Abstract

http://ssrn.com/abstract=1663025
 


 



Environmental and Health Regulation: Assessing Liabilities Under Investment Treaties


Rahim Moloo


Freshfields Bruckhaus Deringer

Justin M. Jacinto


White & Case LLP

August 20, 2010

Berkeley Journal of International Law, Vol. 29, p. 1, 2011

Abstract:     
Numerous investors have filed arbitration claims alleging that a state’s enactment of a regulatory measure purportedly aimed at protecting human health or the environment constituted a violation of the state’s investment treaty obligations. The question of when a regulatory measure should be treated as a compensable indirect expropriation has received the most attention from commentators. However, in advancing such claims, investors typically also rely on the fair and equitable treatment and non-discrimination standards. For all three, a threshold question is whether the state measure was legitimate. In answering that question, tribunals focus on the procedural soundness of the measure and whether it was motivated by proper regulatory objectives. The overall legal framework thus deviates significantly from the approach taken in the international trade law context, and appears to provide limited space for a claimant to prevail on a claim relating to a bona fide environmental or health regulation.

Number of Pages in PDF File: 65

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Date posted: August 22, 2010 ; Last revised: June 14, 2014

Suggested Citation

Moloo, Rahim and Jacinto, Justin M., Environmental and Health Regulation: Assessing Liabilities Under Investment Treaties (August 20, 2010). Berkeley Journal of International Law, Vol. 29, p. 1, 2011. Available at SSRN: http://ssrn.com/abstract=1663025

Contact Information

Rahim Moloo (Contact Author)
Freshfields Bruckhaus Deringer ( email )
601 Lexington Ave
31st Floor
New York, NY 10022
United States
Justin M. Jacinto
White & Case LLP ( email )
United States
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