Do Clarified Indirect Expropriation Clauses in International Investment Treaties Preserve Environmental Regulatory Space?

摘要

The last twenty years have witnessed a number of investor-state disputes in which investors claimed host states' environmental regulations were indirect expropriations of foreign investments, resulting in host states paying large amounts of compensation to foreign investors. To preserve the regulatory space of host states, in the past decade, around 42% of newly concluded international investment treaties have incorporated a clarification on when a state measure that affects foreign investments constitutes indirect expropriation. Such clauses can he called "clarified" indirect expropriation clauses, as distinguished from traditional expropriation clauses. Are these new clauses effective in protecting states' environmental regulatory power? This question is important to states, environmentalists, and foreign investors. However, there is a lack of empirical examination of this question in the literature.