The European Union’s new Free Trade and Investment Agreements
are meant to tackle many of the issues that led to the contestation of
international investment law by increasing the control of the contracting
parties over the agreements. One such mechanism is allowing the contracting
parties via treaty committees to adopt interpretations of the agreements that
are binding on arbitral tribunals and domestic authorities. After a brief
historical overview of the way in which this mechanism found its way into the
European Union’s Free Trade and Investment Agreements, this article discusses
four main issues: (a) the meaning of ‘serious concerns’ regarding the
interpretation of investment provisions; (b) the binding nature of committee
interpretations from the perspective of arbitral tribunals and the Court of
Justice of the European Union; (c) the temporal application of committee
interpretations; and (d) their practical operation. As a conclusion, several
recommendations are provided that are meant to improve the current ‘binding
interpretations’ clauses, before they become model clauses used in future Free
Trade and Investment Agreements.