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Vol 23 No 6 June/July 2018

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Cover of Drafting Commercial Agreements

Drafting Commercial Agreements

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Stabilization Clauses in International Investment Law: A Sustainable Development Approach


ISBN13: 9783319972312
To be Published: December 2018
Publisher: Springer-Verlag
Country of Publication: Switzerland
Format: Hardback
Price: £119.99



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.

Subjects:
International Investment Law
Contents:
Part I - Stabilization Clauses and Sustainable Development: Setting the Framework:
1. The Stabilization Clause / Regulatory Power Antinomy and Sustainable Development: An Introduction
2. Meaning, Evolution, Rationale, Sources and Typology of Stabilization Clauses
3. The Implications of Stabilization Clauses on the Host State's Regulatory Power: A Sustainable Development Perspective
Part II - The Legal Status of Stabilization Clauses under National and International Law: The Traditional and Current Practice:
4. The Legal Status of Stabilization Clauses under National Law
5. The Legal Status of Stabilization Clauses under International Law: The Traditional Debate Revisited
6. The Legal Status of Stabilization Clauses under International Law: The Current Practice
Part III - Reconciling the Antinomy between the Stabilization Clause and the Host State's Regulatory Power in the Light of Sustainable Development:
7. The Role of a Sustainable Development Approach in Reconciling the Antinomy between Stabilization Clauses and the Host State's Regulatory Power
8. Reconceptualizing Stabilization Clauses in Light of a Constructive Sustainable Development Approach
Part IV - Summary and Conclusions:
9. Summary and Conclusions.