The Meaning of Silence in Investment Treaties

Abstract

Abstract The ambiguity of key terms in investment treaties, such as ‘investment’, ‘fair and equitable treatment’ and ‘fair market value’, has been subject to extensive analysis. Less attention has been paid to the silence of investment treaties on numerous issues that routinely arise in practice. This article argues that treaty silence has played a critical role in the development of international investment law. It shows that arbitrators frequently adopt a creative approach to silence resulting in expansive interpretations, and argues that this approach stands in tension with several fundamental principles of public international law. The article concludes by highlighting considerations drawn from its analysis for arbitrators, treaty drafters and the international legal order.