para. 58. See also Fauchald, supra note 2, at 330.

105  See, e.g. Banro, at para. 20, which suggests that the preparatory work is distinct from the Report of the Executive Directors. The tribunal there first referred to the preparatory work in making its point and then said this was ‘also confirmed’ by the Report.

106  See, e.g. Goetz (Award), at para. 83, in which the tribunal immediately referred to the Report’s definition of ‘legal dispute’ in Article 25 of the ICSID Convention, prior to any other Article 31 analysis. Similarly, see Fedax (Jurisdiction), at 189, para. 15 and Joy Mining, at para. 42.

107  See SPP (Jurisdiction No. 2), at paras 112 and 115.

108  Wälde and Weiler, supra note 22, at 166, n. 19.

109  Aguas del Tunari, at para. 291.

110  TSA Spectrum (Award), at para. 101.

111  See, e.g. Articles 36–63 of the ICSID Convention. In this regard Article 44 provides ‘[a]ny arbitration proceeding shall be conducted in accordance with the provisions of this Section and, except as the parties otherwise agree, in accordance with the Arbitration Rules in effect on the date on which the parties consented to arbitration’.

112  Indeed, interpreters must be mindful that the ICSID Arbitration Rules are subordinate to the ICSID Convention and in the event of a conflict between the two instruments, the Convention should prevail. See, e.g. Vivendi (Challenge), at para. 10 and Schreuer, supra note 3, at 677.

113  See, e.g. Amco (Annulment), at para. 37; Amco (Resubmitted Jurisdiction), 1 ICSID Reports 543, at 567; and MINE (Annulment), at para. 4.07. Fedax (Jurisdiction), at para. 28 referred to the ICSID Rules Governing the Additional Facility in interpreting the ICSID Convention. See also Aguas Provinciales, at para. 14 (referring to the UNCITRAL Arbitration Rules in interpreting the ICSID Convention); Vacuum Salt, at 337, para. 29, n. 9; and Guinea v Atlantic Triton Company Limited, 26 October 1984, Cour d’appel, Rennes (Second Chamber), 3 ICSID Reports 3, at 8 (this judgment was overturned by the Cour de Cassation).

114  See Articles 4(1) and 6(1)(c) of the ICSID Convention.

115  ADF (Award), at para. 144. See also Methanex (Partial Award), at paras 125–6 (referring to the ICJ Rules of Procedure in its interpretation of the UNCITRAL Arbitration Rules).

116  Vivendi (Challenge), at para. 5. See also Schreuer, supra note 3, at 1042; and Chapter 6, Section J infra.

117  Vivendi (Challenge), at paras 10–12 (footnotes omitted).

118  See supra, Chapter 3, Section D supra.

119  Article 38 of the ICJ Statute (emphasis added). For a discussion on judicial decisions as a subsidiary means for determining rules of law within the context of Article 38 of the ICJ Statute, see Section B supra.

120  Pellet, supra note 58, at 1558–9. This is not the case in respect of individual opinions of ICJ judges. See ibid., at 791–2.

121  Ibid., at 1558–9.

122  Ibid., at 792.

123  See generally, Schreuer, supra note 3, at 617.

124  Fauchald, supra note 2, at 356.

125  See, e.g. Pellet, supra note 58, at 791.

126  Wena Hotels (Jurisdiction), at 82. See also Aguas del Tunari, at para. 283 (taking the view that among other things ‘scholarly commentary’ indicated that the drafters of the ICSID Convention intended a flexible definition of ‘control’ in Article 25); Amco (Annulment), at para. 22 and at para. 34; and Pope & Talbot (Merits), at para. 113.

127  See, e.g. Goetz (Award), at para. 67, n. 14; Tokios (Jurisdiction), at paras 22, 26, 42, 88, 94, 98, 106; Impregilo v Pakistan, at paras 108, n. 57 and 133; Joy Mining, para. 53, n. 18; Aguas del Tunari, at para. 281; Fedax (Jurisdiction), at para. 21; Tokios (Opinion), at para. 19; Wena Hotels (Jurisdiction), at 82–3; Bayindir, at 127; Methanex (Partial Award), at para. 107, n. 8; Maffezini (Jurisdiction), at para. 31, n. 6, para. 74, n. 54, and para. 94, n. 69; Mitchell (Enforcement Stay), at para. 41, n. 14; CSOB (Jurisdiction), at para. 38, n. 7; Duke v Peru, at para. 130; LG&E (Liability), at para. 85, n. 3; Vivendi (Annulment), at paras 62, 64, 66, and 86; Vivendi (Challenge), at para. 12; LESI (Award), at para. 8(i); Aucoven (Jurisdiction), at para. 51; Aucoven (Award), at para. 91; Banro, at para. 19; ADF (Award), at para. 144, n. 151; AES, at para. 40, n. 18; Camuzzi (Jurisdiction), at para. 20, n. 7; MTD (Stay of Execution), at para. 27, n. 1; Salini v Jordan (Award), at para. 102; Sempra Energy (Jurisdiction), at para. 30, n. 7; SGS v Pakistan, at para 48, n. 48; SGS v Philippines, at para. 29, n. 5; Siemens (Jurisdiction), at para. 169, n. 157; and Wena Hotels (Interpretation Decision), at para. 81, n. 60. Some of these references are to Professor Schreuer’s contributions to Volumes 11 to 15 of the ICSID Review-Foreign Investment Law Journal (1996–2000). Altogether, these ICSID Review volumes contained eight articles by Professor Schreuer, which collectively represent a significant part of Schreuer’s Commentary. See Schreuer, supra note 3, Preface, at xviii.

128  In Vacuum Salt, at para. 37, he was described as ‘the acknowledged authority’ on the ICSID Convention. See, also Fedax (Jurisdiction), at para. 21; Aucoven (Jurisdiction), at paras 96–8; CSOB (Jurisdiction), at para. 17; Aguas del Tunari, at para. 284; Tokios (Jurisdiction), at paras 25, 46, and 69; Maffezini (Jurisdiction), at para. 79; Wena Hotels (Jurisdiction), at 82 and 83; and Klöckner (Award), at 15. His most frequently cited work is Broches, ‘The Convention on the Settlement of Investment Disputes between States and Nationals of Other States’, 136 Recueil des Cours 331 (1972-II).

129  See Schreuer, supra note 3, at 1290. See also History of the ICSID Convention, Vol. 2, Part II, p. 1040.

130  Eureko, at para. 251 describes their work Bilateral Investment Treaties (1995) as ‘[t]he leading work on bilateral investment treaties’. However, given the growth of BITs since the mid-1990s, this work would not be fully reflective of the current generation of BITs. See also Wena Hotels (Jurisdiction), at 83–4; Olguín (Jurisdiction), at para 26; Genin, at paras 367 and 368; Lauder, paras 200 and 308; Pope & Talbot (Merits, Phase 2), at para. 111, n. 105; and Mondev, at para. 79, n. 19.

131  He is often cited in relation to his studies on ICSID’s jurisdiction: ‘The Jurisdiction of the International Centre for the Settlement of Investment Disputes’, 19 Indian Journal of International Law 166, 214 (1979); and ‘Jurisdiction Ratione Personae under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States’ (1974–75) 46 BYBIL 227. See, e.g. Tokios (Jurisdiction), para 68 (referring to what it termed ‘Dr. Amerasinghe’s corollary rule of interpretation’) and 97; Wena Hotels (Jurisdiction), at 82; Aucoven (Jurisdiction), at para. 62; Fedax (Jurisdiction), at para. 22; and Vacuum Salt, at para. 29, n. 9, paras 37 and 42.

132  See, e.g. his publications ‘ICSID Arbitration: Practical Considerations’, 1 Journal of International Arbitration 101 (1984); and ‘ICSID Arbitration and the Courts’, 77 AJIL 784 (1983). See Wena Hotels (Jurisdiction), at 82; Salini v Morocco (Jurisdiction), at para. 27; Fedax (Jurisdiction), at paras 22–3; Tokios (Jurisdiction), at para. 42, n. 27; and Vacuum Salt, at para. 29, n. 9.

133  See, e.g. Mihaly, at para. 58. Note, however, that this case indicated that ‘experts on the theory and practice of multinational corporations’ fell outside the ambit of ‘teachings of the most highly qualified publicists’. Ibid.

134  Ibid.

135  See, e.g. the CME tribunal’s evaluation of the expert opinion provided by Schreuer, one of the leading scholars in the field of ICSID arbitration. CME (Final Award), at paras 401–13 (e.g. ‘Prof. Schreuer’s conclusions are not adequately supported by his citations, when closely read. Prof. Schreuer’s conclusions are carefully drafted with reference to assumptions which are not in accord with the facts of this case.’). As to the opinions of authoritative public international lawyers on points of substantive law prepared specifically for a case, see Loewen (Award), at para. 150.

136  Draft Article 70(1)(b) of Waldock III (emphasis added). See Appendix II infra. See also draft Article 56 of Waldock III and draft Article 69(1)(b) of the ILC Draft Articles 1964. Fitzmaurice was a staunch supporter of this approach. See, e.g. Fitzmaurice, ‘The Law and Procedure of the International Court of Justice 1951–54: Treaty Interpretation and Other Treaty Points’, 33 BYBIL 203 (1957), at 212 and 226 (‘to interpret such treaties according to modern concepts, would often amount to importing into them provisions they never really contained, and imposing on the parties obligations they never actually assumed’). An initial draft in Waldock III included a similar provision on the application of a treaty in accordance with international law.

137  Vienna Conference, First Session, Committee of the Whole, 33rd meeting, para. 54. An initial draft in Waldock III included a provision on the application of a treaty in accordance with international law in force at the time it was applied (numbered as Article 56(2)). See YILC (1964-II), at 8–9. However, this Article 56(2) was deleted in the Waldock III final draft provisions.

138  Jiménez de Aréchaga, ‘International Law in the Past Third of a Century’, 159 Recueil des cours 1 (1978), at 49.

139  (US v Netherlands) 2 RIAA 829 (1949), at 845.

140  United States (LF and PE Neer) v Mexico, United States–Mexico General Claims Commission, 15 October 1926, 21 AJIL 555 (1927) (Supplement).

141  Mondev, at para. 114, quoting Neer, at 556.

142  Ibid., at para. 116.

143  Ibid., at para. 117. See also Azurix (Award), at para. 361; LG&E (Liability), at para. 125; and CMS (Award), at para. 284. The influence of subsequent developments has also been recognized in other international law cases. See, e.g. Shrimp Products case (WTO Appellate Body) (1998), at para. 130 (stating that ‘[f]rom the perspective embodied in the preamble of the WTO Agreement, we note that the generic term ‘natural resources’ in Article XX(g) is not ‘static’ in its content or reference but is rather ‘by definition, evolutionary.’’); dissenting opinion of Judge Alvarez in the Competence of the General Assembly regarding Admission to the United Nations, ICJ Reports 4 (1950), at 18 (‘a treaty or a text that has once been established acquires a life of its own. Consequently, in interpreting it we must have regard to the exigencies of contemporary life, rather than to the intentions of those who framed it’); and Judge Azevedo’s dissenting opinion in Competence of the General Assembly regarding Admission to the United Nations, ICJ Reports 4 (1950), at 23. See also Hudson, The Permanent Court of International Justice, 1920–1942 (1943), at 658 (‘[w]ith the lapse of time, intentions entertained by the draftsmen of an instrument may lose some of their importance, and a course of action by those who must live with and under the provisions of the instrument may assume a correspondingly greater significance’).

144  Mondev, at paras 123 and 125. See also Eureko, at para. 258. Wälde and Weiler have likewise suggested the following:

We suggest that the right approach is not to allow oneself to become too entangled in historical controversies about the minimum standard, but rather to follow general principles of treaty interpretation in applying the relevant provisions to the facts of a given case. This approach requires interpretation of treaty terms in their prevailing literal meaning, supported by the context and purpose of the treaty. Notions of ‘fair and equitable’, ‘constant protection’ or ‘avoidance of unreasonable impairment’ cannot be understood in the sense the minimum standard was discussed in the 19th century (relying on the prevailing standards of good governance), but must rather be read with today’s prevailing standard of good governance. This means that one must take into account the decades of international treaty practice, authoritative soft-law instruments and state practice which have evolved since at least the Second World War as indicative of such standards.

Wälde and Weiler, supra note 22, at 187. But see the approach to the Neer case in Glamis Gold.

145  Pope & Talbot (Damages), at para. 65. But see Glamis Gold, at para. 616.

146  See, e.g. Fitzmaurice, supra note 136, at 226.

147  Tradex (Jurisdiction), at 67. See also Eureko, at para. 258 (noting the doctrine that presumes sovereign rights override the rights of a foreign investor ‘has been displaced by contemporary customary international law, particularly as that law has been reshaped by the conclusion of more than 2000 essentially concordant bilateral investment treaties’).

148  CME (Final Award), at para. 498.

149  LG&E (Liability), at para. 213. See also Czech Republic v European Media Ventures SA [2007] EWHC 2851 (Comm), at para. 36 (holding that the ordinary meaning should be at the time the treaty was concluded).

150  See, e.g. Pollux, ‘The Interpretation of the Charter’, 23 BYBIL 54 (1946), at 68–9 (‘the aim of interpretation is to give effect to the instrument; to give it an interpretation which, on the whole, will render it most effective and useful’) and at 70 (‘the aim [of interpretation] must be to endow international conventions with the maximum possible effect’); Lauterpacht, The Development of International Law by the Permanent Court of International Justice (1934), at 69–70 and the revised 1958 version of that book, at 228; and Gaffney and Loftis, ‘The “Effective Ordinary Meaning” of BITs and the Jurisdiction of Treaty-Based Tribunals to Hear Contract Claims’, 8(1) Journal of World Investment & Trade 5 (2007).

151  See Appendix III infra.

152  YILC (1966-II), at 219, para. 6. Wälde, however, has commented that the relation between the principle of effectiveness and the good faith principle is tenuous. Wälde, supra note 16, at 738–40. See also Gardiner, supra note 1, at 150.

153  The PCIJ and the ICJ have also invoked the principle many times. See Territorial Dispute (Libya v Chad), ICJ Reports 6 (1994), at 23, para. 47 and 25, para. 51 (referring to the principle as ‘one of the fundamental principles of interpretation of treaties, consistently upheld by international jurisprudence’); Corfu Channel case, ICJ Reports 4 (1949), at 24; Acquisition of Polish Nationality, Advisory Opinion (No. 7), PCIJ, Series B (1923), at 17; Free Zones of Upper Savoy and the District of Gex, Order of 19 August 1929, PCIJ, Ser. A, No. 22, p. 13; the dissenting opinion of Judge de Visscher in the International Status of South-West Africa, Advisory Opinion, ICJ Reports 128 (1950), at 187; and Border and Transborder Armed Actions, Judgment, ICJ Reports 69 (1988), at 89, para. 46. The WTO Appellate Body placed the principle within the scope of the Convention Rules when it observed that ‘[a] fundamental tenet of treaty interpretation flowing from the general rule of interpretation set out in Article 31 [of the Vienna Convention] is the principle of effectiveness (ut res magis valeat quam pereat)’. Japan—Taxes on Alcoholic Beverages II, AB-1996–2, WTO Appellate Body, WT/DS8,10&11/AB/R (4 October 1996), at 12. See also Gardiner, supra note 1, at 159–61.

154  AAP, at para. 40.

155  Klöckner (Annulment), at para. 62.

156  Eureko, at para. 248. No citations were made to specific international law cases. It could have referred to AAP, at para. 40 (Rule (E)), which expounds a similar rule and cites authority in support. See also Noble Ventures (Award), at para. 50 (commenting after a reference to the Convention Rules that ‘the principle of effectiveness (effet utile) … too plays an important role in interpreting treaties’). FIATs have also considered the Roman maxim ut res magis valeat quam pereat as having equivalence with the principle of effectiveness. See Section G infra. In relation to the use of the principle by domestic courts in interpreting BITs, see Czech Republic v European Media Ventures SA [2007] EWHC 2851 (Comm), at para. 37.

157  See, e.g. MINE (Annulment), at paras 4.05–4.06. See also Canfor (Preliminary Question), at para. 324 (‘under well-known principles of international law, every provision of an international agreement must have meaning, because it is presumed that the State Parties that negotiated and concluded that agreement intended each of its provisions to have an effect’).

158  See, e.g. Amco (Jurisdiction), at para. 29.

159  Kaiser Bauxite, at para. 24.

160  Maffezini (Jurisdiction), at para. 36; Lucchetti (Award), at para. 59; and El Paso, at para. 110 (holding that treaty provisions ‘must be considered to carry some legal meaning’). See also Joy Mining, at para. 50; Holiday Inns, 1 ICSID Reports at 674; and Waste Management (Opinion), at 476, para. 47, and 478, para. 55. The SPP tribunal, in relation to a domestic statute, held that ‘[u]nder general principles of statutory interpretation, a legal text should be interpreted in such a way that a reason and a meaning can be attributed to every word in the text’. SPP (Jurisdiction No. 2), at para. 94. See also Romak, at para. 180.

161  Camuzzi (Jurisdiction), at para. 56.

162  Noble Ventures (Award), at para. 52.

163  Ibid.

164  Tecmed, at para. 156.

165  Tza Yap Shum, at para. 188.

166  American Manufacturing, separate opinion of Golsong, at 42, para. 20. El Paso, at para. 76, spoke of the need to avoid rendering ‘the whole Treaty completely useless’. See also Sempra Energy (Jurisdiction), at para. 94.

167  SPP (Jurisdiction No. 2), at para. 94.

168  Occidental Exploration (Award), at para. 68; Joy Mining, at para. 50; and SPP (Jurisdiction No. 2), at para. 94.

169  SPP (Jurisdiction No. 2), at para. 94. Note must be made that this was in relation to the interpretation of an Egyptian statute that, under certain conditions, consented to ICSID jurisdiction. See also SGS v Pakistan, at para. 168; Generation Ukraine (Award), at para. 14.3; and Eureko, at para. 258.

170  SGS v Philippines, at para. 116 (‘[t]he object and purpose of the BIT supports an effective interpretation of Article X(2)’). See also MINE (Annulment), at para. 4.05; Noble Ventures (Award), at para. 52; Mondev, at para. 91; and Schreuer (2006), supra note 31, at 4.

171  Banro (Award), at para. 6. See also Noble Ventures (Award), at para. 52. This passage was quoted with approval in the dissenting opinion of Alberro-Semerena in Aguas del Tunari, at para. 32.

172  See the Interpretation of Peace Treaties (Second Phase), ICJ Reports 221 (1950), at 229 and the dissenting opinion of Judge Read, ibid., at 238. See also Jennings and Watts (eds), Oppenheim’s International Law (1992), at 1281 (‘[e]ffectiveness is relative to the object and purpose of the treaty, a decision as to which will normally first have to be made’).

173  Fitzmaurice, supra note 136, at 19. See also Fitzmaurice, ‘Vae victis or woe to the negotiators: Your treaty or our “interpretation” of it?’, 65 AJIL 358 (1971), at 373; the joint dissenting opinion of Judges Fitzmaurice and Spender in the South West Africa cases, Preliminary Objections, ICJ Reports 319 (1962), at 468, 511–3; the Laguna del Desierto case, 113 ILR 1, at 44; and Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989: Part Three’, 62 BYBIL 1 (1991), at 47–8.

174  Jennings and Watts, supra note 172, at 1281. See also Thirlway, who has observed that if ‘a particular set of circumstances had arisen or could be imagined in which a treaty provision, according to an otherwise acceptable interpretation, would be ineffective or lead to improbable results, this is not necessarily a ground for rejecting that interpretation. The principle of effectiveness should be employed as an aid to assessment of likely intentions, rather than as a rigid canon of interpretation whereby the text must be deemed to be effective in all circumstances.’ Thirlway, supra note 173, at 46 (footnote omitted). Thirlway qualifies this statement by adding that an ineffective interpretation should be excluded only where there is an alternative interpretation that produces an effective result and does not offend against other cannons of interpretation. Ibid., at 47–8.

175  Renta 4, at para. 32. Article 10(1) of the Spain–USSR BIT is comprised of over sixty words.

176  See, e.g. Berlia, ‘Contribution à l’interprétation des traités’, 114 Recueil des cours 283 (1965), at 306 et seq. Examples of this rule may be found in the merits phase of the Corfu Channel case, ICJ Reports 4 (1949), at 24 and the Anglo-Iranian Oil case, ICJ Reports 93 (1952), at 105. See also Thirlway, supra note 173, at 44.

177  See, e.g. Berlia, supra note 176, at 308 et seq. Examples of this rule may be found in the Interpretation of Peace Treaties (Second Phase) case, ICJ Reports 221 (1950), at 229; and in the Ambatielos, ICJ Reports (1952), at 45. This limb appears to have a close relation to the Article 31(1) object and purpose criterion.

178  AAP, at para. 40 (Rule (E)) and para. 52; CSOB (Jurisdiction), at para. 39; Noble Ventures (Award), at para. 50; Salini v Jordan (Jurisdiction), at para. 95; El Paso, at para. 110; and Thunderbird, dissenting opinion, at para. 91.

179  Sempra Energy (Jurisdiction), at para. 94.

180  Jennings and Watts, supra note 172, at 1275 et seq., refers to a number of legal maxims in its section on supplementary means of interpretation.

181  Wälde, supra note 16, at 733.

182  YILC (1966-II), at 218, para. 3.

183  YILC (1966-II), at 218, para. 4. Jennings and Watts, supra note 172, at 1269–70, comments that Roman law maxims applied in municipal law systems:

are expressive of common sense and of normal grammatical usage, they commend themselves also in the interpretation of treaties. However, while international law permits recourse to many principles and maxims, it does not always require recourse to them. The appropriateness of applying many of them depends on a variety of considerations which will determine whether, although they are accepted in international law as potentially relevant, they are also suitable for application in all the circumstances of a particular case. In such cases the principle is not so much a rule of international law as a discretionary aid. …

184  See generally, Wälde, supra note 16, at 742.

185  SGS v Philippines, at para. 141. In a similar vein, Schreuer, supra note 3, at 362, has commented that ‘[a] document containing a dispute settlement clause which is more specific in relation to the parties and to the dispute should be given precedence over a document of more general application’. See also AAP, at para. 54 (‘in the absence of a specific rule provided for in the Treaty itself as lex specialis, the general international law rules have to assume their role as lex generalis’) and para. 65 (holding that the lex generalis applies to all situations that are not covered by a specific rule). See also Canadian Cattlemen, at para. 166; AES (Jurisdiction), at para. 23(b); ADF (Award), at para. 147; and AAP (dissenting opinion), at 302–3.

186  SPP (Jurisdiction No. 2), at para. 83, citing Grotius, De Jure Belli ac Pacis, Bk II, Chap. XVI, and Mavrommatis Palestine Concessions, Jurisdiction, PCIJ, Series A, No. 2 (1924), pp. 31-2; and Saudi Arabia v Aramco 27 ILR 117 (1963). However, the BIT cannot override the ICSID Convention in a way that it expands the provisions contained in that Convention. See, e.g. Aguas del Tunari, at para. 278.

187  Fraport, at para. 305.

188  SGS v Philippines, Supplementary Declaration, at para. 9.

189  SGS v Pakistan, at para. 171.

190  Eureko, at para. 258. See also the criticism in Wälde, supra note 16, at 733–6.

191  Waste Management II (Award), at para. 85. See also National Grid (Jurisdiction), at para. 82 (‘specific mention of an item excludes others’).

192  Siemens (Jurisdiction), at para. 140. See also Austrian Airlines (Award), at para. 131 (the principle ‘cannot alone determine the outcome of the interpretation when a treaty contains other relevant elements’); Vacuum Salt, at 337, para. 29, n. 9; Tokios (Jurisdiction), para. 30; Tza Yap Shum, at para. 207; Methanex (Final Award), Part IV, Chap. C, at para. 14; and Wälde, supra note 16, at 740.

193  See also Schreuer (2006), supra note 31, at 7 (the maxim is of limited use and that ‘[w]hether the mention of one item or a list of items in a provision really excludes the relevance of other items depends very much on the particular circumstances and cannot be answered in a generalised way’).

194  Maffezini (Jurisdiction), at 405–6, at paras 46–50; and Plama (Jurisdiction), at paras 36 and 189.

195  This maxim has been used synonymously with the principle of effectiveness. See, e.g. Banro, at para. 6; El Paso, at para. 110; American Manufacturing, separate opinion of Arbitrator Golsong, at 42, para. 20; Waste Management, dissenting opinion, at para. 55; and Pan American (Preliminary Objections), at para. 132. See also Section F supra.

196  SGS v Philippines, at para. 143 and at para. 145 (‘[i]n principle a later agreement between the same parties could override an earlier one’).

197  See Aust, Modern Treaty Law and Practice (2nd edn, 2007), at 249.