Originally from Investment Treaty Arbitration and International Law Volume 17

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INTRODUCTION

For centuries, lawyers across the globe have had to confront two perennial issues: change and ambiguous drafting. Social, political, and other changes often present difficulties for legal analysis. In commercial litigation and arbitration, the passage of time can result in changes to commercial practices which courts and tribunals must be sensitive to and in other cases the passage of time will lead to changes to the procedures by which they determine disputes. In public international law, too, the birth, life, and death of various States presents difficult questions of law, such as whether a treaty continues to apply to a successor State. 
Most importantly for this paper, our definitions and understanding of certain concepts are routinely the subject of change; our understanding of what it means for a dispute to be resolved by third parties who are neutral and independent has changed and continues to change with the important ongoing work on diversity in arbitral appointments. By the same token, the mechanisms for enforcing an arbitral award have also evolved over the years and have consequently redefined our idea of enforceability; lawyers of the nineteenth century could not have predicted that domestic courts would routinely come to apply the New York Convention to enforce arbitral awards. 

Similarly, courts or tribunals have always done their best to work out the intention of the parties despite ambiguous drafting. That ambiguity may arise because of poor linguistic drafting. On other occasions, the ambiguity lies not in the authors’ drafting, but rather because of significant changes to the legal order and commercial practices which make it difficult for the modern reader to understand immediately what the parties intended; in such cases, those with the responsibility of interpreting the contract or treaty will invariably be assisted by a proper understanding of legal history and the context in which the document was signed. 

Interpreting an agreement without a secure understanding of the factual, legal, and social context is likely to result in errors of analysis. Such was the case in the decision of the Paris Cour d’Appel in Kiram v. Malaysia (Kiram).  The central thesis of this paper is that the Cour d’Appel’s judgment was incorrectly decided because of its failure to grapple with the history of dispute resolution in the nineteenth century and the influence of colonialism on party choice in arbitral appointments. To put it another way, in considering the pre-text, the Cour d’Appel failed to embark on a proper exercise of legal history. Had it done so, it would have been able to readily identify the intention of the parties and to enforce the arbitration agreement.