CYIL Vol. 7, 2016

KATARÍNA CHOVANCOVÁ CYIL 7 ȍ2016Ȏ Short of the complete conclusion, two issues deserve special mention. First, it should be clear that international trade and investment are merging. Second, one expression of their convergence has been a cross-fertilization and internalization of various rules among both areas. Suffice it to say that an application of the WTO approach to the interpretation of the BIT based necessity doctrine by the investment tribunal in the Continental case is just one product of the continuous convergence of two nowadays inseparable parts of international law, which certainly has its limits. As anointed commentators of the NPM clauses in BITs concluded, “Whatever the treaty clause in question, even ad hoc tribunals must undertake the diligent process of treaty interpretation called for by the Vienna Convention and deserved by investors and states alike.” 106 By dutifully following this path, even a limited reliance on the WTO doctrine of necessity by investment tribunals should not be perceived as a desecration of traditional methods of the interpretation in international law. Indeed, suggesting investment tribunals to act a contrario would be, however, a reactionary and seamless fallacy in principle instead.

106 BURKE-WHITE W., VON STADEN A.: Investment Protection in Extraordinary Times, op. cit ., p. 410.

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