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The Ascent of Globalisation$
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Harry Blustein

Print publication date: 2015

Print ISBN-13: 9781784992897

Published to Manchester Scholarship Online: May 2016

DOI: 10.7228/manchester/9781784992897.001.0001

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PRINTED FROM MANCHESTER SCHOLARSHIP ONLINE (www.manchester.universitypressscholarship.com). (c) Copyright Manchester University Press, 2022. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in MSO for personal use.date: 01 July 2022

Global Fifth Amendment

Global Fifth Amendment

(p.157) 10 Global Fifth Amendment
The Ascent of Globalisation

Harry Blutstein

Manchester University Press

US legal scholar, Richard Epstein developed a radical legal doctrine of ‘regulatory takings,’ based on the Fifth Amendment of the US Constitution, which revolutionised intergovernmental and multilateral investment agreements around the world. First applied to NAFTA, it established a radical precedent that allows corporations legal standing to take governments to independent investment tribunals. As a result, private firms were able to force judgements on nation states guilt of regulatory takings, including substantial damages for lost profits. Unsuccessful attempts were made to include regulatory takings in two international treaties: the Trade Related Investment Measures and the Multilateral Agreement on Investment. They were defeated by opposition from development countries and activists. Undeterred, supporters of the principle of regulatory takings had more success including NAFTA-type clauses into bilateral and multilateral investment agreements. These have provided unprecedented protection of foreign investment.

Keywords:   Richard Epstein, Regulatory takings, NAFTA, Multilateral investment agreement, Bilateral investment agreements

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