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The balance between investor protection and the right to regulate in investment treaties: A scoping paper


  • David Gaukrodger


There is vigorous debate about reforms to address the balance between investor protection and the right to regulate in the over 3000 existing investment treaties. This paper first notes the growing trend to analyse particular treaty rules rather than treaties as a whole and the importance of comparative analysis of balancing under other regimes. It then outlines issues in four areas: (i) the types of regulation potentially at issue in investment treaty claims by covered investors; (ii) the types and levels of investor protection; (iii) the degree of impact of treaties on regulation; and (iv) the processes and institutions that may be involved in balancing interests in investor protection and the right to regulate. While the paper recognises that dispute resolution institutions have a significant impact on the balance and the right to regulate, it focuses primarily on substantive issues in light of other ongoing work on dispute settlement.

Suggested Citation

  • David Gaukrodger, 2017. "The balance between investor protection and the right to regulate in investment treaties: A scoping paper," OECD Working Papers on International Investment 2017/2, OECD Publishing.
  • Handle: RePEc:oec:dafaaa:2017/2-en
    DOI: 10.1787/82786801-en

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    Cited by:

    1. Engler, Philipp & Tervala, Juha, 2018. "Welfare effects of TTIP in a DSGE model," Economic Modelling, Elsevier, vol. 70(C), pages 230-238.

    More about this item


    bilateral investment treaties; investment treaties; investor protection; policy space; regulatory autonomy; right to regulate;

    JEL classification:

    • F02 - International Economics - - General - - - International Economic Order and Integration
    • F13 - International Economics - - Trade - - - Trade Policy; International Trade Organizations
    • F23 - International Economics - - International Factor Movements and International Business - - - Multinational Firms; International Business
    • F53 - International Economics - - International Relations, National Security, and International Political Economy - - - International Agreements and Observance; International Organizations
    • F60 - International Economics - - Economic Impacts of Globalization - - - General
    • H11 - Public Economics - - Structure and Scope of Government - - - Structure and Scope of Government
    • H40 - Public Economics - - Publicly Provided Goods - - - General
    • K23 - Law and Economics - - Regulation and Business Law - - - Regulated Industries and Administrative Law
    • K29 - Law and Economics - - Regulation and Business Law - - - Other
    • K33 - Law and Economics - - Other Substantive Areas of Law - - - International Law
    • K4 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior

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