424 / 536
410
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.