Investment Treaty Law and the Fear for Sovereignty: Transnational Challenges and Solutions
33 Pages Posted: 3 Sep 2015
Date Written: September 2015
This article addresses the vagueness, and the interpretative challenges associated with, international investment agreements (IIAs) and develops a new normative framework for interpreting these treaties. It focuses on the historical embedding of investment protection as a means of facilitating economic development as well as upon its synthetic public law nature. The analysis shows that a teleological approach to interpretation imposes boundaries on the meaning of substantive IIA provisions. The article then elaborates how the transnational dimension of IIAs provides a benchmark, which is the level of protection offered to economic actors against interference by the state in countries with the highest rule of law standards. The article then shows how the resulting challenges of comparative public law could be addressed through the methodology of re‐ and pre‐statement of transnational uniform ‘principles’: sophisticated and detailed rules striking the proper balance between private economic interests and the public regulatory interest, so as to provide more legal certainty for both investors and host states.
Keywords: investment agreements, international (IIAs), bilateral investment treaties (BITs), sovereignty, foreign investors, interpretation (teleological), object and purpose, economic development, ICSID, no greater rights, comparative law, UNIDROIT Principles
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