CL-2022-000304 - [2025] EWHC 1553 (Comm)

Fecha: 20-Jun-2025

Interpreting the BIT: generally

Interpreting the BIT: generally

69.

Article 31 of the Vienna Convention on the Law of Treaties (“the Vienna Convention”) provides:

“(1)
A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
(2)
The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
(3)
There shall be taken into account, together with the context:

(a)

any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

(b)

any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

(c)

any relevant rules of international law applicable in the relations between the parties.

(4)

A special meaning shall be given to a term if it is established that the parties so intended.”

70.

Article 32 of the Vienna Convention provides:

“Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a)
leaves the meaning ambiguous or obscure; or
(b)
leads to a result which is manifestly absurd or unreasonable.”

71.

The Court of Appeal said of the Court’s task in MSC Mediterranean Shipping Co SA v Stolt Tank Containers BV[2023] EWCA Civ 1007 at [61]:

"Thus the court's task, as set out in Article 31 of the Vienna Convention, is to ascertain the ordinary meaning of the terms used in their context and in the light of the Convention's object and purpose, with recourse to supplementary means of interpretation either to confirm the meaning thus ascertained or, in the strictly limited cases identified in Article 32(a) and (b), to determine the meaning."

72.

In Moohan v Lord Advocate[2014] UKSC 67 at [64] the Supreme Court said (and see JTI Polska Sp Z.o.o. v Jakubowski [2023] UKSC 19 at [26]-[27]):

"It would be wrong to read article 31 as reflecting something like the so-called 'golden rule' of statutory interpretation where one starts with the ordinary meaning of the words and then moves to other considerations only if the ordinary meaning would give rise to absurdity. That is not international law. The International Law Commission made clear in its commentary to the draft treaty, at p 219, that, in accordance with the established international law which these provisions of [the Vienna Convention] codified, such a sequential mode of interpretation was not contemplated:

'The commission, by heading the article 'General rule of interpretation' in the singular and by underlining the connection between paras 1 and 2 and again between para 3 and the two previous paragraphs, intended to indicate that the application of the means of interpretation in the article would be a single combined operation.'"

73.

In The Czech Republic v Diag Human SE [2024] EWHC 2102 (Comm), one of a number of judgments in this area by Foxton J to which I acknowledge my debt generally and to which I make further reference below, Foxton J drew on Gardiner, Treaty Interpretation 2^nd edition (2015) at 4.2.3 to bring out the point that for the purposes of Article 31(2) of the Vienna Convention, context can also include "any structure or scheme underlying a provision or the treaty as a whole".

74.

Turning to investment treaties in particular, in Republic of Korea v Elliott Associates LP [2024] EWHC 2037 (Comm) Foxton J held at [22]-[23], an “even-handed” approach should be adopted:

“22.
It has also been suggested that the jurisdictional provisions in investment treaties are to be interpreted neither liberally (i.e. pro-investor) nor restrictively (i.e. pro-State): e.g. Swissbourgh v Lesotho [2018] SGCA 81 at [61]-[63]. By way of an apparent counter to that proposition, Mr Wordsworth KC referred me to ICS Inspection and Control Services Limited v Argentina PCA Case No 2010-9 Award on Jurisdiction 10 February 2012 (Dupuy, Bernardez, Lalonde), [280]-[281] where the tribunal noted that:
"Moreover, a State's consent to arbitration shall not be presumed in the face of ambiguity. Consent to the jurisdiction of a judicial or quasi-judicial body under international law is either proven or not according to the general rules of international law governing the interpretation of treaties. The burden of proof for the issue of consent falls squarely on a given claimant who invokes it against a given respondent. Where a claimant fails to prove consent with sufficient certainty, jurisdiction will be declined.
This principle follows from the lack of a default forum for the presentation of claims under international law. Whereas the inherent jurisdiction or hermetic division of competence over claims before general courts is a common feature of municipal judicial systems, the default position under public international law is the absence of a forum before which to present claims. The absence of a forum before which to present valid substantive claims is thus a normal state of affairs in the international sphere. A finding of no jurisdiction should not therefore be treated as a defect in a treaty scheme that runs counter to its object and purpose in providing for substantive investment protection."
23.
However, I am satisfied that the statement in Swissbourgh represents the approach I should adopt, being consistent with [the Vienna Convention], and even-handed. I note that an argument by a state that a dispute resolution provisions to which it has consented in a treaty should be construed narrowly was rejected in Methanex Corporation v United States of America, Partial Award (Preliminary Award on Jurisdiction and Admissibility) 7 August 2002, [105], where the tribunal favoured an interpretation of the words used "in good faith in accordance with their ordinary meaning (in accordance with Article 31(1) of the Vienna Convention), without any one-sided doctrinal advantage built in to their text to disadvantage procedurally an investor seeking arbitral relief." A similar observation was made in Mondev International Ltd v USA ICSID Case No ARB(AF)/99/2, Award of 11 October 2002 (Stephen, Crawford, Schwebel), [43].”