Shirlow & Waibel: The Impact of Transparent Treaty Negotiations on the Scope and Use of Travaux in Investment Treaty Arbitration

Esme Shirlow (Australian National Univ. - Law) & Michael Waibel (Univ. of Vienna - Law) have posted The Impact of Transparent Treaty Negotiations on the Scope and Use of Travaux in Investment Treaty Arbitration (British Yearbook of International Law, forthcoming). Here's the abstract:

How investment arbitral tribunals use preparatory materials varies significantly. In particular, they have differed in defining the rationale for referring to travaux; when to have recourse to travaux; how to use these materials; and even more fundamentally, what materials to classify as travaux. This article examines each of these issues to consider the opportunities and risks associated with the growing transparency of investment treaty negotiations for arbitral interpretations of investment treaties. Section I illustrates three practical challenges associated with the use of travaux in investment treaty disputes to highlight the potential advantages and pitfalls associated with using travaux. Section II considers what may constitute ‘travaux’. Based on an extensive review of arbitral practice, Section II argues in favour of a sliding scale approach to travaux, whereby a treaty interpreter casts a wide net but differentiates the weight given to materials depending on their propensity to shed light on the joint intention of the States parties. Section III considers how arbitral tribunals have used – and should use – travaux by reference to the interpretive framework established by the VCLT. Section IV considers how investment tribunals have regulated access to and use of travaux through their powers to order document production. Section V concludes.