The Right to Regulate of Developing Countries in International Investment Law

Amidst mounting geopolitical rivalry, resource competition and increasing state interventions in the economy, tensions between investment protection and state regulatory interests are also rising. This book explores how developing countries can offer investment protection and yet safeguard their right to regulate. It examines how arbitral tribunals may consider their specific contexts and how investment agreements can embed the right to regulate without undermining legal certainty.

In times of rising geopolitical tensions, resource competition and increased government interventions in the economy: How can developing countries safeguard their right to regulate and yet offer adequate investment protection? Should this right be interpreted differently in light of their level of development and specific circumstances?

This book shows that international investment law does not recognise a development-based right to regulate as such. Nonetheless, arbitral tribunals may consider contextual factors – such as economic crises, political transition, and limited regulatory capacity – when interpreting standards like fair and equitable treatment and indirect expropriation as well as the right to regulate. Against this background, the study analyses how the right to regulate can be incorporated into international investment agreements for tribunals to consider such contexts without undermining legal certainty.

Introduction

Part 1: Developing Countries, the Meaning of Development, and the Right to Regulate in International Investment Law
The »Developing« Host State in International Investment Law — The Development Dimension of International Investment Law — The Right to Regulate in International Investment Law

Part 2: A Differential Treatment of Developing Countries in International Investment Law?
The Special Legal Status of Developing Countries – a »Differential« Approach — Developmental and Differential Considerations in IIAs — Developmental Considerations in Arbitral Awards – a »Contextual« Approach

Part 3: The Level of Development as a Determinant of the Right to Regulate?
The Right to Regulate in IIAs – the Existing Taxonomy — The Right to Regulate of the Developing Host State – Attempts of a Taxonomy — Summary of the Findings and Main Theses

• By (author) Thomas Dromgool