Catharine Titi

The Right to Regulate in International Investment Law

• Gebundenes Buch

Produktbeschreibung

Since the inception of the international investment law system, investment promotion and protection have been the raison d'être of investment treaties and states have confined their policy space in order to attract foreign investment and protect their investors abroad. Languishing in relative obscurity until recently, the right to regulate has gradually come to the spotlight as a key component of negotiations on new generation investment agreements around the globe. States and regional organisations, including, notably, the European Union and the United States, have started to examine ways in which to safeguard their regulatory power and guide - and delimit - the interpretive power of arbitral tribunals, by reserving their right to pursue specific public policy objectives. The monograph explores the status quo of the right to regulate, in order to offer an appraisal and a reference tool for treatymakers, thus contributing to a better understanding of the concept and the broader discourse on how to enhance the investment law system's legitimacy.

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Produktdetails

• Verlag: Bloomsbury Academic
• Seitenzahl: 240
• Erscheinungstermin: 9. Juni 2014
• Englisch
• Abmessung: 224mm x 155mm x 25mm
• Gewicht: 635g
• ISBN-13: 9781849466110
• ISBN-10: 1849466114
• Artikelnr.: 40758996

Autorenporträt

Catharine Titi works on issues in international investment law and international arbitration.

Inhaltsangabe

I. Introduction II. The right to regulate: general observations A. The
right to regulate: what's in a name. B. . and what's not in the name 1.
Limiting the scope of investment protection 2. Deference afforded at
tribunal discretion 3. Clarifications and interpretative statements 4.
Doing away with investor-state dispute settlement 5. Elimination of the
umbrella clause 6. Exceptions versus reservations C. Concluding remarks
III. The right to regulate in context A. The pre-modern-investment-world
regime B.WTO law, EU law and the European Convention on Human Rights C.
Some developments at the bilateral level D.Developments at the plurilateral
level: the Trans-Pacific Partnership Agreement E.Developments at the
collective level: the right to regulate and European investment agreements
F. Concluding remarks IV. The rationale for inserting a right to regulate
A. Arbitration as a perceived threat to state regulatory freedom B. Policy
space as a remedy to a systemic imbalance C. Concluding remarks V. Types of
regulatory interests A. General observations B. Essential security
interests 1. General observations on essential security interests
2.Essential security interests, economic crises and economic security
3.Essential security interests and access to strategic industries 4.
Essential interests 5. International peace and security 6. Circumstances of
extreme emergency C. Public order (ordre public) D. Regulation in the
public interest E. Concluding remarks VI. Positive language on regulatory
interests A. Positive language B. 'Declaratory' right to regulate C. The
right to regulate and the preamble D. Concluding remarks VII. The right to
regulate in IIAs A. General observations B. The right to regulate in the
respective standards of treatment 1. General remarks 2.The right to
regulate and the contingent standards of treatment: most-favoured-nation
treatment and national treatment i. General observations ii. The REIO
exception in the contingent standards iii.Idiosyncratic exceptions to the
non-discrimination standards iv. Non-extension of the MFN treatment to ISDS
v.The right to regulate and the 'in like circumstances' formula 3.The right
to regulate and the fair and equitable treatment,the minimum standard of
treatment and full protection and security 4. The right to regulate and
expropriation i. The right to regulate and expropriation in general
ii.Exception to the expropriation standard modelled on the ECHR - A
consideration de lege ferenda? 5. The right to regulate and the free
transfer of capital i.Exceptions relating to bankruptcy,
securities'trading, criminal offences, compliance with adjudicatory
proceedings and the soundness of financial institutions ii.Temporary
derogations in case of balance-ofpayments crises and difficulties for
monetary and exchange rate policies iii.The REIO exception and capital
transfers (EU/BIT Judgments-related exception) 6. The right to regulate and
performance requirements 7. The right to regulate and provisions on
compensation for losses C.The right to regulate as a general regulatory
clause (or general exceptions applicable to the entire treaty) 1. General
remarks 2. General regulatory clauses and the public interest ('General
exceptions' modelled after Article XX GATT or the right to regulate by
subject: the public interest) i. General exceptions clauses modelled after
Article XX GATT ii. Relevance of GATT/WTO jurisprudence iii. Relevance of
general exceptions clauses modeled after Article XX GATT to specific
standards of treatment and regulatory interests a. Expropriation b.
National and most-favoured-nation treatment c. Fair and equitable
treatment, minimum standard of treatment and full protection and security
d. Transfers of capital e. Performance requirements f. The chapeau (or
equivalent) and national security exceptions D. Concluding remarks 11 The
nexus requirement, self-judging clauses and the standard of review of
exceptions VIII. A. The nexus requirement B. 'The State considers' -
Self-Judging clauses 1. General 2. The standard of review of self-judging
clauses C.The standard of review in the absence of a self-judging clause
D. Concluding remarks IX. The right to regulate by subject A. Essential
security interests B. Taxation C. Cultural diversity 1. Introduction 2. The
exception for cultural diversity 3. Considerations for cultural policy
outside the stricto sensu investment context 4. Cultural exception,
exception for cultural policy and the investment law context i. The
Multilateral Agreement on Investment and the exception for culture
ii.France and 'the framework of measures designed to preserve and promote
cultural and linguistic diversity' iii. The European Union and the
promotion of cultural diversity iv. The Canadian approach: carving cultural
industries out of the scope of the agreement D. Concluding remarks X. The
right to regulate beyond IIAs in general international law A. The right to
regulate under customary international law as reflected in the ILC Articles
1. General 2. Necessity i. Necessity and the criteria for its successful
invocation ii. Practical availability of the necessity defence iii. Does
customary international law provide a national security defence? 3. Force
majeure and distress 4. Legal nature and effects of upholding a defence
under the ILC Articles i. Legal nature and operation of the defence ii.
Compensation 5. ILC defences and the right to regulate. Some further
reflections B. Ius cogens C. The clausula rebus sic stantibus and bribery
D. Concluding remarks XI. Arbitral jurisprudence on the right to regulate
(beyond IIAs and general international law) and the question of an implicit
right to regulate A. General observations B. Arbitral jurisprudence and the
legitimate interests of the host state (examination by standard) 1. The
fair and equitable treatment 2. Expropriation 3. Concluding remarks C. The
protection of essential security interests in the absence of an express
treaty-based right to regulate D. Are explicit treaty exceptions necessary
to reserve policy space? E. Is an explicit treaty-based right to regulate
harmful to regulatory freedom? F. Concluding remarks VI. Conclusion