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4 - Treaty Interpretation

Published online by Cambridge University Press:  17 April 2021

Jörg Kammerhofer
Affiliation:
Albert-Ludwigs-Universität Freiburg, Germany
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Summary

Does judicial interpretation of IIAs produce epistemic ‘authority’? Interpretation can mean both the process of finding out what texts mean and guidance to the concretisation of abstract general norms in individual instances. In the second sense, interpretation is subconsciously used to narrow the freedom of deciders; a range of interpretative tools is used to generate a quasi-formal unity of meaning across IIAs. Systemic integration is the most used and most potent tool. It enjoins us to assume that meanings are identical, but this is baseless: taking into account external rules could just as easily be the basis for a divergence. However, customary law is less certain and precise than assumed. From the perspective of peer-accepted reasoning-before-decision, the interpreter takes meanings, not external rules, into account. Arbitral tribunals in fact interpret IIAs in light not of a customary norm but of other investment tribunals’ understanding of the meaning of other treaty norms. On that perspective, there is no distinction between interpretative tools. Interpretation cannot unify investment law because it does not change the law, only certain brute facts.

Type
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International Investment Law and Legal Theory
Expropriation and the Fragmentation of Sources
, pp. 68 - 143
Publisher: Cambridge University Press
Print publication year: 2021

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  • Treaty Interpretation
  • Jörg Kammerhofer, Albert-Ludwigs-Universität Freiburg, Germany
  • Book: International Investment Law and Legal Theory
  • Online publication: 17 April 2021
  • Chapter DOI: https://doi.org/10.1017/9781108989428.005
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  • Treaty Interpretation
  • Jörg Kammerhofer, Albert-Ludwigs-Universität Freiburg, Germany
  • Book: International Investment Law and Legal Theory
  • Online publication: 17 April 2021
  • Chapter DOI: https://doi.org/10.1017/9781108989428.005
Available formats
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To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Treaty Interpretation
  • Jörg Kammerhofer, Albert-Ludwigs-Universität Freiburg, Germany
  • Book: International Investment Law and Legal Theory
  • Online publication: 17 April 2021
  • Chapter DOI: https://doi.org/10.1017/9781108989428.005
Available formats
×