Mercredi 2 juin 2021: Monsieur David Khachvani
Monsieur David Khachvani soutiendra, en vue de l'obtention du grade de docteur en droit, sa thèse intitulée:
« Compensation for Regulatory Expropriation in International Investment Law »
Mercredi 2 juin 2021 - 9h.
Soutenance en ligne*
* par ZOOM : https://unige.zoom.us/j/93693737376
The topic of compensation for regulatory expropriation attracts growing attention in investor-State arbitration. The States, international organizations and interest groups are increasingly concerned with treaty claims of foreign investors, who often seek compensation for the States’ legitimate regulatory measures, such as the laws on tobacco plain packaging, nuclear energy phase-out, renewable energy reforms and, more recently, measures designed to tackle the COVID-19 pandemic. These and similar concerns boil over into what is often called a legitimacy crisis in investor-State dispute settlement.
Against this background, it is striking that international investment law has yet to broach most fundamental questions related to compensability of legitimate regulatory measures. In particular, investment treaty tribunals have yet to come up with a comprehensive approach to distinguishing a non-compensable exercise of States’ regulatory and police powers from a legitimate but compensable regulatory expropriation. They also remain divided on whether the compensation regime of the expropriation provisions should protect only property rights or also other sorts of economic interests of foreign investors. Similarly, the standard of compensation for investments that lose their value due to the State’s legitimate regulatory measures is riddled with multiple uncertainties.
The thesis addresses these fundamental questions from a unique angle that has remained underexplored in investment treaty jurisprudence and scholarship. In particular, it carries out a comparative analysis of constitutional and administrative laws of different legal systems to identify the key features of the prohibition of uncompensated expropriation as a general principle of law. It then goes on to explore the rationale of that principle in legal theory and political philosophy. Equipped with the understanding of the normative and philosophical underpinnings of the expropriation standard, the work then proceeds to propose an analytical approach to tackle the practical questions related to the compensatory protection of foreign investments and the States’ power to regulate in public interest. In doing so, it offers the analysis of the case law of investment tribunals, and applies the proposed approach to examples of governmental measures that are poised to define the regulatory landscape in the future, such as public health, climate change and environmental regulations.2 juin 2021