Book contents
- International Investment Law and Legal Theory
- Cambridge Studies in International and Comparative Law: 158
- International Investment Law and Legal Theory
- Copyright page
- Dedication
- Contents
- Figures
- Preface
- Table of Cases
- 1 Introduction
- 2 Customary International Law
- 3 Investment Precedents
- 4 Treaty Interpretation
- 5 Doctrinal Scholarship
- 6 The Regulatory Expropriation Conundrum
- 7 Expropriation: A New Beginning
- 8 Expropriation Reconstructed
- Bibliography
- Index
- Cambridge Studies in International and Comparative Law
6 - The Regulatory Expropriation Conundrum
Published online by Cambridge University Press: 17 April 2021
- International Investment Law and Legal Theory
- Cambridge Studies in International and Comparative Law: 158
- International Investment Law and Legal Theory
- Copyright page
- Dedication
- Contents
- Figures
- Preface
- Table of Cases
- 1 Introduction
- 2 Customary International Law
- 3 Investment Precedents
- 4 Treaty Interpretation
- 5 Doctrinal Scholarship
- 6 The Regulatory Expropriation Conundrum
- 7 Expropriation: A New Beginning
- 8 Expropriation Reconstructed
- Bibliography
- Index
- Cambridge Studies in International and Comparative Law
Summary
This chapter deconstructs the main argument of orthodox doctrinal scholarship on regulatory expropriation. It argues that the strong impetus of orthodox scholarship to solve problems leads both those favouring strong investor protection and those arguing for a wide state freedom to regulate to see the problem in virtually the same terms and to develop the same solution. The problem identified is that neither of the two extremes is sustainable; the solution is that a balance has to be struck. Yet such a view is ideological, not legal, because it cannot contemplate and must deny a priori the possibility that IIA expropriation clauses are skewed in one direction or that the law does not provide for a balanced, proportional solution. Doctrinal scholarship, however, must analyse the law as it is, not as we may wish it to be.
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- International Investment Law and Legal TheoryExpropriation and the Fragmentation of Sources, pp. 162 - 185Publisher: Cambridge University PressPrint publication year: 2021