Over the course of this research, it became apparent that treaty-based tribunals feature textualism among their most noticeable interpretative preferences. As there was no opportunity to step out from the normative perspective and concentrate on mapping and explaining all interpretative preferences in more detail, this work concludes by indicating them as a future area of research.
The future studies would draw on what has been done in this work empirically and normatively. Their epicentre, however, would rather move to the boundaries of law with other disciplines. Institutional and inter-disciplinary explanations of the interpretative preferences could prove most revealing in this respect.
An institutional perspective would concentrate on how the organisational structure and existent social context influence the tribunals’ approaches towards contract interpretation in investment treaty arbitration. It would be particularly revealing to find institutional explanations for prevailing preferences. A full-scale analysis of the tribunals’ composition and background, together with the dominant expertise of party representatives, would be central to this future research.
The inter-disciplinary study of contract interpretation in investment treaty arbitration would explain interpretative preferences from the perspectives of law & economics,1 language &
In other words, future efforts may contribute to further unpacking contract interpretation by mapping and explaining existing interpretative preferences and confronting or supporting reliance on national law in contract interpretation in investment treaty arbitration. All this would enable a better understanding of contract interpretation as legal reasoning in investment treaty arbitration for which this work has hopefully provided a necessary empirical and normative foundation.
Law & economics perspective on contract interpretation results in a constantly growing corpus of literature focused on maximisation of the efficiency of the parties’ bargaining through interpretation. I wish to thank Professor Henrik Lando (Copenhagen Business School) for the discussion and suggestions on the perspective of law & economics during the course on Collaborative Contracts and Knowledge Share conducted on 27 May 2019 at the Centre for Enterprise Liability (cevia) Faculty of Law of the University of Copenhagen. On the law & economics perspective on contract interpretation which is of relevance for approaching contract interpretation in investment treaty arbitration, see Steven Shavell, ‘On the Writing and the Interpretation of Contracts’ (2006) 22(2) Journal of Law, Economics, and Organization 289; Richard A Posner, ‘The Law and Economics of Contract Interpretation’ (2004) John M Olin Program in Law and Economics Working Paper No 229 <
I wish to thank to Professor Lawrence M Solan (Brooklyn Law School) for suggestions on linguistic approaches given in the course of the First International Language and Law Association (illa) Focus Workshop ‘Computers, Language, and Law: Spotlight on Blind Spots’ in Copenhagen, 7–8 September 2018. For a language & law perspective, see Lawrence M Solan, Terri Rosenblatt and Daniel Osherson, ‘False Consensus Bias in Contract Interpretation’ (2008) 108(5) Columbia Law Review 1268; Lawrence M Solan, ‘Patterns in Language and Law’ (2017) 6 International Journal of Language & Law 46; Peter M Tiersma and Lawrence M. Solan (eds), The Oxford Handbook of Language and Law (Oxford University Press 2012).
I wish to thank to Professor Mark Turner (Case Western Reserve University) for a supportive and encouraging discussion of the cognitive perspective of law more generally, and contract interpretation in particular, that followed his lecture on Cognitive Textual Interpretation in the framework of the Interdisciplinary Research School ‘Authoritative Texts and Their Reception’ (aatr) in Trondheim on 23 October 2018. For a cognitive perspective on contract interpretation, see, for instance, Beverly Horsburgh and Andrew Capper, ‘Cognition and Common Sense in Contract Law’ (2016) 16(4) Touro Law Review 1091; Melvin A Eisenberg, ‘The Limits of Cognition and the Limits of Contract’ (1995) 47(2) Stanford Law Review 211.