Missing in Action: General Public Policy Exceptions in Investment Treaties

in: Lisa Sachs, Jesse Coleman, Lise Johnson (eds.), Yearbook on International Investment Law and Policy, New York: Oxford University Press, 2018 (Forthcoming)

Ottawa Faculty of Law Working Paper No. 2018-22

28 Pages Posted: 31 Aug 2018 Last revised: 8 May 2019

See all articles by Wolfgang Alschner

Wolfgang Alschner

University of Ottawa - Common Law Section

Kun Hui

University of Ottawa, Faculty of Law

Date Written: August 22, 2018

Abstract

In an effort to balance investment protection with other policy concerns states are increasingly inserting general public policy exceptions into their international investment agreements. A first wave of cases has recently interpreted and applied these exceptions putting the effectiveness of state-led treaty design reform to the test. In this article, we introduce the different types of general public policy exceptions found in investment treaties and systematically analyze the case law rendered thereunder. We find that although public policy exceptions are becoming more prominent in treaty practice, in 2016 every third newly concluded treaty contained such a clause, they are largely missing in action. Respondents fail to raise them appropriately and tribunals either ignore them or adopt interpretations that lessen their impact. As a result, the numerous and complex interpretive issues raised by these exceptions remain unresolved and their impact on investment jurisprudence remains modest at best. We conclude by recommending that responding states and tribunals should engage with general public policy exceptions more thoroughly.

Keywords: Investment Law, Investment Treaties, Exceptions, Public Policy, Balancing, Reform

Suggested Citation

Alschner, Wolfgang and Hui, Kun, Missing in Action: General Public Policy Exceptions in Investment Treaties (August 22, 2018). in: Lisa Sachs, Jesse Coleman, Lise Johnson (eds.), Yearbook on International Investment Law and Policy, New York: Oxford University Press, 2018 (Forthcoming) ; Ottawa Faculty of Law Working Paper No. 2018-22. Available at SSRN: https://ssrn.com/abstract=3237053 or http://dx.doi.org/10.2139/ssrn.3237053

Wolfgang Alschner (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

Kun Hui

University of Ottawa, Faculty of Law ( email )

Ottawa
Canada

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