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Public Interest and International Investment Law: A Critical Perspective on Three Mainstream Narratives

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Handbook of International Investment Law and Policy

Abstract

The question whether the system of international investment law (IIL) promotes or stifles public interest has been the subject of heated scholarly and policy debates. To fend off mounting critiques against IIL, several narratives have been deployed to portray the system as capable of promoting and protecting public interest. In this chapter, we identify and critically analyze three such narratives. The first two narratives are justificatory and present the IIL system as furthering public interest by enhancing development and the rule of law. Our analysis exposes the points of strains and contradictions of both narratives. The third narrative is reconciliatory, focusing attention on legal techniques for weighing competing interests, whereby the central goal of protecting foreign investors interests can be reconciled with public interest. In this context, we look at proportionality analysis and how it has been constructed by arbitration tribunals as a weighing technique and, as such, as an entry point for public interest in investment arbitration. We show that also this narrative rests on ambiguous foundations. Our brief analysis of case law shows how, in practice, the technocratic pen of arbitrators has too often erased the voice and agency of the public. By exposing the points of strain of mainstream narratives, this chapter contributes to open up new space to foreground the interest of marginalized publics.

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Notes

  1. 1.

    In this chapter, we refer to international investment law (IIL) as including both international investment arbitration and the substantive standards of protection included in international investment agreements (IIAs); the reason for such encompassing use of the term is that within IIL, investor-state arbitration became not only the norm but also a defining trait.

  2. 2.

    An enthymeme can be characterized as a form of incomplete syllogism, where one or more premises are left out of the dialectic reasoning. For an analysis of the use of enthymemes in narratives, see Feldman MS, Almquist J (2012) Analyzing the implicit in stories. In: Holstein JA, Gubrium JF (eds) Varieties of narrative analysis, pp 207–228.

  3. 3.

    See Sacerdoti G, Acconci P, Valenti M, and De Luca A (2014) General interests of host states in international investment law. Cambridge University Press, p 165. In providing a definition of public interest, Acconci juxtaposes public interest to the interests of the investors: “…public concerns … are referred to … as “non-investment interests/concerns,” I have grouped together the interests, concerns and needs of local populations, NGOs, consumers, stakeholders and public opinion in general under the term “public”.” p. 166.

  4. 4.

    Choudhury B (2008) Recapturing public power: is investment arbitration’s engagement of the public interest contributing to the democratic deficit? Vanderbilt J Transnatl Law 41:775.

  5. 5.

    Simma B (1994) From bilateralism to community interest in international law. Recueil des Cours de l’Academie de Droit International, Series 250, p 217. “…a consensus according to which respect for certain fundamental values is not to be left to the free disposition of States individually or inter se but is recognized and sanctioned by international law as a matter of concern to all States.”

  6. 6.

    Schreuer C, Kriebaum U (2011). From individual to community interest in international investment law. In: From bilateralism to community interest: essays in honour of Bruno Simma. Oxford University Press, p 1079.

  7. 7.

    Choudhury B (2013) International investment law as a global public good. Lewis Clark Law Rev 17(2):481–520.

  8. 8.

    Ibid.

  9. 9.

    See also Meshel T (2015) Human rights in investor-state arbitration: the human right to water and beyond. J Int Dispute Settl 6(2):277–307. Taillant JD, Bonnitcha J (2011) International investment law and human rights. In: Segger MC, Gehring MW, Newcombe A (eds) Sustainable development in world investment law. Kluwer Law International, pp 53–80.

  10. 10.

    Petersmann EU (2001) The transformation of the world trading system through the 1994 agreement establishing the World Trade Organization. Eur J Int Law 6:161. See also Petersmann EU (2003) Theories of justice, human rights and the constitution of international markets. Loyola Los Angeles Law Rev 37(2):407.

  11. 11.

    Alston P (2002) Resisting the merger and acquisition of human rights by trade law: a reply to Petersmann. Eur J Int Law 13(4):815–844.

  12. 12.

    Gervais DJ (2018) Investor-state dispute settlement: human rights and regulatory lessons from Lily v Canada. UC Irvine Law Rev 8(3):492–493.

  13. 13.

    Ratner S (2017) International investment law through the lens of global justice. J Int Econ Law 20:747–775. While the author remains sceptical of the more systematic critique of IIL, “[t]hose seeing IIL as morally deficient for not doing more to address gross inequities in wealth distribution have, it seems, a responsibility to demonstrate that proposed reforms to IIL would advance that goal compared to alternatives. Failure to do so is to act with what Eric Posner and David Weisbach have called policy ‘blinders’ in the climate change context. Rectifying global poverty is about consequences, not just motivations.” p 761, internal citation omitted.

  14. 14.

    Mercurio B (2015) Safeguarding public welfare? Intellectual property rights, health, and the evolution of treaty drafting in international investment agreements. J Int Dispute Settl 6(2):252–276.

  15. 15.

    Ranjan P, Anand P (2018) How “healthy” are the investment treaties of South Asian countries: an empirical study of public health provisions in South Asian countries’ BITs and FTA investment chapters. ICSID Rev Foreign Invest Law J 33(2):406–432.

  16. 16.

    The term “fraudolent system” refers to Sornarajah M (2016) International investment law as development law: the obsolescence of a fraudulent system. In: European yearbook of international economic law. Springer International Publishing, pp 209–231.

  17. 17.

    Echandi R (2016) Be careful with what you wish: saving developing countries from development and the risk of overlooking the importance of a multilateral rule-based system on investment in the twenty-first century. In: Bungenberg M et al (eds) European yearbook of international economic law. Springer International Publishing, pp 233–271.

  18. 18.

    Schill S, Djanic V (2018) Wherefore art thou? Toward a public interest-based justification of international investment law. ICSID Rev Foreign Invest Law J 33(1):29, p 29; emphasis added.

  19. 19.

    Schill, Djanic see note 18, p 36.

  20. 20.

    Schreuer, Kriebaum see note 6, p 1095. A similar conclusion has also been reached by Bernardini P (2017) Reforming investor–state dispute settlement: the need to balance both parties’ interests. ICSID Rev Foreign Invest Law J 32(1):38–57.

  21. 21.

    Schill, Djanic see note 18, p 43.

  22. 22.

    Schill, Djanic see note 18, p 44.

  23. 23.

    St John T (2018) The rise of investor-state arbitration: politics, law, and unintended consequences. Oxford University Press, p 4.

  24. 24.

    Sornarajah M (2010) The international law on foreign investment. Cambridge University Press, p 186.

  25. 25.

    Poulsen LS (2014) Bounded rationality and the diffusion of modern investment treaties. Int Stud Q 58(1):1–14.

  26. 26.

    See letter of 28 September 2017 from the Minister for Foreign Trade and Development Cooperation to the President of the House of Representatives on the Annual Report on Policy Coherence for Development (PCD).

  27. 27.

    For an overview of awards referring to development and prosperity of the host country, see Radi Y (2015) International investment law and development: a history of two concepts. In: Schill SW, Tams CJ, Hofmann R (eds) International investment law and development: bridging the gap. Edward Elgar Publishing, Cheltenham, p 69.

  28. 28.

    Franck SD (2006) Foreign direct investment, investment treaty arbitration, and the rule of law. McGeorge Glob Bus Dev Law J 19(2):338.

  29. 29.

    Radi see note 27. One reason why Investment Treaties are considered to promote economic development is that they attract inward FDIs in the first place.

  30. 30.

    Radi see note 27.

  31. 31.

    Bellak C (2015) Economic impact of investment agreements. Vienna University of Economics and Business, Department of Economics Working Paper No. 200. http://epub.wu.ac.at/4625/1/wp200.pdf

  32. 32.

    This finding is confirmed by a 2020 study where it is concluded that when publication bias is factored in the analysis, “the genuine effect of BITs on FDI drops to below 1%.” Reiter L, Bellak C (2020) Effects of BITs on FDI: the role of publication bias. In: Chaisse J, Choukroune L, Jusoh S (eds) Handbook of international investment law and policy. Springer, p. 25.

  33. 33.

    Pohl J (2018) Societal benefits and costs of international investment agreements. OECD working papers on international investment 2018(1):19.

  34. 34.

    Bonnitcha J, Poulsen L, and Waibel M (2017) The political economy of the investment treaty regime. Oxford University Press.

  35. 35.

    The reason to focus on sustainable development is that there is an emerging consensus on the importance of sustainable development at the international level, e.g., the UN Agenda 2030 and the agreed SDGs; likewise governments and negotiators of trade and investment agreements increasingly refer to sustainable development; see the Dutch government, note 26. Implicit in our analysis is an agnostic approach to growth, for reasons well articulated by Kate Raworth, Raworth K, (2017) Doughnut economics, seven ways to think like a twenty-first-century economist, Penguin.

  36. 36.

    Jorgenson AK, Dick C, Mahutga MC (2007) Foreign investment dependence and the environment: an ecostructural approach. Soc Probl 54(3):371. See also Jorgenson AK (2016) The sociology of ecologically unequal exchange, foreign investment dependence, and environmental load displacement: summary of the literature and implications for sustainability. J Polit Ecol 23(1):328.

  37. 37.

    Jorgenson see note 36.

  38. 38.

    Viñuales JE (2016) Law and the Anthropocene. Available via: C-EENRG working papers, 2016–4. https://www.ceenrg.landecon.cam.ac.uk/working-paper-files/wp08. p 30. For a more recent discussion Schlaudt O (2020) The market as a “rigged game”? Economic value and the challenge of ecologically unequal exchange. Available via: Verfassungsblog. https://verfassungsblog.de/the-market-as-a-ʻrigged-gameʼ-economic-value-and-the-challenge-of-ecologically-unequal-exchange/

  39. 39.

    Long MA, Stretesky PB, Lynch MJ (2017) Foreign direct investment, ecological withdrawals, and natural-resource-dependent economies. Soc Nat Resour 30(10):1261.

  40. 40.

    This theory maintains that “…the accumulated stocks of foreign investment generally make a less developed country more vulnerable to different transnational and global political-economic conditions, which often leads to a variety of negative consequences for domestic populations, including suppressed economic development (…), increased domestic income inequality (…), and problems with food security and human health (…).” Jorgenson AK (2010) World-economic integration, supply depots, and environmental degradation: a study of ecologically unequal exchange, foreign investment dependence, and deforestation in less developed countries. Crit Sociol 36(3):459.

  41. 41.

    Arsel M, Pellegrini L, Mena CF (2019) Maria’s paradox: oil extraction and the misery of missing development alternatives in the Ecuadorian Amazon. In: Kanbur R, Sandbrook R, and Shaffer P (eds) Immiserizing growth: when growth fails the poor, p 221.

  42. 42.

    Shaffer P (2016) Immiserizing growth: a research agenda. Q-squared working paper no. 66.

  43. 43.

    Bhagwati J (1958) Immiserizing growth: a geometrical note. Rev Econ Stud 25(3):201. Samuelson P (2004) Where Ricardo and Mill rebut and confirm arguments of mainstream economists supporting globalization. J Econ Perspect 18(3):135.

  44. 44.

    Chenery H, Ahluwalia MS, Bell CLG et al. (1974) Redistribution with growth. Oxford University Press. Yet, the Investment Policy Global Lead of the Investment Climate Unit of the Trade and Competitiveness Global Practice of the WB Group insists on the fact that the number of people in the world living on extreme poverty is precisely the result of increasing flows in trade and investment, all the while admitting that the gap between the richest and poorest countries in the world is starkly growing. The answer, according to Echandi, is the ability of local companies to integrate into a global production value chain (via more foreign investment), a mantra that the last COVID19 crisis has proven dramatically fallacious. Echandi see note 21, p 257.

  45. 45.

    Heydt M (2016) New report on unrecorded capital flight finds developing countries are net-creditors to the rest of the world. Available via: Global Financial Integrity. https://gfintegrity.org/press-release/new-report-on-unrecorded-capital-flight-finds-developing-countries-are-net-creditors-to-the-rest-of-the-world/

  46. 46.

    Hickel J (2017) The development delusion: foreign aid and inequality. Am Aff J 1(3):160–173.

  47. 47.

    Ibid.

  48. 48.

    Van Harten G (2010) Investment treaty arbitration, procedural fairness, and the rule of law. In: Schill SW (ed) International investment law and comparative public law. Oxford University Press, p 627. The author refers, for example, to the work of Charles Brower, Jan Paulsson, and Thomas Walde, and Ian Laird, Stephan Schill, and Todd Weiler. See Schill SW (2015) International investment law and the rule of law. In: Lowell J, Thomas JC, van Zyl Smit J (eds) Rule of law symposium 2014: the importance of the rule of law in promoting development. Academy Publishing, Singapore, pp 81–102. Chase PH (2015) TTIP, investor–state dispute settlement and the rule of law. Eur View 14:217–229. Available via: https://link.springer.com/content/pdf/10.1007%2Fs12290-015-0377-z.pdf

  49. 49.

    For an overview of early studies on this, see Franck SD (2006) Foreign direct investment, investment treaty arbitration, and the rule of law. Pac McGeorge Glob Bus Dev Law J 19(2):365–369 (particularly section B).

  50. 50.

    Ginsburg T (2005) International substitutes for domestic institutions: bilateral investment treaties and governance. Int Rev Law Econ 25(1):107. Guthrie BK (2013) Beyond investment protection: an examination of the potential influence of investment treaties on domestic rule of law. NYU J Int Law Polit 45:1151 (hereafter Guthrie, “Beyond Investment Protection”). Schultz T, Dupont C (2015) Investment arbitration: promoting the rule of law or overempowering investors? A quantitative empirical study. Eur J Int Law 25(4):1149–1150. For an overview of this literature, see Arcuri A (2017) The great asymmetry and the rule of law in international investment arbitration. In: Sachs L, Johnson L, and Coleman J (eds) Yearbook on international investment law and policy. Oxford University Press, pp 394–413.

  51. 51.

    Sattorova M (2018) The impact of investment treaty law on host states: enabling good governance? Hart Publishing (hereafter Sattorova). See also the recent study by Bonnitcha J (2019) The impact of investment treaties on domestic governance in Myanmar. Available via SSRN: https://ssrn.com/abstract=3644056

  52. 52.

    Schill SW see note 48.

  53. 53.

    Van Harten see note 48. See also Van Harten G (2012) Arbitrator behaviour in asymmetrical adjudication: an empirical study of investment treaty arbitration. Osgoode Hall Law J 50(1):221.

  54. 54.

    See UNICTRAL (2014) Rules on transparency in treaty-based investor-state arbitration. Available via http://www.uncitral.org/pdf/english/texts/arbitration/rules-on-transparency/Rules-on-Transparency-E.pdf. (hereafter UNICTRAL, Rules on Transparency). For a review of these reforms, see Johnson L, Sachs L, and Coleman J (2014) International investment agreements, 2014: a review of trends and new approaches. In: Bjorklund AK (ed) Yearbook on international investment law & policy, p 25.

  55. 55.

    Kelsey J, Schneiderman D, and Van Harten G (2019) Phase 2 of the UNCITRAL ISDS review: why “other matters” really matter. Osgoode Legal Studies Research Paper. Available via SSRN: https://ssrn.com/abstract=3329332

  56. 56.

    Another critique raised against CETA ICS is that the guarantees of independence and impartiality vis-à-vis the powers of the Joint Committee are far less than those normally demanded from the national judiciary. In this context, Ciampi has examined the standards applied by the ECJ in its Judgment of 5 November 2019, Commission v Poland (Case C-192/18) and compared it with the scrutiny of the same court of ICS. She finds that “the thorough assessment of the guarantees of independence and impartiality of national judiciaries” contrasts with “the altogether summary character of the Court’s reasoning concerning the same guarantees when applied to the powers of the Joint Committee vis-à-vis the ICS.” See Ciampi A (2019) EU’s international treaties, the new investment court system (ICS), and human rights. Osservatorio sulle fonti 3.

  57. 57.

    Schneiderman D (2008) Constitutionalizing economic globalization. Cambridge University Press.

  58. 58.

    Ibid. pp 206–218. An example of a reactionary reading of the rule is Carl Schmitt’s reading of the Weimar constitution.

  59. 59.

    Ibid. p 218.

  60. 60.

    Mattei U, Neder L (2008) Plunder: when the rule of law is illegal. Wiley-Blackwell.

  61. 61.

    Krygier M (2008) The rule of law: legality, teleology, and sociology. In: Palombella G, Walker N (eds) Relocating the Rule of law. Hart Publishing, p 11.

  62. 62.

    Scheppele KL (2019) On being the subject of the rule of law. Hague J Rule Law 11:465–471.

  63. 63.

    Amnesty International (2017) In the dock shell’s complicity in the arbitrary execution of the Ogoni Nine. AFR 44/6604/2017.

  64. 64.

    Ibid. p 914. See also Hansen WL, Mitchell NJ (2000) Disaggregating and explaining corporate political activity: domestic and foreign corporations in national politics. Am Polit Sci Rev 94(4):891–903.

  65. 65.

    Wolin SS (2010) Democracy incorporated: managed democracy and the specter of inverted totalitarianism. Princeton University Press, p 194. See also Drutman L (2015) How corporate lobbyists conquered American democracy. The Atlantic. Available via: https://www.theatlantic.com/business/archive/2015/04/how-corporate-lobbyists-conquered-american-democracy/390822/. Strauss S (2012) Actually, corporations that lobby and make campaign contributions get special benefits. The Huffington Post. Available via: http://www.huffingtonpost.com/steven-strauss/actually-corporations-tha_b_1144789.html

  66. 66.

    Arcuri see note 50.

  67. 67.

    Pistor K (2019) The code of capital: how the law creates wealth and inequality. Princeton University Press, p 11. See also Scheuerman WE (1999) Economic globalization and the rule of law. Constell Int J Crit Democr Theory 6:3–25.

  68. 68.

    “Global administrative law can be understood as comprising the legal rules, principles, and institutional norms applicable to processes of ‘administration’ undertaken in ways that implicate more than purely intra-State structures of legal and political authority. (..) in what might be thought of as a global administrative space, involving blurring of national and international, and public and private, dimensions.” Kingsbury B, Donaldson M (2011) Global administrative law. Max Planck encyclopedia of public international law. Available at https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e948

  69. 69.

    Eminently among others Schill SW, Kingsbury B (2010) Public law concepts to balance investors’ rights with state regulatory actions in public interest – the concept of proportionality. In: Schill SW (ed) International investment law and comparative public law. Oxford University Press. Kulick A (2012) Global public interest in international investment law. Cambridge University Press.

  70. 70.

    Schill, Kingsbury, pp 85–86.

  71. 71.

    Kulick see note 69, p 169; Sweet AS, Della Cananea G (2014) Proportionality, general principles of law, and investor-state arbitration: a response to José Alvarez. NYU J Int Law Polit 46(3):911–954.

  72. 72.

    Schill, Djanic supra note 18, p 46.

  73. 73.

    Kingsbury B, Schill SW (2009) Investor-state arbitration as governance: fair and equitable treatment, proportionality, and the emerging global administrative law. NYU School of Law, IILJ working paper 2009/6, p 23.

  74. 74.

    Schill, Kingsbury see note 69, p 104.

  75. 75.

    For a more comprehensive articulation, see Vadi V (2015) Analogies in international investment law and arbitration. Cambridge University Press, p 196.

  76. 76.

    Ibid. p 204.

  77. 77.

    See Alvarez JE (2016) Is investor–state arbitration “public”? J Int Dispute Settl 7(30):552.

  78. 78.

    Ibid. Pirker B (2013) Proportionality analysis and models of judicial review. Europa Law Publishing. Cohen-Eliya M, Porat I (2011) Proportionality and the culture of justification. Am J Comp Law 59(2):463–490.

  79. 79.

    Alvarez explains how paradoxically the absence in the text of a specific set of exception or the definition of the host state’s right to regulate might offer states a broader space of discretion when regulating in public interest, see Alvarez supra note 77, p 562.

  80. 80.

    Ibid. p 565.

  81. 81.

    Koskenniemi M (2007) The fate of public international law: between technique and politics. Mod Law Rev 70(1):1–30.

  82. 82.

    See Saluka v. the Czech Republic, UNCITRAL, Partial Award (17 March 2006), para 263: “international law has yet to identify in a comprehensive and definitive fashion precisely what regulations are considered ‘permissible’ and ‘commonly accepted as falling within the police or regulatory power of States and, thus, noncompensable.”

  83. 83.

    See Técnicas Medioambientales Tecmed, S.A. v. The United Mexican States, ICSID Case No. ARB (AF)/00/2, para 127–128; Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Award (24 July 2008), para 498–500; Azurix Corp. v. The Argentine Republic, ICSID Case No. ARB/01/12, Award (14 July 2006), para 378. On this aspect of politicization, see Cotula (2017) Democracy and international investment law. Leiden J Int law 30(2):365–366. Yet, it is worth noting that other Tribunals have considered this to be perfectly legitimate, see AES Summit Generation Limited and AES-Tisza Erömü Kft v. The Republic of Hungary, ICSID Case No ARB/07/22 – Award (23 September 2010), paras. 10.3.22–10.3.24, 10.3.34.

  84. 84.

    Vadi see note 75, p 205. Koskenniemi M (2010) What use for sovereignty today? Asian J Int Law 1(01):61–70.

  85. 85.

    Ibid.

  86. 86.

    Alvarez see note 77. Vadi see note 75, p 190.

  87. 87.

    Vadi see note 75, p 206.

  88. 88.

    Koskeniemmi see note 84.

  89. 89.

    Pistor see note 67.

  90. 90.

    See among others De Brabandere E (2020) The role of proportionality in international investment law and arbitration: a system-specific perspective. Nord J Int Law 89 (3–4):488; Schill, Kingsbury see note 65; Vadi see note 75. The inconsistencies highlighted by the Vadi also extend to the application of the proportionality to the (reversal of) burden of proof, costs and damages awarded, p 198.

  91. 91.

    Total S.A. v. Argentine Republic, ICSID Case No ARB/04/1, Decision on Liability (27 December 2010), para 328.

  92. 92.

    Tecnicas Medioambientales Tecmed S.A. v. United Mexican States, ICSID Case No. ARB(AF)/00/2 – Award (29 May 2003), (hereafter Tecmed), para 122.

  93. 93.

    Most famously in S.D. Myers, Inc. v. Government of Canada, NAFTA Chapter 11, Partial Award (13 November 2000), para. 221.

  94. 94.

    Occidental Petroleum Corporation and Occidental Exploration and Production Company v. The Republic of Ecuador, ICSID Case No ARB/06/11 – Award (5 October2012), paras 404–405.

  95. 95.

    Autopista Concesionada de Venezuela, C.A. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/00/5, Award (23 September 2008), para 338.

  96. 96.

    Ibid.

  97. 97.

    Tecmed, see note 92, para 119.

  98. 98.

    In para 99 of the Award, the tribunal recalls the grounds for nonrenewal as following: “(i) the Landfill was only authorized to receive waste from agrochemicals or pesticides or containers and materials contaminated with such elements; (ii) PROFEPA’s delegates in Sonora had informed, in the official communication dated November 11, 1998, that the waste confined far exceeded the landfill limits established for one of the Landfill’s active cells, cell No. 2; (iii) the Landfill temporarily stored hazardous waste destined for a place outside the Landfill, acting as a «transfer center», an activity for which the Landfill did not have the required authorization; Cytrar was requested on October 16, 1997 to file reports in connection with this activity, but to date the relevant authorization had not been issued; and (iv) liquid and biological-infectious waste was received at the Landfill, an activity that was prohibited and that amounted to a breach of the obligation to notify in advance any change or modification in the scope of the Permit, and to unauthorized storage at the Landfill of liquid and biological-infectious waste.”

  99. 99.

    Tecmed, see note 92, 128–129.

  100. 100.

    See Ortino F (2019) The origin and evolution of investment treaty standards: stability, value, and reasonableness. Oxford University Press, and Schill, Kingsbury supra note 69.

  101. 101.

    Schill, Kingsbury see note 69, pp. 91–93. Schill SW (2006) Revisiting a landmark: indirect expropriation and fair and equitable treatment in the ICSID Case Tecmed. Transnatl Dispute Manage 2:15. For a critical analysis of Tecmed, see Schneiderman D (2010) Investing in democracy: political process and international investment law. Univ Tor Law J 60(4):909.

  102. 102.

    Ibid. p 93.

  103. 103.

    The tribunal in Tecmed acknowledged several other legal challenges but omits to cite this arbitral award. See Tecmed, note 92, para 108.

  104. 104.

    See note 5 p 1096. For the exact understanding of the authors of “community interests,” see above section “International Investment Law and the Public Interest: A Bird’s Eye on a Burgeoning Literature.”

  105. 105.

    Arcuri see note 50. Cotula L (2017) Land, property, and sovereignty in international law. Cardozo J Int Comp Law 25(2):219–286. Perrone N (2016) The international investment regime and local populations: Are the weakest voices unheard? Transnatl Legal Theory 7(3):383–405.

  106. 106.

    Ibid. Perrone, p. 388.

  107. 107.

    see Pellegrini L et al (2020) International investment agreements, human rights, and environmental justice: the Texaco/Chevron case from the Ecuadorian Amazon. J Int Econ Law 23(2):1–14.

  108. 108.

    Chevron Corporation and Texaco Petroleum Corporation v. Ecuador, PCA Case No 2009-23 First Partial Award on Track I (17 September 2013), among other paras 107–108, 112(3).

  109. 109.

    See Henckels C (2015) Proportionality and deference in investor–state arbitration. Cambridge University Press. See in particular the case law cited herein on the use of “reasonableness” in the context of FET, p 207.

  110. 110.

    Blusun S.A., Jean-Pierre Lecorcier and Michael Stein v. Italian Republic, ICSID Case No ARB/14/3 – Final Award (27 December 2016), paras 317–318, 319(5).

  111. 111.

    Philip Morris Brands Sàrl, Philip Morris Products S.A., and Abal Hermanos S.A. v. Oriental Republic of Uruguay, ICSID Case No ARB/10/7 – Award (8 July 2016), para 399.

  112. 112.

    Electralabel S.A. v. Republic of Hungary, ICSID Case No ARB/07/19 – Award (25 November 2015).

  113. 113.

    Ibid. para 179.

  114. 114.

    Ibid. para 180.

  115. 115.

    Continental Casualty Company v. The Argentine Republic, ICSID Case No. ARB/03/9 – Award (5 September 2008), para 227; Glamis Gold, Ltd. v. The United States of America, UNCITRAL – Award (8 June 2009), para 181.

  116. 116.

    De Brabandere see note 85.

  117. 117.

    Continental Casualty, see note 115 paras 189–230. Note, however, that here the Tribunal relied both on Art. 25 ILC Articles and Art. XX GATT, relying on different criteria of “necessity” employed for different purposes. While in the case of Art. 25 ILC Articles, there is still a violation, whose wrongfulness is precluded because of the state of necessity a state is confronted with, in the case of the regular exercise of host states’ police powers (or under Art. XX GATT for the record), there would be no violation per se if the measure is proportional, reasonable, or necessary, depending on whatever test an investment tribunal decides to employ. On the erratic interpretation of “necessity” on the part of investment tribunals, see Ranjan P (2020). “Necessary” in nonprecluded measures provisions in bilateral investment treaties: the Indian contribution. Neth Int Law Rev.

  118. 118.

    Schneiderman see note 57

  119. 119.

    Davitti D (2020) Proportionality and human rights protection in international investment arbitration: What is left hanging in the balance? Nord J Int Law 89(3–4):353.

  120. 120.

    On civilization and international law, see Tzouvala, N. (2020). Capitalism As Civilisation: A History of International Law (Cambridge Studies in International and Comparative Law). Cambridge: Cambridge University Press.

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Authors and Affiliations

  1. Erasmus School of Law, Erasmus Initiative Dynamics of Inclusive Prosperity, Erasmus University, Rotterdam, The Netherlands

    Alessandra Arcuri

  2. Erasmus School of Law, Erasmus University, Rotterdam, The Netherlands

    Federica Violi

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  1. Alessandra Arcuri
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  2. Federica Violi
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Correspondence to Alessandra Arcuri .

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Editors and Affiliations

  1. School of Law, City University of Hong Kong, Kowloon, Hong Kong

    Julien Chaisse

  2. School of Business and Law, University of Portsmouth, Portsmouth, UK

    Leïla Choukroune

  3. Institute of Malaysia and International Studies, National University of Malaysia, Bangi, Selangor, Malaysia

    Sufian Jusoh

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Arcuri, A., Violi, F. (2021). Public Interest and International Investment Law: A Critical Perspective on Three Mainstream Narratives. In: Chaisse, J., Choukroune, L., Jusoh, S. (eds) Handbook of International Investment Law and Policy. Springer, Singapore. https://doi.org/10.1007/978-981-13-5744-2_105-1

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  • DOI: https://doi.org/10.1007/978-981-13-5744-2_105-1

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  • Print ISBN: 978-981-13-5744-2

  • Online ISBN: 978-981-13-5744-2

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