This post was contributed by Yuliya Chernykh, who is associate professor in law at the Inland Norway University of Applied Sciences (campus Lillehammer).
Addressing incidental issues in a blog post for the European Association of Private International Law feels like bringing a topic ‘back home’. Indeed, incidental or preliminary issues are a well-known concept and a classical entry in encyclopedias in private international law. The concept begs a question that must be resolved before the main issue, and is recognisable in private international law because of a choice-of-law puzzle it raises.
Conceptualising incidental issues in investment treaty arbitration is not that ‘at home’. The system (if it can be called a system in the first place) is not premised on domestic courts but on an uncoordinated variety of arbitral tribunals. These tribunals, working under institutional and ad hoc arbitration rules, build their jurisdiction based on bilateral and multilateral treaties on investment protection (to date, more than 3,000 treaties), and apply treaty provisions to resolve investment disputes. All these disputes (to date, more than 1,100 disputes) are about State responsibility under international law because of breaches of standards on investment protection, such as unlawful expropriation, violations of full protection and security, fair and equitable treatment, most-favoured-nations treatment, umbrella clauses and some other standards of investment protection contained in relevant treaties. The public international law framework of investment treaty arbitration complicates the application of national law (also frequently referred to as domestic or municipal law) and the relevance of conceptual frameworks based on private international law perspectives as a result.
What suggests then that the concept of the incidental issue might bring some value for investment treaty arbitration? Or more precisely, what makes it to suggest that treaty-based tribunals should realise that contract interpretation is an incidental issue, and apply national law to it? I give detailed answers in my Open Access monograph in – Contract Interpretation in Investment Treaty Arbitration: A Theory of the Incidental Issue. Here, I will present a summary of some observations.
A Failure to Apply National Law as a Major Challenge that a Concept of Incidental Issue Can Solve
To understand the value, one must be aware of the challenges that investment treaty arbitration experiences, on the one side, and the advantages that the concept of the incidental issue provides, on the other side. The challenges are about failures to apply national law to issues traditionally governed by it and overall concerns about the correctness and quality of decision-making and legal reasoning surrounding these issues. The advantages are about structuring decision-making and legal reasoning and ensuring that questions governed by national laws are treated as they should be with the application of the relevant national law. Relying (by analogy) on the concept of incidental issue to approach national law issues in investment treaty arbitration, tribunals ensure that they do not assimilate or unduly substitute their analysis in relation to these issues by other efforts that are not informed by applicable national law. More importantly, if tribunals would approach questions traditionally governed by national law as incidental issues, they would not overlook application of national law.
Practical Importance of Conceptualising (National Law) Incidental Issues
The frequency of reoccurrence of national law issues in investment treaty arbitration explains why conceptualisation matters as a matter of practice. While public international law sets a general framework for how treaty-based disputes are to be resolved, it does not apply to those questions that come into existence under national laws and are governed by them. Treaty-based tribunals regularly decide on issues relating to existence, transfer, validity, and scope of rights arising from property or contracts; they may also need to consider if a legal entity exists and what capacity it has. Neither property nor contracts or legal entities come into existence as a matter of public international law. These issues are governed by national law only. There could be hundreds of other issues pertinent to various aspects of relationships and status that are not governed by public international law in the first place and require decisions to be made under national laws.
Scarcity of Scholarly Efforts
Despite its theoretical and practical attractiveness, the usefulness of approaching national law issues in investment treaty arbitration as the incidental issue has not gained much attention. Some earlier calls may be found in the work of Zachary Douglas – The International Law of Investment Claims (CUP 2009). No voice has so far advocated the conceptualising of contract interpretation as an incidental issue, possibly because incidental issues in private international law are normally more palpable questions often described as addressing/capturing relationships or status. Instead of focusing on the existence of relationships or status, contract interpretation rather depicts the process of ascertaining the content of contractual provisions and its result.
Contract Interpretation as an Incidental Issue
While less discernible, there are still good reasons to treat contract interpretation as an incidental issue. These reasons are essentially the same as articulated earlier. When treaty-based tribunals interpret treaties, there are no doubts about the relevance of the provisions on treaty interpretation contained in Vienna Convention on the Law of Treaties. When treaty-based tribunals ascertain the content of contractual provisions, no complexity shall arise in taking into account applicable national regulations of contract interpretation. Similar to contract validity, contract termination and contract performance, contract interpretation is governed by national law. It is not governed by international law. Jurisdictions differ in the way that they approach contract interpretation and the choice of applicable national law may impact the outcome of the interpretative exercise. My empirical investigation, however, reveals that in 47% of cases, tribunals have not (expressly) relied upon national law in their attempts to ascertain the content of contractual provisions. Conceptualising contract interpretation as an incidental issue accordingly enables one to preserve the analytical distinction between ascertaining the content of contractual provisions under national law and oversimplified assimilation of this analytical activity to fact-finding and other analytical efforts not informed by national laws. In other words, the proposal ensures application of national law to contract interpretation, advances the correctness of the decision-making and reasoning, its predictability and overall quality.
The suggestion is not trivial and can make a difference for a notable portion of cases that appear in investment treaty arbitration. Contracts frequently play a central role in treaty-based disputes. Their premature termination, a failure to prolong, or otherwise observe may trigger State responsibility under relevant treaties for investment protection. Overall, my empirical study of 573 awards reveals a broad variety of contracts that appear in investment treaty arbitration and necessitate interpretation, such as agreements about concessions, construction, credit, electricity purchase, lease agreements, pledge agreements, privatisation, etc. Numerous contractual clauses may necessitate ascertainments, such as limitation of liability clauses, termination clauses, penalty clauses, stabilisation clauses, exclusivity clauses, etc.
Finally, contract interpretation as the incidental issue fits neatly into the overall structure of decision-making in investment treaty arbitration. By way of example, when tribunals need to decide if expropriation of contractual rights has taken place because of premature contract termination by a State in the exercise of its sovereign powers, they inevitably need to engage with contractual provisions on termination. The question which they typically have to answer is whether a State has contractual grounds for terminating contracts. This question precedes a general conclusion about whether the expropriation of contractual rights has taken place. Contract interpretation of the contractual provisions on termination would appear to be the incidental issue of the second order in this analysis, whereas the question as to whether a termination was allowed under the contract would appear to be the incidental issue of the first order.
Vigotop v. Hungary, while not using the concept of incidental issue, illustrates the structure of decision-making, the role of contract-related questions under national laws, and the overall suitability of approaching contract interpretation as an incidental issue (Figure 7 on page 340 of my book: Illustration Chernykh).
To sum up, it appears that private international law has much to offer to the decision-making and legal reasoning within the public international law framework. This yet is another opportunity to look at the convergence between both, a topic that is gaining increasing attention, and rightly so. We may all benefit from symposium posts hosted by the European Association of Private International Law, brainstorming potentials, and pitfalls of convergence and divergence between private international law and public international law.