Refining the Expropriation Clause: What Role for Proportionality?
In Julien Chaisse (ed.) China-European Union Investment Relationships: Towards a New Leadership in Global Investment Governance?, Edward Elgar Publishing, 2018, p. 111-130.
16 Pages Posted: 5 Jun 2017 Last revised: 10 Apr 2020
Date Written: June 1, 2017
The role of proportionality in international investment law is largely conditioned on whether proportionality is considered a general principle of law or an element of material law, applicable only when explicitly or implicitly incorporated into a given set of rules. The chapter explores proportionality in relation to the expropriation standard in light of new investment treaty formulations and with a particular reference to the context of the EU-China investment negotiations. It discusses the dual approach to proportionality, as a general principle of law and as an element of substantive law. To better understand the function of proportionality, it establishes a comparative context, detailing the case law of the WTO’s adjudicative bodies, the CJEU and the ECtHR. It then turns to proportionality analysis in investment treaty arbitration, its explicit incorporation in IIAs, it addresses some related criticisms and argues that proportionality can be a useful tool for balancing competing interests.
Keywords: Proportionality, expropriation, police powers doctrine, general principles of law, margin of appreciation doctrine, necessity test, balancing of interests, investment arbitration, EU-China negotiations
JEL Classification: F02, F13, F21, F53, K41, K39, K40, K10, K33, K49, K12, K19, K20, K29, H70, E22, H87, F50, F52
Suggested Citation: Suggested Citation