A. A NÁLISIS EXISTENCIAL GENERAL
1) El sentido de la vida
a) International Law Practice
258. The ILC took the view that use of supplementary means of interpretation
designated in Article 32 was an
exception to the rule that the ordinary meaning of the terms must prevail. ... The Commission considered that the exception must be strictly limited, if it is not to weaken
May 2009, at para. 7 (‘A failure to apply the rules of interpretation perforce distorts the resulting interpretation of the parties’ agreement and is a species of the application of the wrong law’).
506 Eduardo Jiménez de Aréchaga, ‘International Law in the Past Third of a Century’, 159 Recueil des
cours 1 (1978), at 46. Other observations on the reliability of preparatory work are discussed in
unduly the authority of the ordinary meaning of the terms. Sub-paragraph (6) is accordingly confined to cases where interpretation under article 27 [which eventually became Article 31] gives a result which is manifestly absurd or unreasonable.507
259. The ILC also decided against including a definition of preparatory work in the
Vienna Convention Rules as it considered that such a definition might possibly lead to
the exclusion of relevant evidence.
508Given the absence of a definition, Aust’s
elucidation of the concept is helpful. He indicated that the preparatory work includes
‘successive drafts of the treaty, conference records, explanatory statements of an
expert consultant at the codification conference, uncontested interpretative statements
by the chairman of a drafting committee and ILC Commentaries’.
509He adds that the
value of such material
will depend on several factors, the most important being authenticity, completeness and availability. The summary record of a conference prepared by an independent and experienced secretariat will carry more weight than an unagreed record produced by a host state or a participating state. However, even the records of a conference served by a skilled secretariat will generally not tell the whole story. The most important parts of negotiating and drafting often take place informally, with no agreed record being kept. The reason why a particular compromise formula was adopted, and what it was intended to mean, may be difficult to establish. This will be especially so if the form of words was deliberately chosen to overcome a near irreconcilable difference of substance.510
260. There is scant jurisprudence in both in international law and FIAT awards
concerning the limb of Article 32 that deals with the circumstances of a treaty’s
conclusion. One reason that may explain this situation is that the circumstances
falling within this criterion may also overlap with or be treated as part of the Article
31(1) object and purpose analysis, as an Article 31(2)(a) or (b) factor or generally as
part of the preparatory work.
511Sinclair identified the essence of the criterion when
he observed that it ‘may have some value in emphasising the need for the interpreter
507 YILC (1966-II), at 223, para. 19. 508 YILC (1966-II), at 223, para. 20.
509 Aust, Handbook of International Law (2005), at 95. Oppenheim, supra note 4, at 1277, observes that the preparatory work includes ‘the record of the negotiations preceding the conclusion of a treaty, the minutes of the plenary meetings and of committees of the Conference which adopted a treaty, the successive drafts of a treaty, and so on’.
510 Aust, Handbook of International Law (2005), at 95 (footnote omitted). 511 See Sinclair, supra note 6, at 141.
to bear constantly in mind the historical background against which the treaty has been
negotiated’.
512Neither the text nor the preparatory work may provide this historical
background, which may take into account some wide-ranging factors. Sinclair added,
for example, that under this element of Article 32:
[i]t may also be necessary to take into account the individual attitudes of the parties – their economic, political and social conditions, their adherence to certain groupings or their status, for example, as importing or exporting country in the particular case of a commodity agreement – in seeking to determine the reality of the situation which that parties wished to regulate by means of the treaty.513
261. Aust has further observed that the preparatory work may override the ordinary
meaning in the following circumstances:
It has been suggested that, even when the ordinary meaning appears to be clear, if it is evident from the travaux that the ordinary meaning does not represent the intention of the parties, the primary duty in Article 31(1) to interpret a treaty in good faith requires a court to ‘correct’ the ordinary meaning. This is no doubt how things work in practice; for example, the parties to a dispute will always refer the tribunal to the travaux, and the tribunal will inevitably consider them along with all the other material put before it. The suggestion is therefore a useful addition to the endless debate on the principles of interpretation.514
262. This position is not consistent with the ILC’s intentions as to the exceptional
and limited role of subsidiary means of interpretation extracted above. As regards the
pitfalls of preparatory work, Sinclair drew attention to the following:
the obscurity of a particular text will often find its origin in the travaux préparatoires themselves. The natural desire of negotiators to bring negotiations to a successful conclusion will often result in the adoption of vague or ambiguous formulations. Sometimes the parties will have deliberately wished to avoid too much precision in order to allow themselves in future to argue that the provision as formulated does not commit
512 Sinclair, supra note 6, at 141. Oppenheim addresses this criterion in the following terms:
the circumstances of a treaty’s conclusion may be invoked to ascertain its meaning, since a treaty is not concluded as an isolated act but as part of a continuing series of international acts which shape an limit the circumstances with which the treaty deals.
Oppenheim, supra note 4, at 1278. See also Yasseen,supra note 194, at 90.
513 Sinclair, supra note 6, at 141.
514 Aust, supra note 4, at 197 (footnotes omitted), citing Schwebel, ‘May Preparatory Work Be Used to Correct Rather than Confirm the ‘Clear’ Meaning of a Treaty Provision?’, in Makarczyk (ed.), Theory
of International Law at the Threshold of the 21st Century: Essays in Honour of Krzystof Skubiszewski,
them to an inconvenient or too onerous obligation. Finally, the travaux préparatoires are unlikely to reveal accurately and in detail what happened during the negotiations, since, more often than not, they will not disclose what may have been agreed between the heads of delegations during private corridor discussions.515
263. Finally, Eduardo Jiménez de Aréchaga made the following notable conclusions
in respect of preparatory work:
preparatory work is frequently examined and often taken into account. It may be difficult in practice to establish the borderline between confirming a view previously reached and actually forming it, since this belongs to the mental processes of the interpreter. In any case, the importance of travaux préparatoires is not to be underestimated and their relevance is difficult to deny, since the question whether a text can be said to be clear is in some degree subjective. On the other hand, the separation between Articles 31 and 32 and the restrictions contained in the latter provision constitute a necessary safeguard which strengthens the textual approach and discourages any attempt to resort to preparatory work in order to dispute an interpretation resulting from the intrinsic material set out in Article 31.516
264. It is not uncommon for international courts and tribunals to exercise caution in
cases where their decision may turn on preparatory work.
517b) FIAT Practice
265. The non-mandatory character of Article 32 has led to instances where FIATs
have chosen not to have recourse to the means of interpretation covered by that
provision. A case on point is Sempra Energy, in which the tribunal acknowledged that
Article 31(1) is the ‘principal means of interpretation’ and went on to hold that the
terms of the treaty at issue were sufficiently clear not to resort to supplementary
means of interpretation.
518This subsidiary nature of Article 32 was expressly
515 Sinclair, supra note 6, at 142. For a more detailed and equally enlightening description of the drawbacks of recourse to preparatory work, see Fitzmaurice, supra note 76, at 15-17.
516 Eduardo Jiménez de Aréchaga, ‘International Law in the Past Third of a Century’, 159 Recueil des
cours 1 (1978), at p. 47-48.
517 See, e.g., Border and Transborder Armed Actions (Nic. v. Hon.), ICJ Reports 69 (1988), at 85, para. 37, where the ICJ expressed that caution must be exercised when referring to the travaux préparatoires where it was apparent not all the stages of the drafting of the treaty at issue were the subject of detailed records.
518 Sempra Energy (Jurisdiciton), at para. 142. See also Camuzzi (Jurisdiction), at para. 134 (holding that the treaty was sufficiently clear ‘making it unnecessary to resort to supplementary means’ of interpretation but proceeding to refer to the ‘negotiating history’ to confirm its position); Enron
emphasised in Aguas del Tunari when the tribunal remarked that the ILC Commentary
on this article noted that ‘the “supplemental” role of Article 32 serves to emphasize
the centrality of Article 31’.
519266. Concerning the types of materials that constitute preparatory work, FIAT
jurisprudence is generally consistent with Aust’s description quoted above.
520While
it would be expected that States that have participated in the drafting of a treaty are
privy to these materials, unless they are made available to the public, it is unlikely that
such materials will be accessible to investor claimants. This issue is discussed in
Section VI(F) below.
267. FIATs have provided some practical insights as to how the preparatory work
can be evidenced. Obviously, detailed and comprehensive documents accepted by the
parties relating to the drafting of the text and minutes of discussions or negotiations
are likely to constitute evidence of the highest order.
521In this regard, the documents
and purpose, it is not even necessary to resort to supplementary means of interpretation’) and at para. 32 (indicating that in the circumstances at hand there existed sufficient elements of interpretation in connection with Article 31 of the Vienna Convention that it was not necessary to resort to supplementary means of interpretation); Canfor Corporation (Decision of Preliminary Question), at para. 324 (‘because the language of [NAFTA] Article 1902(2)(b) and Article 1902(2)(c) is so plain that, for interpretive purposes, there is no occasion for recourse to supplementary sources of evidence under the terms of the [Vienna Convention]’) and at para. 265; and Champion Trading (Jurisdiction), 19 ICSID Review, at p. 288. See also Methanex (Final Award), at Part II, Chpt. B, para. 22 (drawing attention to the limited circumstances in which recourse to Article 32 could be had).
519 Aguas del Tunari, at para. 93, citing the ILC’s Commentary to Article 28, para. 18, YILC (1966-II), at 223. See also Noble Ventures (Award), at para. 50 (‘recourse may be had to supplementary means of interpretation … only in order to confirm the meaning resulting from the aforementioned methods of interpretation’); and Klöckner (Annulment), at para. 119, in which the tribunal was reluctant to base an interpretation on the preparatory work.
520 See note 509 above. As an example of the types of materials FIATs consider to constitute preparatory work, see Pope & Talbot (Damages), at para. 39 (referring to a ‘record of discussions leading up to agreement upon the final text of Article 1105 of NAFTA, whether such record consists of negotiating drafts or any other matters’). These are rather obvious embodiments of preparatory work. As to less clear materials, see, e.g., Mondev, in which the tribunal stated
Whether or not explanations given by a signatory government to its own legislature in the course of ratification or implementation of a treaty can constitute part of the travaux
préparatoires of the treaty for the purposes of its interpretation, they can certainly shed light
on the purposes and approaches taken to the treaty, and thus can evidence opinio juris.
Mondev, at para. 111 (footnote omitted).
521 It must be noted that records of the preparatory work that are fragmentary must be used with caution. See, e.g., Rejoinder of the United States of 17 December 2001 to Methanex’s Reply Submission in the
and meeting minutes relating to the ICSID Convention have most conveniently been
published in English, French and Spanish.
522In connection with NAFTA, after some
criticism and controversy about the non-disclosure of the negotiation texts of Chapter
11, on 16 July 2004 the FTC announced their public release.
523In contrast, the
preparatory work of a BIT is relatively difficult to ascertain by the general public,
including the investor.
524268. Concerning the drafting of the ICSID Convention, FIATs have considered the
recollections of Aron Broches as reliable evidence of the preparatory work of the
ICSID Convention. He was chairman of the consultative meetings for the negotiation
of the ICSID Convention and undoubtedly played a major role in the Convention’s
drafting process.
525Statements of delegations to the negotiation of the ICSID
Convention have also been used in support of its interpretation.
526269. In relation to BITs, the Sempra Energy tribunal took the view that ‘the opinion
of those who were responsible for the drafting and negotiation of a State’s bilateral
treaties [is not] irrelevant, in that it serves, precisely, to establish the original
intention’.
527But this type of evidence has its limits. In Eureko, the recollections of
an official negotiating a BIT for one of the State parties was considered to be rebutted
by a contrary recollection by a negotiator for the other State party to that treaty.
528Further, the tribunal in Tza Yap Shum did not consider the testimony of one of the
522 See supra note 40.
523 Available at <www.dfait-maeci.gc.ca/tna-nac/disp/trilateral_neg-en.asp>. Whether this release contains all the relevant documents pertaining to the negotiation history is a subject of contention. See comment in <www.naftaclaims.com>.
524 See particularly Chapter VI, Section F below.
525 See, e.g., Fedax (Jurisdiction), at para. 21 (noting as ‘most pertinent’ the account of the ICSID Convention negotiations by Broches in ‘The Convention on the Settlement of Investment Disputes: Some Observations on Jurisdiction’, 5 Columbia Journal of Transnational Law 261 (1966), at 268 ); and Aguas del Tunari, at para. 284 (referring to the Hague Lectures of Aron Broches).
526 See, e.g., CAA Vivendi (Award), at para. 52. 527 Sempra Energy (Jurisdiction), at para. 145.
528 To support its interpretation of the Netherlands-Poland BIT, Poland submitted in the Eureko case the opinion of a Polish Foreign Ministry official involved in the negotiation of that treaty. This was rebutted by a contrary opinion of a Dutch Foreign Ministry official. Eureko, at para. 185, n. 17.
negotiators to the BIT at issue as convincing evidence of the contracting parties’
intention in regard to the scope of the MFN clause in that treaty.
529270. In many FIAT awards, recourse to preparatory work has not been considered
as an extremely useful aid to treaty interpretation. First and foremost, the preparatory
work is usually treated as subordinate to the text and is often not decisive in itself.
The Siemens case illuminates this point in its finding that no matter how complex or
contested the negotiation process proved to be, the fact that it was a difficult process
still does not dilute the evidentiary strength of the words that were ultimately
agreed.
530Then, access to the preparatory work (particularly by a private individual
or an investor) could prove extremely difficult and, if access is available, the
documentation might be incomplete or inadequate to draw any conclusion. Many
parties to treaties, particularly developing States, do not have the governmental
resources to document the preparatory work relating to treaties they enter. The
tribunal in Aguas del Tunari, for instance, concluded from the evidence that
documentation of the Boliva-Netherlands BIT negotiation history was sparse and that
it ‘offered little additional insight into the meaning of the aspects of the BIT at issue,
neither particularly confirming nor contradicting the Tribunal’s interpretation.’
531Thomas Wälde has observed in this regard that ‘[t]here is a great temptation on
controversial issues to delve into the travaux, but the result of such trawls for
favourable evidence is as a rule not very trustworthy’.
532Additionally, where a body
529 Tza Yap Shum, at para. 212.
530 Siemens (Jurisdiction), at para. 106 (noting that the arduousness of the negotiations process does not affect the legal significance of the text that was eventually agreed). See also Tza Yap Shum, at paras. 166-171 where witness statements were submitted by negotiators of both State parties to the BIT in question but were not given significant weight by the tribunal.
531 Aguas del Tunari, at para. 274. See also Canfor Corporation (Decision of Preliminary Question), at para. 265 (‘the available legislative history of NAFTA does not assist in the interpretation of Article 1901(3), simply because there is none available that is relevant’); Dissenting Opinion of Highet in
Waste Management (Opinion), at 475, para. 44, n. 35 (‘[t]he record before the Tribunal is unfortunately
bare of useful evidence of travaux préparatoires of NAFTA in this regard’); and CAA-Vivendi
(Challenge), at paras. 12 and 24.
532 Thomas W. Wälde, ‘Investment Arbitration under the Energy Charter Treaty: An Overview of Key Issues’, (2004) 1(1) Transnational Dispute Management.
of case law has built up around the interpretation of a certain provision, it may be
more difficult to resort to Article 32. In this connection, the Methanex tribunal stated
[w]here in the course of time there has been a series of decisions on a given provision by international tribunals seized with the task of interpretation; and there has also been an agreement by treaty parties on interpretation, the likelihood of supplementary means of interpretation contemplated by Article 32 of the Vienna Convention being relevant and material must inevitably decline.533
271. Preparatory work evidencing the abandonment or rejection of a drafting
proposal may be considered as providing a meaningful indication as to the intent of
the drafters.
534But there may be circumstances where although the preparatory work
indicates that a proposed provision is rejected during negotiations, it may not
necessarily mean that the intention was to exclude such a provision. This situation
arose in Amco. The tribunal there observed that a vote during the ICSID Convention
drafting process to reject a motion (proposing a provision under which a failure to
state reasons would be a ground for annulment) could not necessarily be regarded as a
manifest objection to the content of the proposed provision because the delegates
voting to reject the motion may simply have found it redundant due to the clause’s
prior approval and adoption in a previous phase of the negotiations.
535272. The AAP tribunal drew attention to the potential benefits that may be derived
from well documented preparatory work in the following passage of its award:
in the absence of travaux préparatoires in the proper sense, it would be almost impossible to ascertain whether Sri Lanka and the United Kingdom had contemplated during their negotiation the necessity of disregarding the common habitual pattern adopted by the previous treaties, and to establish a ‘strict liability’ in favour of the foreign investor as one of the objectives of their treaty protection.536
273. Similarly, in Pope & Talbot the tribunal indicated that a complete negotiating
history—which, despite its requests, was not provided by Canada until the damages
533 Methanex (Final Award), at Part II, Chpt. H, para. 24. 534 Aguas del Tunari, at para. 284.
535 Amco (Annulment), at para. 33.
536 AAP, at para. 51. As to the usefulness of preparatory work, see also Tokios (Jurisdiction), at para. 52.