This text explores how the public purpose doctrine reconciles the often conflicting, but equally binding, obligations that states have to engage in regulatory sovereignty while honoring host-state obligations to protect foreign investment. The work examines the multiple permutations and iterations of the public purpose doctrine and concludes that this principle needs to be reconceptualized to meet the imperatives of economic globalization and of a new paradigm of sovereignty that is based on the interdependence, and not independence, of states. It contends that the historical expression of the public purpose doctrine in customary and conventional international law is fraught with fundamental flaws that, if not corrected, will give rise to disparities in the relationship between investors and states, asymmetries with respect to industrialized nations and developing states, and, ultimately, process legitimacy concerns.
- The only book written on the public purpose doctrine in customary and conventional international law
- Speaks to every direct or indirect (regulatory) expropriation by a state of a foreign investment
- Provides cross-disciplinary coverage that addresses the concerns of industrialized states, developing states, foreign direct investment protection, and the workings and legitimacy of treaty-based investment arbitration within the context of one of the most important principles of public international law: the public purpose doctrine
- Will be of interest to scholars and academicians, as well as to practitioners in the field of foreign investment protection and investor-state arbitration
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Reviews & endorsements
'The authors give us a learned volume that is rich in its reference to practice, masterfully broad in its reach to associated fields, and unusually deep in its reflection on how a complex river of judicial decisions and international and national instruments is shaping the course of what we will come to know as public purpose.' David Caron, Dean, The Dickson Poon School of Law, King's College London
'This book seeks a nuanced and novel approach to the vexed issue of the conflict between regulatory sovereignty of the state and the protection of foreign investment through the public purpose doctrine. It reworks the public policy doctrine in international law removing the identified flaws in the doctrine so that it could become a meaningful instrument for maintaining 'equipoise' between the two contending interests in international investment law. Through the doctrine, the authors seek to answer issues that arise from the contested legitimacy of investment arbitration. The insights that the work brings to public international law, investment arbitration and international investment law will enlighten the course of development of a difficult and confused area of the law for many years to come.' M. Sornarajah, C. J. Koh Professor, Faculty of Law, National University of Singapore
'[This book] is certainly one of the most valuable contributions to the much-heated and at times unnecessarily emotional debate about the right balance to be struck between the regulatory space of States and investment protection.' J. Ostransky, Transnational Dispute Management
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Product details
- Date Published: February 2015
- format: Hardback
- isbn: 9781107081741
- length: 470 pages
- dimensions: 229 x 152 x 25 mm
- weight: 0.79kg
- contains: 5 tables
- availability: Available
Table of Contents
1. Public purpose in NAFTA
2. Identifying public purpose in customary international law: select international instruments
3. Defining the profile of the public purpose doctrine in human rights conventions
4. The effect of bilateral investment treaties on the public purpose doctrine and the public purpose doctrine's distortion of symmetry in bilateral investment treaties: discerning order and structure
5. Permanent sovereignty over natural resources
6. The role of public purpose in foreign investment protection statutes: can FIPS rehabilitate the doctrine?
Appendix I. A comparison between the performance requirements articles of the Canada-Jordan BIT and the Colombia-Japan BIT
Appendix II. An empirical review of the pre-eminence of the public purpose doctrine throughout the ever-expanding universe of bilateral investment treaties
Appendix III. A spatial comparison of provisions relating to investment protection, incentives, and dispute resolution in foreign-investment promotion statutes and bilateral investment treaties.
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Authors
Pedro J. Martinez-Fraga, Bryan Cave LLP
Pedro J. Martinez-Fraga is a partner in Bryan Cave LLP's International Arbitration and Litigation Practice Group, where he is the firm's co-leader and the co-founder of the Miami office. He has represented eight countries as lead counsel, and he has served in ICSID (World Bank) proceedings. Martinez-Fraga graduated from St John's College, Annapolis (B.A., summa cum laude); Columbia University, New York (J.D.), where he was Harlan Fiske Stone Scholar; and holds a Ph.D. (international law) (cum laude) from Universidad Complutence de Madrid. He has published more than fifty articles in fifteen countries, which have been translated into five languages, and has written five books on public and private international law.
C. Ryan Reetz, Bryan Cave LLP
C. Ryan Reetz is a partner in Bryan Cave LLP's International Arbitration and Litigation Practice Group, where he is co-founder and office-managing partner of the firm's Miami office. In addition to serving as counsel and as arbitrator in a wide range of international arbitration matters, he teaches, lectures and publishes extensively on international dispute resolution topics. A member of the American Law Institute since 2005, he served as chair of the Florida Bar International Law Section from 2013 to 2014. Reetz is a graduate of Harvard College (A.B., magna cum laude) and of Boston University School of Law (J.D., summa cum laude).