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30 LJIL 71 (2017)
Investment Treaties, Sustainable Development and Reasonableness Review: A Case Against Strict Proportionality Balancing

handle is hein.journals/lejint30 and id is 77 raw text is: 

LeidenJournal ofinternational Law (2017), 30, pp. 71-91
Q Foundation of the Leiden Journal of International LaW 2016  doi:io.Io17/SO92215656oo595


INTERNATIONAL LAW AND PRACTICE


Investment Treaties, Sustainable

Development and Reasonableness Review:

A   Case Against Strict Proportionality

Balancing


FEDERICO  ORTINO*




   Abstract
   The article tackles the question of how far should investment tribunals go in reviewing the
   reasonableness of host state conduct. Based on an evolutionary interpretation of the preamble
   of international investment treaties and focusing on the principle of integration as the key
   element of the concept of sustainable development, the article's main argument is that in-
   vestment tribunals should avoid a review based on proportionality stricto sensu or cost-benefit
   balancing.

   Key words
   balancing; investment treaties; proportionality; reasonableness; sustainable development


I.  INTRODUCTION

Investment  treaty law is a goldmine for academics with a compulsion for ordering
chaos. Diverging opinions with regard to, for example, the very notion of investment
for purposes of determining the scope of investment treaties and the jurisdiction of
investment tribunals, the content of the various substantive protections guaranteed
by investment  treaties (such as the fair and equitable treatment standard or the
notion of indirect expropriation), and the role of investment (arbitral) tribunals are
simply a fact of life in investment treaty law. Following such compulsion, the article
tackles one controversial question: what is the nature of an investment tribunal's
review based on the reasonableness of the host state's conduct under an investment
treaty? This is a particularly crucial question as investment tribunals are presently
engaged in reviewing a very wide range of public acts including the acts of any state
organ exercising legislative, executive, judicial or any other functions, whatever




*   King's College London [federico.ortino@kcl.ac.uk]. The author would like to thank Danai Azaria, Jansen
    Calamita, David Caron, Kate Miles, Alex Mills, Martins Paparinskis, Mona Pinchis, Lauge Poulsen, Joanne
    Scott, Taylor St-John, Lorenzo Zucca, and the participants in the Centre of Transnational Legal Studies Fall
    2014 Colloquium Series seminar for their very useful comments.

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