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International Economic Law and GovernanceEssays in Honour of Mitsuo Matsushita$
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Julien Chaisse and Tsai-yu Lin

Print publication date: 2016

Print ISBN-13: 9780198778257

Published to Oxford Scholarship Online: January 2017

DOI: 10.1093/acprof:oso/9780198778257.001.0001

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Balancing Investment Protection and Other Public Policy Goals

Balancing Investment Protection and Other Public Policy Goals

Lessons from WTO Jurisprudence

(p.68) 7 Balancing Investment Protection and Other Public Policy Goals
International Economic Law and Governance

Yasuhei Taniguchi

Tomoko Ishikawa

Oxford University Press

With the dramatic growth of foreign investment laws in the past few decades, there is an increasing concern over investment arbitration, including that it has reduced the scope for state regulation. This is contrasted with the WTO Appellate Body, which has received wide support and trust as an efficient and legitimate state–state dispute settlement forum. With this background, this article examines the reasons behind the difference in these systems of law and proposes that, despite various differences between the WTO dispute settlement system and investment arbitration, there are certain contexts where WTO jurisprudence may provide helpful guidance with investment arbitration in addressing the issue of balance between investment protection and public interests. As one such ‘context’, this article focuses on the approach of the WTO Appellate Body in the application of general exception clauses and its implications on the interpretation of investment protection obligations by investment arbitration tribunals.

Keywords:   GATT Article XX, investment arbitration, public policy goals and protection of investment/trade, treaty interpretation, WTO jurisprudence

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