Protecting Regulatory Measures in Investment Treaty Law
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ABSTRACT:

This article explores the extent to which the general exceptions found in Article XX of the GATT 1947 can be incorporated into investment treaties to better balance protection of investments with a state’s ability to regulate in the public interest. The impetus for this article is Australia’s recent rejection of investor-state arbitration, which raises the risk that other states in the Asia-Pacific will follow this policy. At the core of Australia’s concern was the risk of investment treaties curtailing legitimate regulatory action. After evaluating the ways in which investment treaty law already protects regulatory measures, this article explores how Article XX of the GATT seeks to protect regulatory measures within the framework of promoting liberalised trade. Rather than rejecting investor-state arbitration, the article advocates incorporating general exceptions into investment treaties as a means of better protecting regulatory measures.

keywords
Investment treaty
BIT
International trade
Regulatory measures
Public interest
Expropriation
National treatment
General exceptions
Investor-state arbitration
Article XX of the GATT
about the authors

Jesse Kennedy is an Australian legal practitioner, a former Associate to the Hon. Justice Gummow AC of the High Court of Australia and currently an Associate at Norton Rose in Sydney. He specialises in international arbitration with a focus on investment treaty law.

e-mail: jesse.kennedy@nortonrose.com