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Reconciling international investment law and sustainable development with respect to host state's right to regulate : the legal impact of sustainable development objective on indirect expropriation standard and its legitimate expectations sub-element
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Florence : European University Institute, 2014
EUI; LAW; PhD Thesis
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DUBAVA, Ilze, Reconciling international investment law and sustainable development with respect to host state’s right to regulate : the legal impact of sustainable development objective on indirect expropriation standard and its legitimate expectations sub-element, Florence : European University Institute, 2014, EUI, LAW, PhD Thesis - https://hdl.handle.net/1814/32097
Abstract
It is acknowledged that sustainable development, which is generally understood as the achievement of an equal balance between economic development, social progress and environmental protection, is a new paradigm of international investment protection law which requires finding a balance between the State’s regulatory responsibilities and a foreign investor’s interests. This new paradigm is to be taken into account when planning domestic investment policies and drafting future investment agreements. However, this study aims to prove that the sustainable development paradigm, and its consequent extension of protected interests in investment law, is already applicable in the currently existing investment protection regime and in the application of the indirect expropriation standard requiring a reconsideration of the methodologies used for the establishment of indirect expropriation. An investor’s protection against indirect expropriation is a basic component of international investment law, and often investors challenge as expropriatory general legislative acts, administrative measures and compliance measures with noneconomic international obligations of host States dealing with the protection of noneconomic public interests. Investment agreements do not contain a precise definition of indirect expropriation leaving considerable discretion in the hands of adjudicators for deciding what measures do amount to indirect takings in specific cases. Consequently, arbitrators have developed distinct methodologies for the assessment of the existence of indirect expropriation. These methodologies differ regarding their responsiveness to legitimate public welfare objectives that have motivated a State’s interference in a foreign investment raising concerns about the capacity left for host States to exercise their regulatory responsibilities. Therefore, the thesis is designed to prove that sustainable development has reached a capacity to guide the contextual and effective interpretation of the indirect expropriation standard. It is claimed that sustainable development forms part of the object and purpose of the investment protection regime within which the indirect expropriation standard must be applied. Consequently, it requires altering perceptions of applicable law and the methodologies used for the establishment of indirect expropriation requiring focus on wider interests than the ones of foreign investors.
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Defence date: 6 February 2014
Examining Board: Professor Emeritus Ernst-Ulrich Petersmann, European University Institute (Supervisor); Professor Emeritus Francesco Francioni, European University Institute; Professor Markus Ghering, University of Cambridge; Professor Andreas Ziegler, University of Lausanne.
First made available online 17 May 2019
Examining Board: Professor Emeritus Ernst-Ulrich Petersmann, European University Institute (Supervisor); Professor Emeritus Francesco Francioni, European University Institute; Professor Markus Ghering, University of Cambridge; Professor Andreas Ziegler, University of Lausanne.
First made available online 17 May 2019