Treaty Conflict in International Investment Law

What is it about?

The increase in BITs creates a likelihood of fragmentation and inconsistencies between both BITs and between BITs and the numerous regional and international treaties in other fields of international law. This situation increases the relevance of treaty conflict principles in international investment law and jurisprudence. This chapter addresses the implementation of the VCLT principles concerning treaty conflict in investment arbitration cases, especially in the EU context. The chapter also shows how the result of such an examination may be relevant to determining the jurisdiction of an investment tribunal. To address treaty conflicts, most investment tribunals rely on VCLT Articles 30 and 59, which provide principles to address conflicts of successive treaties relating to the same subject-matter. These Articles are the main focus of this chapter. This chapter concludes that investment tribunals often reject jurisdictional objections based on the treaty conflict provisions in the VCLT and assert their jurisdiction over investment disputes, ostensibly to promote greater protection for investors. In doing so, investment tribunals essentially ignore States’ conflicting obligations, the application of which might lead to opposing results

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