Environmental Engineering Reference
In-Depth Information
meaning, despite the official language. If the interpretations of the different lan-
guages result in different interpretations, the meaning which best represents the
object and purpose of the treaty should be adopted.
275
Finally, the VCLT provisions on treaty interpretation are seen as part of cus-
tomary international law.
276
The application of the VCLT in ICSID case law is
slowly increasing since the year 2000.
277
This means they apply to all international
treaties, regardless of Art. 1 to 5 of the VCLT and it adds an erga omnes effect to
certain norms of the VCLT. Until today it is not clear to what moment in time the
process of interpretation refers, as the meaning of the treaty can be interpreted
according to the circumstances at the time of the conclusion of the treaty (static
approach) or according to today
s perception (principle of contemporaneity).
278
'
3.5.1.2.4 Art. 11 of the G/M-BIT
The G/M-Bit entered into force in 2004, which was after the VCLT. Both contrac-
tual partners are states which signed and ratified the VCLT. As mentioned above,
Art. 11(1) of the G/M-BIT includes the umbrella clause. The article addresses
“disagreements with regard to investments” in paragraphs one and two.
3.5.1.2.4.1 Wording
The wording of the German and the French version of Art. 11(1) of the G/M-BIT is
identical. As mentioned above, this is a broad notion of a dispute settlement
agreement, which also means that it is an umbrella clause. This is also supported
by the broad definition of the term investment in Art. 1 of the G/M-BIT. The
protection of the investment should be comprehensive. The wording of the article
indicates that all disagreements will be covered by the BIT. There is no limitation of
the BIT
s scope to treaty claims, as disagreements can also imply contractual
dissents. Hence, the wording illustrates that contract claims can be treaty claims
if a relationship to the investment exists.
'
275
Art 33(4) VCLT as customary international law, in: ICJ [2001] LaGrand case—Judgement,
466 (502) para 101; Matz (
2005
), 306.
276
ICJ [2007] Case concerning the application of the Convention on the Prevention and Punish-
ment of the Crime of Genocide—Judgement, 60 para 160; ICJ [2002] Case concerning Sover-
eignty over Pulau Ligitan und Pulau Sipadan—Judgement, 625 (645-646) paras 37-38; ICJ [1999]
Case concerning Kasikili/Sedudu Island—Judgment, 1045 (1059) para 18; Dorr in Dorr and
Schmalenbach (
2012
), Art. 31 paras 6-7; Article 31 para 4.Article 31 VCLT is customary
international law, in: Shaw (
2008
), 933; Matz (
2005
), 277; Mortenson (
2010
), 257 (309);
Herdegen (
2010
), § 15 para 4; W¨lde (
2009
), 724 (745).
277
W
¨
lde (
2009
), 724 (746).
278
D
€
orr in D
€
orr and Schmalenbach (
2012
), Art. 31 para 23. Further references, in: D
€
orr in D
€
orr
and Schmalenbach (
2012
), Article 31 paras 24-28.
