Deference and Indirect Expropriation Analysis in International Investment Law: Observations on Current Approaches and Frameworks for Future Analysis

Abstract

[T]he failure of some arbitral tribunals to recognize the public nature of investment treaty arbitration, and to allow States a sufficient margin to determine and implement various policy goals, has contributed to the legitimacy crisis in which the investment treaty system currently finds itself.2 2Anthea Roberts, ‘The Next Battleground: Standards of Review in Investment Treaty Arbitration' (2011) 16 International Council for Commercial Arbitration Congress Series 170, 173. Anthea Roberts, ‘The Next Battleground: Standards of Review in Investment Treaty Arbitration' (2011) 16 International Council for Commercial Arbitration Congress Series 170, 173. International investment law performs a significant role in defining for States party to international investment treaties the scope of regulatory freedom to enact measures affecting foreign investment. This is because many bilateral or multilateral investment treaties confer upon arbitral tribunals the capacity to deem State regulatory action inconsistent with the standards of treatment set out in the relevant treaty. The reach of international investment law is the subject of extensive scrutiny and debate. Criticisms include that investment treaties result in...