Foreign investment treaties and the sovereignty of developing host States: ants riding elephants?
Foreign investment treaties and the sovereignty of developing host States: ants riding elephants?
In an assiduous attempt to entrench the private rights of investors and promote foreign investment, arbitral tribunals have given expansive and very broad interpretations to the meaning and scope of most-favoured-nation and fair and equitable treatment clauses without taking cognisance of the public policy space of host States. It is the basic contention of this chapter that the legal regime of foreign investment only imposes obligation on sovereign host States without imposing corresponding duties on foreign investors. The chapter argues that such an approach makes the relationship between foreign investors and host States unbalanced and, as a result, has undermined the sovereignty of host States. This threatens the legitimacy of the international investment regime.
Keywords: international investment law, ISDS, fair and equitable treatment, most-favoured-nation treatment, legitimate expectation, expropriation
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