Regulatory Expropriation Claims in International Investment Arbitrations: A Bridge Too Far?

Subject(s):

Expropriation — Claims

This chapter analyzes how the investment legal regime accommodates exogenous environmental and sustainable development demands through the legal tools at its disposal by examining how tribunals respond to claims of regulatory expropriation. It considers U.S. and European experiences in regulatory expropriation claims in order to ascertain if there is any value in a comparative approach from which international investment law can learn useful lessons on how to deal with similar claims. It then shows how some investment tribunals have either adopted the ad hoc balancing characteristic of the United States Supreme Court's approach to regulatory takings claims, or have attempted the proportionality analysis derived from European constitutional traditions.