Chapter 6: Systemic approaches
This chapter focuses on the systemic approaches taken by investment tribunals (and investment treaty makers) to address interactions and conflicts between foreign investor rights and environmental concerns. In employing a systemic approach to IIL, tribunals and treaty makers position investment regimes within the framework of the international legal order. In this sense, tribunal systemic approaches (and supporting treaty techniques) expressly allow for values and norms which are ‘external’ to investment regimes, and which therefore do not directly or simply concern the protection of property and commercial interests. The fragmented, ‘internal’ approaches analysed in Chapter 5, and the systemic, ‘external’ approaches explored in this chapter thus lie at the opposite sides of a hypothetical ordering spectrum, which ranges across the vast number of tribunal arguments and treaty solutions that address complex questions concerning the relevance and integration of non- commercial values into IIL. Article 31.3(c) of the Vienna Convention, providing for the systemic canon of interpretation, has long been neglected by scholars and tribunals. It has, however, received growing consideration over the last 15 years, particularly in studies exploring the relationship between specific international legal regimes, such as that of the WTO, and other rules and principles of international law.4 The ILC’s report on fragmentation5 has validated the central role of Art. 31.3(c) in connecting special subsystems of law with the entirety of international law. These studies demonstrate that Art. 31.3(c) is a key tenet in reducing the significance of lex specialis when autonomous regimes or subsystems are involved in disputes before international courts and tribunals.
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