Defining the Ambit of Regulatory Takings
Susy Frankel and Deborah Ryder (eds.) Recalibrating Behaviour: Smarter Regulation in a Global World (2013)
32 Pages Posted: 4 Aug 2013 Last revised: 17 Mar 2015
Date Written: August 1, 2013
This paper analyses the scope of property rights and the ambit of so-called regulatory takings; that is if owners’ should be compensated, or not, when regulation effects their property. The paper discusses how investment assets are protected as a kind of property through trade and investment agreements and contrasts that with protection of property at domestic law. The paper frames what property rights are protected in New Zealand, why there is not a regulatory takings regime and whether in assessing if there should be a regulatory takings regime whether there should equally be a regulatory givings regime. The paper discusses the property impairment regime that was proposed in the Regulatory Standards Bill 2011 and the later Treasury Option 5 approach that proposes the use of explanatory notes for Parliament to disclose any matter affecting property rights action. The paper discusses where the line should be drawn between what does and what does not amount to a regulatory taking using examples relating to public health, environmental regulation and resource expropriation.
Keywords: regulatory takings, property rights, investment agreements
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