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The Right of States to Regulate in International Investment Law: The Search for Balance Between Public Interest and Fair and Equitable Treatment

ISBN13: 9789403509310
Published: July 2019
Publisher: Kluwer Law International
Country of Publication: The Netherlands
Format: Hardback
Price: £141.00

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The Right of States to Regulate in International Investment Law addresses the balance between the host state’s right to regulate and the investor’s right to obtain a fair and equitable treatment (FET) standard under international investment law. Due to the recent ongoing expansion of public interest issues worldwide, the state’s right to regulate has been recaptured as a prominent concept in international investment law. The FET’s standard provision in the text of an international investment agreement (IIA) has become a detailed clause clarifying the specific obligations of a state towards an investor under the FET standard. However, striking the right balance in these new treaty formulations has proved to be challenging. This book greatly clarifies the field by offering in-depth analysis of the application of the state’s right to regulate in relation to FET standard provisions in IIAs and to decisions by arbitral tribunals in FET cases.

What’s in this book:

Recognising that the role of tribunals is to balance the state’s public interests and the interests of an investor when interpreting and applying the FET standard, the author pursues such seminal issues and topics as the following:

  • the legitimacy of the objective of the state’s measure;
  • obligations and responsibilities of investors towards a host state;
  • the nature and impact of a change to a national regulatory framework;
  • special economic and sociopolitical circumstances in a host state; and
  • due diligence and risk assessment as a condition for the protection of an investor’s legitimate expectations.
Multiple IIAs concluded by OECD Member States, as well by Russia and China, and the prominent investment law cases on the FET standard are examined in detail. The analysis pays particular attention to how investment jurisprudence in FET cases has been reflected in such new IIAs as the Comprehensive Economic and Trade Agreement (CETA) between the European Union (EU) and Canada, the EU-Vietnam FTA and the EU-Singapore FTA. These case studies demonstrate the evolution of the IIAs’ FET standard provisions and how they balance the application of the FET standard and the state’s right to regulate. Suggestions are provided for drafting formulations of the FET standard that can contribute to achieving such a balance. Case commentary and other secondary literature are referred to throughout. An annex includes texts of selected bilateral and regional investment treaties.

How this will help you:

In the clear light it sheds on the legal conditions under which states may regulate in the public interest and its contribution to the reforms that are currently taking place in the field of international investment law, this book constitutes an exemplary framework to evaluate investment decisions on the FET standard and the right to regulate. It will be extremely useful for practitioners who work on investment cases, policymakers involved in negotiating and drafting of IIAs, policy advisors of governmental and non-governmental organisations and academics in international investment law.

International Investment Law
International Investment Agreements and the Right to Regulate: An Introduction
The Fair and Equitable Treatment Standard in International Investment Agreements
Investment Jurisprudence on the FET Standard and the Right to Regulate: A General Overview
Introduction to the Legal Conditions on the Right to Regulate Identified by Tribunals
The State’s Right to Regulate and the Legitimate Expectations of the Investor
Conditions for a State to Lawfully Exercise Its Right to Regulate
Towards a More Balanced Approach
Selected Bilateral Investment Treaties
Regional Treaties
Categories of the IIAs’ FET Standard Formulations
Investment Cases

Series: International Arbitration Law Library

Arbitrators and Arbitral Institutions: Liability and Insurance ISBN 9789403509051
To be published July 2020
Kluwer Law International
Complex Arbitrations: Multiparty, Multicontract & Multi-Issue 2nd ed ISBN 9789403512617
To be published June 2020
Kluwer Law International
Interpretation of Contracts in Comparative and Uniform Law ISBN 9789403511306
Published May 2019
Kluwer Law International
The Decision Making Process of Investor-State Arbitration Tribunals ISBN 9789041196002
Published January 2019
Kluwer Law International
The Functions of Arbitral Institutions ISBN 9789041162175
Published August 2016
Kluwer Law International
Party-Appointed Arbitrators in International Commercial Arbitration ISBN 9789041166715
Published April 2016
Kluwer Law International
International Arbitration and Cross-Border Insolvency: Comparative Perspectives ISBN 9789041154194
Published September 2014
Kluwer Law International
Piercing the Veil of State Enterprises in International Arbitration ISBN 9789041151629
Published April 2014
Kluwer Law International
International Arbitration and the Permanent Court of Arbitration ISBN 9789041147660
Published August 2013
Kluwer Law International
Challenge and Disqualification of Arbitrators in International Arbitration ISBN 9789041137999
Published January 2012
Kluwer Law International
China-Africa Dispute Settlement: The Law, Economics and Culture of Arbitration ISBN 9789041136749
Published November 2011
Kluwer Law International
Confidentiality in International Commercial Arbitration ISBN 9789041132260
Published July 2011
Kluwer Law International
Bias Challenges in International Arbitration: The Need for a Real Danger Test ISBN 9789041131911
Published November 2009
Kluwer Law International
Arbitrability: International & Comparative perspectives ISBN 9789041127303
Published March 2009
Kluwer Law International
Force Majeure and Hardship Under General Contract Principles ISBN 9789041127921
Published January 2009
Kluwer Law International
Pervasive Problems in International Arbitration ISBN 9789041124500
Published May 2006
Kluwer Law International
Provisional Measures in International Commercial Arbitration ISBN 9789041123534
Published August 2005
Kluwer Law International
Corruption in International Trade and Commercial Arbitration ISBN 9789041122360
Published March 2004
Kluwer Law International
The Healthy Award: Challenges in International Commercial Arbitration ISBN 9789041120113
Published March 2003
Kluwer Law International
The International Effectiveness of the Annulment of an Arbitral Award ISBN 9789041117175
Published January 2002
Kluwer Law International
Arbitration in Complex International Contracts ISBN 9789041116628
Published October 2001
Kluwer Law International
Insolvency Proceedings and Commercial Arbitration ISBN 9789041111159
Published June 2000
Kluwer Law International
Arbitration and Mediation in International Business ISBN 9789041102423
Published June 1998
Kluwer Law International
Out of print
Iran-United States Claims Tribunal in Action ISBN 9781853339028
Published March 1993
Brill Academic Publishers
Out of print