The Right to Regulate (Cooperatively)

The growing number of new technologies in food production— such as nanotechnology, genetic modification, animal cloning, and irradiation—are garnering different regulatory responses around the world. Based on their threshold for tolerating risk, countries are asserting their national right to regulate at home using labeling, quarantine, and outright bans on foods. But domestic regulation has its limits in a free trade environment. Countries that are not mindful of treaty obligations could face legal liability, as seen in the recent litigation between Uruguay and Philip Morris International. In short, traditional models of international regulatory cooperation (IRC) are failing to provide countries with sufficient regulatory latitude within a free trade framework. New Mega-Regional agreements provide a renewed momentum to advance cooperation. In 2012, President Obama issued an executive order to prompt federal agencies to engage in IRC and championed two important IRC initiatives, the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership. Obscured by the criticism of the TPP (including by both major parties in the 2016 U.S. Presidential election) is its development of a novel framework that promises to integrate domestic regulatory oversight and free trade goals. As this Article explains, the TPP is (1) an exemplar of a Mega-Regional trade framework, (2) a new promising mechanism for IRC, and (3) a way to achieve higher food safety outcomes. In so doing, it underscores how the TPP enhances regulatory cooperation with a menu of new treaty offerings that nudge countries to regulate in ways unrecognized in the IRC literature. Given the rapid pace of new food technologies, the inability to resolve international conflicts with traditional means, and impending trade disputes, the model of IRC developed in this article provides an effective solution to a growing challenge in the international trade regime

The Right to Regulate in Investor- State Arbitration: Slicing and Dicing Regulatory Carve-Outs

This Article examines the “right to regulate” as the power of a sovereign state to adopt and maintain government measures for public welfare objectives. It explores how claims by foreign investors in investor–state dispute settlement (ISDS) may interfere with the state’s ability to regulate, and how the state can protect its right in international investment agreements. The Article first explains the structure of modern international investment law and dispute resolution. It next turns to the right to regulate and explores why regulatory disputes represent a major challenge for ISDS. It continues by analyzing how exceptions, exclusions, and other safeguard provisions can be used in investment treaties to protect the right to regulate. It then critically examines the tobacco carve-out and other safeguard provisions of the Trans-Pacific Partnership (TPP) Agreement as to their ability to protect the right to regulate. Finally, the Article explores alternative solutions to the challenges of ISDS. It concludes by arguing that regulatory disputes are best resolved through a hybrid system of dispute resolution that is amenable to both private interests and public policy considerations

Sovereignty or State Responsibility? Expropriation and the Right to Regulate in International Law on Foreign Investment

A state is entitled to be bound by investment agreements, including expropriating alien property on its territory. In international law, both represent the state’s sovereign principle within the boundaries of territorial integrity. Expropriation and the right to regulate are usually included in investment agreements as part of the substantive rules. This study uses a normative juridical approach. This approach is carried out by examining the library materials, which are secondary data; especially the principles and norms of law. While the aim of this research is to examine the legal aspects of several key concepts within the international investment law regime—the right to regulate and expropriation, both in terms of its regulation and implementation, in order to find best practices. Expropriation and the right to regulate are essentially like two sides of the same coin. This is because lawful expropriation implies state obligations (compensation), whereas unlawful expropriation implies state responsibilities (restitution or reparations). Meanwhile, the right to regulate (police powers), which is based on the concept of state sovereignty, does not. Lawful expropriation is defined as the state measures carried out with the due process of law, in a non-discriminatory manner, for the purpose of the public interest and is accompanied by the payment of compensation. In terms of expropriation, the right to regulate can be regarded as a form of lawful expropriation that does not necessitate compensation. Keywords: international investment law, expropriation, the right to regulat

Beyond Balancing: International Law Restraints on the Reach of National Laws

Assertion by states of a right to regulate conduct beyond their borders has been a source of frequent controversy and serious international conflicts for more than half a century. Economic, political and technological developments have forced jurisdictional analysis out of the neat confines of the territoriality principle, and states have asserted the right to regulate foreign conduct on the basis of the effects of such conduct within their borders

Global and European Constraints Upon National Right to Regulate: The Services Sector

This volume brings together research aimed at shedding light on a general problem, by focusing specifically on the services sector. In the WTO system, the services sector is regulated by the General Agreement on Trade in Services (GATS); in the European system, it is regulated by a broad and complex body of rules, combining judge-made principles with those embodied in the secondary legislation, which codifies and applies these principles to different regulated sectors. The general problem at the core of this study stems from the difficulty in striking a balance between two important needs. One the one hand, there is the need to recognise national authorities' right to autonomously regulate and govern in their own territory. On the other hand, there is the need to limit this power of autonomous regulation, mainly to protect the right of foreign economic operators to access the national market and function in conditions of equality with respect to all other operators. This problem is addressed from the particular perspective of administrative law. The premise underlying the various contributions is that supranational (global and European) law constrains domestic regulation (and domestic administrations) largely through techniques and procedures drawn from administrative law. Sovereignty-limiting procedures developed by national legal systems in order to protect citizens have been readapted by supranational public powers to protect the rights of foreign economic operators and to realise the goal of market integration. This administrative law perspective also gives shape to the structure of this volume, which is divided into three thematic areas. Each area corresponds to a category of constraints imposed by supranational administrative law upon States' right to regulate.Giulio Vesperini and Stefano Battini editor

KRISIS DAN REFORMASI: EKSPROPRIASI DALAM PERJANJIAN INVESTASI BILATERAL DI NEGARA DUNIA KETIGA

Since its inception, expropriation has always been controversial. In the present time, amidst the crisis and reform of bilateral investment treaties (BIT), expropriation has become increasingly complex in theory and practice. Theoretically, for instance, there is no clear boundary between expropriation that requires compensation, and the right to regulate similar to expropriation but does not require compensation. This situation becomes more complicated due to the problem of inconsistency and incoherence of arbitral awards. Therefore, it is important to understand how the concept of expropriation is understood by experts and interpreted by the arbitration tribunal; while also comparing how the global south use that concept within their BITs (in this case, India, Brazil, South Africa) to find best-practices. The method used in this research is juridical-normative and comparative. Amidst the BIT’s crisis particularly regarding expropriation, the global south has made various attempts to reform its BIT model. Exceptions forexpropriation are included within the right to regulate. Expropriation and the right to regulate indeed have similar legal requirements (i.e.: pursuance of a public interest, non-discriminatory manner, due process of law) yet different legal effect regardingthe payment of compensation as another condition for expropriation vis-à-vis the absence of compensation inthe right to regulate. In general, taking into account the respective adjustments, the global south is relatively balancing the investment interest vis-a-vis public interest by modernizing the concept of expropriation in their BITs