Outline of a normative framework for evaluating interpretations of investment treaty protections

There are at least two ways in which legal scholarship might be approached. One might ask what the law on a particular subject is. This question invites doctrinal inquiry through an examination of authoritative sources internal to a legal system. Alternately, one might ask whether the law on a particular subject matter is desirable or just. This normative inquiry typically begins with a characterisation of what the law on a given subject is, but its primary objective is the evaluation of law by external, normative criteria. Arbitral tribunals charged with interpreting and applying international investment treaties (IITs) continue to grapple with legal concepts such as ‘fair and equitable treatment’ and ‘indirect expropriation’. Different tribunals have interpreted common treaty language in distinct ways; for example, in an earlier work I argue that tribunals have used six, identifiably distinct approaches to distinguish indirect expropriation from legitimate non-compensable regulation. It would be useful to be able to examine which interpretations were more desirable – in a normative sense – and which were inadvisable. This chapter presents a framework for normative evaluation of interpretations of the substantive protections of foreign investment contained in IITs.