Abstract: No matter how carefully a provision in an inter-State agreement is drafted, its intended meaning may drift, over the course of serial arbitrations, away from what was originally intended by the States parties. Drift is a common feature of every legislative enactment, but controlling and correcting drift is particularly challenging in international treaty law. There are a wide variety of reasons for textual drift, and the phenomenon is not necessarily dysfunctional. But in circumstances in which one of the parties to the treaty feels that the drift departs from its original intention, reversing it or winding it back becomes an urgent challenge. The probability of textual drift can be minimised by practising linguistic precision. This comes at a cost, for excluding general terms that convey discretion to appliers reduces their capacity to respond appropriately to the idiosyncrasies of particular cases. Sunset provisions are one technique for controlling textual drift, but, again, their application comes at a high price. A more discriminating method of controlling textual drift is the incorporation of a commission composed of treaty partners who are authorised to issue authentic interpretations of the treaty’s provisions. The same result can be secured more directly by a post hoc agreement among a treaty’s States parties. A fi nal method, which is being promoted by the Council of Europe, is the creation of an inter-State court, which will have exclusive jurisdiction over the resolution of investment disputes. While this may control the direction of the textual drift in favour of States, it cannot eliminate it.
Keywords: investment agreements; textual drift; serial arbitrations; amendment procedures; claw-back mechanisms
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