Regulatory Takings in Institutional Context: Beyond the Fear of Fragmented International Law

Abstract

The last decade has witnessed a rebirth of popular and academic interest in the international norms governing expropriation. Debate has centered on the competing claims of corporations, host states, nongovernmental organizations (NGOs), and other actors over the extent to which governments may regulate their economies in a manner that affects foreign investment without compensating investors for resulting economic harm. The current controversy over regulatory takings represents the second act in international law’s expropriation battles; whereas the first act comprised the long dispute between North and South over compensation after an overt nationalization, today’s dispute turns on whether a governmental regulation is an expropriation in the first place. This issue is not new to international law, as old diplomatic intercourse and arbitrations demonstrate; but the range of actors making claims, the venues for their resolution, and the outcomes of these processes are more diverse, particular attention having been generated by the case law of arbitrations under the North American Free Trade Agreement (NAFTA) and bilateral investment treaties (BITs). Complaints have concerned both the outcomes of disputes and the processes involved in their resolution.

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