Public Law Concepts to Balance Investors' Rights with State Regulatory Actions in the Public Interest—The Concept of Proportionality
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Description
This chapter observes that investment treaty tribunals are increasingly confronted with resolving conflicts between investment protection and competing public policy concerns, including the protection of the environment or human rights. It suggests that arbitral tribunals could resolve such conflicts by drawing on proportionality analysis as a public law concept. After illustrating how proportionality analysis as a judicial technique has spread from its origins as a concept of German public law to many other domestic as well as international dispute settlement systems, it argues that proportionality analysis can also be applied, and in fact has been applied, as an interpretative technique in investment treaty interpretation. It particularly plays a role in the context of indirect expropriation and fair and equitable treatment, but also in applying necessity-related clauses.
Source Publication
International Investment Law and Comparative Public Law
Source Editors/Authors
Stephan W. Schill
Publication Date
2010
Edition
1
Recommended Citation
Kingsbury, Benedict and Schill, Stephan W., "Public Law Concepts to Balance Investors' Rights with State Regulatory Actions in the Public Interest—The Concept of Proportionality" (2010). Faculty Chapters. 985.
https://gretchen.law.nyu.edu/fac-chapt/985
