The Right of States to Regulate in their Public Interest and the Right of Investors to Receive Fair and Equitable Treatment: The search for a balance in treaties and cases on international investment law
PhD student: Mrs Dr Y. Levashova
Promotors: Prof I.F. Dekker, Prof T.E. Lambooy
Duration: 1/11/2011 - 31/10/2014
PhD defence: Utrecht, 5/12/2018
In the last decade, international investment law has undergone an explosive growth, which is characterised by a proliferation of Bilateral Investment Treaties (BITs) and a growing number of investment-treaty arbitrations. The effect of BITs on developing countries, which are usually capital-importing countries (Host states) can be far reaching. The objectives of Host states and investors sometimes conflict. There are cases when Host states attempts to regulate in the public interest have interfered with investments of foreign investors and subsequently were claimed to violate BITs. Resultantly, Host states sometimes face a dilemma because, on the one hand, they have to comply with the international obligations under human rights and environmental treaties, and on the other, they have to fulfil their economic obligations under BITs. Thus far, public interest norms, e.g. protection of the environment and human rights, have been avoided in BITs. Moreover, upon investment disputes, arbitrators have predominately considered the text of the relevant BIT when solving these types of conflicts, thereby neglecting other international obligations of the Host state. This has a detrimental impact on the Rule of Law in developing countries. This research intends to provide a comprehensive evaluation of a BIT regime from the perspective of public interest norms that can contribute to building a fair investment system.