The role of proportionality in international investment law is largely conditioned on whether proportionality is considered a general principle of law or an element of material law, applicable only when explicitly or implicitly incorporated into a given set of rules. The chapter explores proportionality in relation to the expropriation standard in light of new investment treaty formulations and with a particular reference to the context of the EU-China investment negotiations. It discusses the dual approach to proportionality, as a general principle of law and as an element of substantive law. To better understand the function of proportionality, it establishes a comparative context, detailing the case law of the WTO’s adjudicative bodies, the CJEU and the ECtHR. It then turns to proportionality analysis in investment treaty arbitration, its explicit incorporation in IIAs, it addresses some related criticisms and argues that proportionality can be a useful tool for balancing competing interests.
The chapter discusses the scope of international investment agreements (IIAs) and the most important substantive standards they grant foreign investors. The chapter commences by exploring the scope of investment treaties, with an emphasis on the notion of ‘investment’ and ‘investor’. Consequently, it turns to substantive standards of protection, such as national treatment, protection against expropriation and fair and equitable treatment. Finally, it studies the use of exceptions and exclusions in international investment treaties. The chapter focuses on seminal topics relating to the scope of IIAs and substantive investment protections, paying particular attention to new generation investment treaties, in order to identify new trends and anticipate forthcoming changes, outlining a research agenda in a forward-looking manner.