The author seeks to illustrate the multiplicity of thoughts and varied techniques deployed in interpreting consent in investment arbitration. The chapter shows that the steady rise of varied international disputes has generated significant debate about the interpretation and application of the principle of consent. International courts and tribunals are being increasingly criticized by States for their jurisdictional overreach. The underlying problem, as the author sees it, may well be whether the contours of consent to arbitration are clear. Investment arbitration tribunals while dealing with the question of State consent have shown sharp divisions on the notion of consent. The varied approaches taken by arbitral tribunals to State consent highlights the indeterminacy of the contours of consent. The chapter finds support for its argument in a case study of the issue of State consent in the context of the interpretation of Most-Favoured Nation clauses.

Traditionally, the choice of an interpretive method and practice is contingent upon the governing law and nature of the agreement under scrutiny. In this respect, international commercial and investment tribunals have significantly contributed to shaping the pivotal role of legal interpretation within the parameters of international adjudication.

It is now undisputed that the internationalization of wide-ranging economic activities and the emergence of State contracts have reshaped the classic distinction between contracts and treaties, and softened the sharp dichotomy between the national and international orders. Despite the straightforwardness of the distinction between contract and treaty in principle, it is also evident that the distinction is not so clear-cut in practice and international arbitral tribunals are often asked to resolve disputes involving these two types of instruments. This practice has rendered it more difficult to separate the issue of interpretation from that of applicable law.

This entry’s point of departure is an analysis of the scope of the rules of interpretation in light of the growing overlap between legal orders, treaties and contracts. Engaging in a comparison of the methods of interpretation in contracts and treaties, the authors then examine the arbitrators’ gap-filling power when facing an ambiguous term or silence. Arbitral tribunals’ use of aids to interpretation and extrinsic evidence or ‘supplementary means’ to interpretation are also discussed.

The criticism of the scholar sheltered in her ivory tower and ignoring the real world is tenacious. Thus, she is often accused of holding herself aloof from the problems of society, making her work irrelevant and socially insignificant. Is this true for academics in international law? Is it not the case that, unlike “the preacher and the philosopher [who] defend postulates which are beyond realization in practice … the international jurist must not walk in the clouds; he must remain on the ground of what is realizable and tangible”?

The first traces of this division between “the men of thought” and “the men of action” can be found in Ancient Greece, where vita contemplativa was opposed to vita activa. Vita contemplativa represented a quest for happiness based on the renunciation of the vanities of human affairs such as wealth or honor. It necessarily involved a withdrawal from human activities. Vita activa, for its part, was a diametrically opposed model of existence, whose happiness was based on the pursuit of pleasure and honor.

This chapter deals with the law on the internal matters of international organizations, and more particularly, with the relations between organs of an international organization. Issues include, among others, the power of self-regulation, financial relations between organs of an organization, the creation of subsidiary organs and the applicable legal rules thereto, as well as analysis of various procedures that require the collaboration between different organs of the same organization.1 The chapter will not deal with the legal relations between an international organization and its civil servants. It will equally steer clear of the legal relationships between organizations and their member states, third parties or other international organizations.

Co-operation is a cornerstone principle of contemporary international law. It is difficult to overstate its reach as it finds expression in many different areas of international legal relations. That said, its gravitation to the heart of international law has been a relatively recent phenomenon. The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations of 1970 has played an important role in this transition.

Introduction

The phenomenon of normative proliferation and its consequences have attracted much attention in recent years. The phenomenon is variously described as ‘fragmentation’, ‘diversity’, ‘cacophony’, ‘inter-connected islands’, ‘regime-collisions’ or ‘internormativity’. In this context, there are calls for coherence, or at least for a peaceful coexistence among the various sets of norms. The need for the ‘strengthening’ of a coherent and interactive legal framework is particularly pronounced in the field of the trade and environment relationship.

It is a need for ‘strengthening’, rather than a need for ‘building’, because there is already, and prima facie, a certain coherence among WTO Agreements and multilateral environmental agreements (MEAs). In both cases, the objective of sustainable development is explicitly stated. In addition, WTO law – and especially the General Agreement on Tariffs and Trade (GATT), the Agreement on Technical Barriers to Trade (TBT) and the Agreement on Sanitary and Phytosanitary Measures (SPS) – allows Member States to adopt trade-restrictive measures in order to protect the environment as long as they respect the principles of non-discrimination and of proportionality (objective of minimising negative trade effects). Article XX of GATT 1994 allows trade measures which protect human, animal or plant life or health, and which relate to the conservation of exhaustible natural resources. The TBT Agreement also foresees the domestic implementation of voluntary standards and mandatory technical regulations for essentially the same objectives.