Towards a New Leadership in Global Investment Governance?
Edited by Julien Chaisse
Chapter 7: Refining the expropriation clause: what role for proportionality?
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.
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