OECD Working Papers on International Investment

1815-1957 (online)
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Selected studies on international investment and investment policy prepared for use within the OECD. They address such issues as investment agreements, dispute settlement, fair and equitable treatment, most favored nation treatment, and corruption.

The balance between investor protection and the right to regulate in investment treaties

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David Gaukrodger1
Author Affiliations
  • 1: OECD, France

24 Feb 2017
Bibliographic information

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There is vigorous debate about reforms to address the balance between investor protection and the right to regulate in the over 3000 existing investment treaties. This paper first notes the growing trend to analyse particular treaty rules rather than treaties as a whole and the importance of comparative analysis of balancing under other regimes. It then outlines issues in four areas: (i) the types of regulation potentially at issue in investment treaty claims by covered investors; (ii) the types and levels of investor protection; (iii) the degree of impact of treaties on regulation; and (iv) the processes and institutions that may be involved in balancing interests in investor protection and the right to regulate. While the paper recognises that dispute resolution institutions have a significant impact on the balance and the right to regulate, it focuses primarily on substantive issues in light of other ongoing work on dispute settlement.
bilateral investment treaties, regulatory autonomy, right to regulate, investment treaties, policy space, investor protection
JEL Classification:
  • F02: International Economics / General / International Economic Order and Integration
  • F13: International Economics / Trade / Trade Policy ; International Trade Organizations
  • F23: International Economics / International Factor Movements and International Business / Multinational Firms ; International Business
  • F53: International Economics / International Relations, National Security, and International Political Economy / International Agreements and Observance ; International Organizations
  • F60: International Economics / Economic Impacts of Globalization / General
  • H11: Public Economics / Structure and Scope of Government / Structure, Scope, and Performance of Government
  • H40: Public Economics / Publicly Provided Goods / General
  • K23: Law and Economics / Regulation and Business Law / Regulated Industries and Administrative Law
  • K29: Law and Economics / Regulation and Business Law / Other
  • K33: Law and Economics / Other Substantive Areas of Law / International Law
  • K4: Law and Economics / Legal Procedure, the Legal System, and Illegal Behavior
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