THE PROTECTION OF PRIVATE INVESTORS’ RIGHTS IN RECENT INTERNATIONAL INVESTMENT AGREEMENTS

Abstract

A new set of international legal rules has been developed in the recent practice of investment law, intended to balance the promotion of foreign investments with the creation of safeguards for public policies. After a brief introduction, which addresses that trend in the light of the expansion of negotiations on mega-regional agreements as the “new” instrument of investment regulation, the second section of this article discusses the question of the convergence of the protection of private investors and the protection of States’ regulatory power in the experience of NAFTA countries and the most recent European investment policy, developed after the entry into force of the Lisbon Treaty. The third section is devoted to an analysis of the substantive provisions of the recently concluded mega-regional agreements concerning three specific elements traditionally linked to investor protection (i.e. the free and equitable treatment standard, “umbrella” clauses, and indirect expropriation) in order to examine how they contribute to setting a new paradigm, or at least a move towards a new paradigm for the protection of investors’ rights. Subsequently, investors’ obligations – still a major topic under discussion in the practice of investment law – will be examined; and finally the new dispute settlement mechanism which has been proposed by the European Union will be assessed, discussing how it could fit with a reform of the procedural aspects of investor protection to guarantee the State’s policy space.