Investment law is a rapidly moving and increasingly debated area of international law. Shifts in international economic relations, the broad nature of investment standards, the role played by arbitral tribunals and the guarantees granted by law to foreign investors are the object of many comments and disagreements. In particular, it is often feared that contractual stability commitments taking the form of stabilisation clauses are excessive and detrimental to states in terms of sovereignty. This thesis does not focus on the sovereignty debate but proposes a contextual analysis of those stabilisation clauses. Because stabilisation clauses implement FDI protection policies, it suggests that the sustainability of a stabilisation clause essentially depends on whether the FDI protection policy remains compatible with host states' future public policies and development needs. The sustainability of stabilisation clauses is thus considered at three different levels: in terms of (a) political and economic ideology, (b) policymaking and Cc) in terms of contractual commitments. The thesis finds that the current FDI framework suffers from significant ideological tensions because it defends liberal values and imposes liberal standards which tend to ignore national interests. At the same time, it suggests that the policies are not legally unsustainable: they provide broad standards of treatment, do not breach the debated 'right to development' and do not prevent host states from setting up 'valid' policies and regulatory measures as long as a due process of law is observed. Investment contracts, in turn, are often criticised for their negative impacts on states' regulatory powers, but they provide little reliable guarantees of stability to foreign investors and justify a need to rely on contract stabilisation commitments, especially since the role and interpretation of 'legitimate expectations' under the Fair and Equitable standard of treatment is changing. Current contract stabilisation methods, however, create unreasonable expectations, make FDI policies legally unbalanced and must therefore be reviewed to allow for more policy space and to create more 'legitimate' predictability expectations.
| Identifer | oai:union.ndltd.org:bl.uk/oai:ethos.bl.uk:580313 |
| Date | January 2012 |
| Creators | Martin, Antoine P. |
| Publisher | University of Surrey |
| Source Sets | Ethos UK |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
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