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Interpretation Of (Allegedly) Self-Judging Clauses In Bilateral Investment Treaties

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Chapter Summary

This essay examines the questions related to the alleged self-judging character of Article XI, bearing in mind the nature of bilateral investment treaties and of related arbitration. It first describes how ICSID tribunals have dealt with the issue and then discusses whether their findings are consistent with Article 31 Vienna Convention on the Law of Treaties (VCLT). It may at first sight seem strange that Article XI of the BIT between Argentina and the United States has consistently been treated by five ICSID tribunals as a non self-judging provision in spite of the contrary position taken by Argentina in the proceedings and the similar general attitude of the United States. Yet, Article 31 (1) VCLT- applied in line with ICJ jurisprudence- allows to comfortably establishing that Article XI is not self-judging and that the measures adopted on grounds of emergency may be subject to substantial review by arbitral tribunals.

Keywords: bilateral investment treaties; ICSID; VCLT



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