Lunch seminar with Caroline Henckels

The metaphor of dialogue and investor-state dispute settlement


The public law model of interpretive dialogue describes the interaction between legislatures and courts when interpreting constitutional rights. This model may also be apt to describe the relationship between states and investment tribunals when interpreting provisions of investment treaties. This article observes several instances of state-tribunal interaction, suggesting that dialogical mechanisms are to some extent affecting the evolution of international investment law in the manner that states intend, but not consistently so. Tribunals have in some cases accepted states’ views as to the meaning of treaty provisions in relation to states’ interventions as non-disputing parties, internal documentation of states related to the conclusion of a treaty, and unilateral interpretations of treaty provisions. In relation to what the article terms ‘second look’ cases, tribunals have also in some instances afforded a measure of deference to states’ responses to prior tribunal decisions in relation to joint interpretations of treaty parties and the creation of a new model bilateral investment treaty. Overall, however, states’ attempts to engage in dialogue with tribunals has had mixed success. This suggests that in order to secure interpretations of investment treaties that accord with their intentions, states should not rely solely on dialogic mechanisms, but may also need to take further steps to clarify their investment treaties through renegotiation and ensuring new treaties are adequately precise.

Speaker bio

Dr Caroline Henckels is an Associate Professor in the Faculty of Law at Monash University. Caroline researches in the areas of public international law (with a focus on international economic law) and public law, and has published with the European Journal of International Law, the Journal of International Economic Law, the International and Comparative Law Quarterly and Cambridge University Press, among others. She is a member of the Editorial Board of the Journal of International Economic Law and UNCTAD's Transnational Corporations journal, and is an Associate Editor of the Journal of World Investment and Trade. Caroline also serves as peer reviewer for numerous academic journals and book publishers. Before joining Monash, Caroline was a Vice-Chancellor's Postdoctoral Research Fellow in Law at the University of New South Wales. She has also taught law at the University of Cambridge and the University of Melbourne. She holds a PhD from the University of Cambridge, an LLM from the University of Melbourne and an LLB from Victoria University of Wellington. Caroline is admitted to practice law in the Australian federal, New Zealand and Victoria state jurisdictions, and practices as a Clinical Supervisor at Monash Law Clinics, running the Faculty's TradeLab clinical program in international trade and investment law. 

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