Stabilization Clauses in International Investment Law: A Sustainable Development Approach

Description

This book analyzes the tension between the host state’s commitment to provide regulatory stability for foreign investors – which is a tool for attracting FDI and generating economic growth – and its evolving non-economic commitments towards its citizens with regard to environmental protection and social welfare. The main thesis is that the ‘stabilization clause/regulatory power antinomy,’ as it appears in many cases, contradicts the content and rationale of sustainable development, a concept that is increasingly prevalent in national and international law and which aims at the integration and balancing of economic, environmental, and social development. To reconcile this antinomy at the decision-making and dispute settlement levels, the book employs a ‘constructive sustainable development approach,’ which is based on the integration and reconciliation imperatives of the concept of sustainable development as well as on the application of principles of law such as non-discrimination, public purpose, due process, proportionality, and more generally, good governance and rule of law. It subsequently re-conceptualizes stabilization clauses in terms of their design (ex-ante) and interpretation (ex-post), yielding stability to the benefit of foreign investors, while also mitigating their negative effects on the host state’s power to regulate. Front Matter ....Pages i-l Front Matter ....Pages 1-1 The Stabilization Clause / Regulatory Power Antinomy and Sustainable Development: An Introduction (Jola Gjuzi)....Pages 3-10 Meaning, Evolution, Rationale, Sources and Typology of Stabilization Clauses (Jola Gjuzi)....Pages 11-87 The Implications of Stabilization Clauses on the Host State’s Regulatory Power: A Sustainable Development Perspective (Jola Gjuzi)....Pages 89-182 Front Matter ....Pages 183-185 The Legal Status of Stabilization Clauses Under National Law (Jola Gjuzi)....Pages 187-211 The Legal Status of Stabilization Clauses Under International Law: The Traditional Debate Revisited (Jola Gjuzi)....Pages 213-294 The Legal Status of Stabilization Clauses Under International Law: The Current Practice (Jola Gjuzi)....Pages 295-378 Front Matter ....Pages 379-381 The Role of a Sustainable Development Approach in Reconciling the Antinomy Between Stabilization Clauses and the Host State’s Regulatory Power (Jola Gjuzi)....Pages 383-449 Reconceptualizing Stabilization Clauses in Light of a Constructive Sustainable Development Approach (Jola Gjuzi)....Pages 451-493 Front Matter ....Pages 495-495 Summary and Conclusions (Jola Gjuzi)....Pages 497-521 Back Matter ....Pages 523-545