Publication Type

Book Chapter

Version

submittedVersion

Publication Date

1-2022

Abstract

Article 8.9 CETA on “Investment and Regulatory Measures” is at the centre of continuous and vigorous debate on how to ensure a proper balance between private business interests and the prerogative of States to regulate public welfare issue. The concerns expressed in the debate on the right to regulate are well-known. International investment agreements (IIAs) came under criticism due to their substantive protection standards, whose language is perceived as lacking in precision; as a consequence, they deliver too little policy flexibility. The protection standards together with the investor-State dispute settlement (ISDS) system, moreover, afford high levels of discretion to the legal delegation to adjudicators thereby further taking away the control of States. At the same time, it would be wrong to affirm that arbitral tribunals have denied the State’s right to regulate (and re-regulate) in the past. They were criticised for adopting approaches that are more responsive to the particular interests of private capital and for not having adopted similar approached in place at the domestic law level. Under CETA, a foreign investor can directly invoke the substantive protection standards against the host State or the EU. Therefore, investment tribunals under the Investment Court System (ICS) are in charge of undertaking the balance between the host States’ right to regulate and the investors’ rights. As the present commentary shows, Article 8.9 is a central provision of CETA. It serves interpretative purposes seeking to guide the discretionary powers of adjudicators when weighing the various public and private interests at stake in future cases.

Keywords

CETA, right to regulate, public purpose, international investment agreements, sustainable development, discretion, proportionality, ISDS, investment arbitration

Discipline

International Trade Law

Areas of Excellence

Growth in Asia

Publication

U-Canada CETA Investment Law - Article-by-Article Commentary

First Page

236

Last Page

255

ISBN

9781509934676

Publisher

Hart Publishing/Nomos

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