Elgar International Investment Law series
Chapter 5: Internal arguments: from ordinary meanings to derogatory logic
Chapter 5 considers the internal arguments by which tribunals have dealt with potential conflicts between foreign investor rights and environmental protection. These internal arguments are simply those which tribunals have developed by following the internal interpretative canons of IIL, that is, the canons which look at the ordinary meaning of applicable rules and in the context of IIL – do not in themselves involve taking into account values and interests other than property-related and commercial ones. As explained in Chapter 4, there is a wide range of internal hermeneutical canons in international investment law, and these usually encompass not only literal, but also contextual and teleological forms of interpretation. In other legal frameworks, contextual and, most of all, teleological canons of interpretation may favour the integration of values and principles which are different from those embedded in the rules that are applicable to a given case. However, when these canons apply to the concepts and rules of IIL, they commonly orient the interpreter towards a unitary axiological perspective. The one-dimensional character of IIL not only explains why these interpretative canons lead to internal arguments, it is also an important factor in the question of integration. Indeed, since the context and purposes of investment treaties do not usually recognize values and interests other than the property and commercial rights of foreign investors, taking due account of fundamental social and human values in an investment dispute is problematic.
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