Regulatory Expropriation and Sustainable Development
SUSTAINABLE DEVELOPMENT IN INTERNATIONAL INVESTMENT LAW, M.W. Gehring, M.C. Cordonnier-Segger and A. Newcombe, eds., Kluwer Law International, Forthcoming
23 Pages Posted: 27 Oct 2010
Date Written: July 10, 2010
The international law of regulatory expropriation has received considerable attention in recent legal writings, case law and State practice. Concerns of indirect expropriation and its regulatory aspects can be articulated in terms of sustainable development, particularly regarding the principles of integrated environmental protection and good governance. This perspective is valuable since much of the thinking behind recent treaty practice and case law on regulatory expropriation appears to be grappling with precisely these issues, balancing the protection of the environment and the preclusion of regulatory chill while fostering an improved regulatory culture. This chapter examines the impact of customary law of expropriation on the interpretative process of investment treaty rules of expropriation. It is argued that State practice emphasising the non-compensable nature of regulation adopted for certain purposes is counter-intuitively negative for the perspective of sustainable development. These developments are superfluous regarding the non-compensable aspects and disrupt the delicate balance classically provided by the purpose-neutral international due process.
Keywords: Regulatory Expropriation, Sustainable Development, Investment Protection Law, Treaty Interpretation, Customary Law
JEL Classification: F02, F10, F13, F14, F15, K33
Suggested Citation: Suggested Citation