On Balancing Foreign Investment Interests with Public Interests in Recent Arbitration Case Law in the Public Utilities Sector

Abstract

Abstract This article addresses the relationship between the protection of foreign investment and the protection of public interests of host States, with special regard to the public utilities sector when privately operated by foreign investors. It primarily focuses on an assessment of the scope of the concept of public interest particularly in the light of the interpretative developments concerning national security and general well-being that may be affected by foreign investment. The article highlights the trend gradually emerging from the recent international investment arbitration case law towards the harmonization between foreign investment interests and local public interests. It considers the policy rationale behind such a trend, as well as the legal reasoning and principles, with special regard to due diligence and proportionality, which may possibly enhance it.