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International Investment Law and Comparative Public Law$
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Stephan W. Schill

Print publication date: 2010

Print ISBN-13: 9780199589104

Published to Oxford Scholarship Online: January 2011

DOI: 10.1093/acprof:oso/9780199589104.001.0001

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Public Law Concepts to Balance Investors’ Rights with State Regulatory Actions in the Public Interest—the Concept of Proportionality

Public Law Concepts to Balance Investors’ Rights with State Regulatory Actions in the Public Interest—the Concept of Proportionality

Chapter:
(p.75) 3 Public Law Concepts to Balance Investors’ Rights with State Regulatory Actions in the Public Interest—the Concept of Proportionality
Source:
International Investment Law and Comparative Public Law
Author(s):

Benedict Kingsbury (Contributor Webpage)

Stephan W. Schill

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199589104.003.0003

This chapter observes that investment treaty tribunals are increasingly confronted with resolving conflicts between investment protection and competing public policy concerns, including the protection of the environment or human rights. It suggests that arbitral tribunals could resolve such conflicts by drawing on proportionality analysis as a public law concept. After illustrating how proportionality analysis as a judicial technique has spread from its origins as a concept of German public law to many other domestic as well as international dispute settlement systems, it argues that proportionality analysis can also be applied, and in fact has been applied, as an interpretative technique in investment treaty interpretation. It particularly plays a role in the context of indirect expropriation and fair and equitable treatment, but also in applying necessity-related clauses.

Keywords:   proportionality, Germany, EU law, WTO, GATT, European Convention on Human Rights, indirect expropriation, fair and equitable treatment, necessity, balance

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