Ciurtin: Beyond the Norm: The Hermeneutic Function of Treaty Preambles in Investment Arbitration and International Law

Horia Ciurtin (European Federation for Investment Law and Arbitration) has posted Beyond the Norm: The Hermeneutic Function of Treaty Preambles in Investment Arbitration and International Law (Revista Romana de Arbitraj, Vol. 36, no. 4, 2015). Here's the abstract:

The present essay proposes an alternative theoretical framework regarding the notion of normativity in international law, beyond the dominant kelsenian-positive paradigm. By using a decisionist approach, it is shown how the preambles of international treaties are conceptualized and instrumented so as to serve a non-literal exegesis of the relevant legal norms. Thus, not only the general rule of VCLT is taken into consideration, but also the underlying principles that guarantee its effectiveness. As regards the BITs, our inquiry begins by analyzing the structure of preambles and their latest evolutions, continuing by explaining the influence that such instruments actually played in investment arbitration case-law, as well as the role they exerted in expanding the rights of the investors in relation to indeterminate standards such as FET.