About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

51 Int'l Law. 109 (2018)
Protection of Regulatory Autonomy and Investor Obligations: Latest Trends in Investment Treaty Design

handle is hein.journals/intlyr51 and id is 117 raw text is: Protection of Regulatory Autonomy and Investor Obligations: Latest Trends in Investment Treaty Design KLARA POLACKOVA VAN DER PLOEG1 I. Investment Treaties: A Regulatory Straightjacket? The scope of states' power to regulate in the public interest, within the normative context of an applicable investment protection treaty, has been the central issue of recent investor-state arbitration cases. This essentially conceptual issue has important practical consequences. By imposing on host states wide-ranging obligations for particular treatment of qualifying foreign investors, investment treaties inherently curtail host states' regulatory space. Many regulatory actions that would have been permissible under a state's municipal law may constitute violations of applicable investment treaties, for which the state may be held internationally responsible and liable to provide sizable financial compensation to foreign investors. The characteristic feature of cases centered around the scope of states' regulatory autonomy is the elemental tension between investment guarantees and a conflicting public interest which the host state aspires to protect. The most notable of the recent arbitral decisions are the Philip Morris tobacco packaging cases,2 in which the tobacco giant challenged, unsuccessfully, the Australian and Uruguayan measures on tobacco packaging.3 Australia and Uruguay introduced the tobacco packaging requirements to protect public health through health warnings and reduction in appeal; however, Philip Morris challenged the measures as interfering with its property and trademark rights protected by the applicable investment treaties.4 While the investment aspect of the Philip Morris saga seems dormant for the time being, the issue of regulation in the public interest remains at the forefront of the international investment law agenda and a core question of 1. The Graduate Institute of International and Development Studies. Research funding for this Article was provided by the Swiss National Science Foundation, Project No. PiGEP1- 164860. 2. Philip Morris Asia Ltd. v. Commonwealth of Australia., UNCITRAL, PCA Case No. 2012-12, Award on Jurisdiction and Admissibility (Dec. 17, 2015); Philip Morris Brands Shrl v. Oriental Republic of Uruguay, ICSID Case No. ARB/10/07, Award (July 8, 2016). 3. Id. While the tribunal in the Australian proceedings dismissed the case on jurisdiction, the tribunal in the Uruguay case rejected all of Philip Morris' claims on merits. 4. Id.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most