Should Investment Treaties Contain Public Policy Exceptions?

Boston College Law Review, Symposium Edition, Reforming International Investment Law: Opportunities, Challenges, Paradigms, 2018

Monash University Faculty of Law Legal Studies Research Paper No. 3209902

20 Pages Posted: 11 Jul 2018 Last revised: 19 Apr 2019

See all articles by Caroline Henckels

Caroline Henckels

Monash University - Faculty of Law

Date Written: July 1, 2018

Abstract

The increasing inclusion of exceptions in newly concluded investment treaties, together with the divergent manner in which tribunals and annulment committees have approached these provisions, suggests that a greater understanding of their role and purpose is needed. In particular, the question whether exceptions operate as permissions or as defenses is a crucial but unaddressed issue that has significant implications for both litigation and practice and, in turn, implications for the stability of the regime. This paper argues that as a starting point, exceptions should be understood as permissions that limit the scope of the substantive treaty obligations, and not as defenses invoked to justify prima facie unlawful conduct. Understanding exceptions as permissions has several advantages, including the avoidance of double-counting a government’s motivation for its conduct or, more problematically, failing to take regulatory purpose into account when determining whether a government has complied with the treaty’s substantive obligations. Understanding exceptions as permissions sends signals to adjudicators in relation to issues such as the appropriate standard of review. The paper also explores the desirability of including exceptions in treaties in light of recent innovations that clarify the substantive content of investment obligations. Although the uncertain analytic character of existing exceptions risks constraining rather than preserving regulatory space, hey may be an important failsafe in light of current institutional arrangements for investor-state dispute settlement, which effectively preclude review for error of law. The paper concludes that the relationship between standards of investment protection and exceptions needs further consideration, and suggests that states negotiating investment treaties ought to take a step back and more holistically consider the aims of the regime and the role of exceptions therein.

Suggested Citation

Henckels, Caroline, Should Investment Treaties Contain Public Policy Exceptions? (July 1, 2018). Boston College Law Review, Symposium Edition, Reforming International Investment Law: Opportunities, Challenges, Paradigms, 2018; Monash University Faculty of Law Legal Studies Research Paper No. 3209902. Available at SSRN: https://ssrn.com/abstract=3209902 or http://dx.doi.org/10.2139/ssrn.3209902

Caroline Henckels (Contact Author)

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

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