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Пределы применения «внешнего» права в инвестиционном арбитраже
The article examines the inconsistency of decisions in investment arbitration and identifies the main manifestations of this inconsistency, including contradictory decisions in cases with similar circumstances and the unjustified implementation of legal concepts from other fields of international law without taking into account their specific context. In addition, respondent States, by invoking their regulatory powers in investment disputes, often unjustifiably use provisions of other areas of international law to justify the protection of the public interest. The article emphasises that blurring the line between the "application" and "interpretation" of international law causes uncertainty and may lead to the expansion of arbitral jurisdiction beyond the explicit consent of the parties. The research analysis addresses the principle of consent, which is the cornerstone of arbitration that restricts the scope of the dispute at issue and the applicable law. To resolve the problem of inconsistency of investment arbitral awards, the author advocates for defining the boundaries of applicable law though the interpretation grounded in the treaty’s text and the effet utile principle. By doing so, arbitral tribunals shall be guided by the context, as well as the object and purpose of the bilateral investment treaty. This approach will safeguard the parties’ the consent, promote coherence in investment arbitration and prevent excessively broad interpretation that could lead to unintended consequences.