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Faculty Scholarship at Penn Law

Foreign investors

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Full-Text Articles in Political Science

Private Litigation In A Public Law Sphere:The Standard Of Review In Investor-State Arbitrations, William W. Burke-White, Andreas Von Staden Aug 2009

Private Litigation In A Public Law Sphere:The Standard Of Review In Investor-State Arbitrations, William W. Burke-White, Andreas Von Staden

Faculty Scholarship at Penn Law

International arbitration and, particularly, investor-state arbitration is rapidly shifting to include disputes of a public law nature. Yet, arbitral tribunals continue to apply standards of review derived from the private law origins of international arbitration, have not recognized the new public law context of these disputes, and have failed to develop a coherent jurisprudence with regard to the applicable standard for reviewing a state's public regulatory activities. This problematic approach is evidenced by a recent series of cases brought by foreign investors against Argentina challenging the economic recovery program launched after a massive financial collapse and has called into ...


Investment Protection In Extraordinary Times: The Interpretation And Application Of Non-Precluded Measures Provisions In Bilateral Investment Treaties, William W. Burke-White, Andreas Von Staden Jan 2008

Investment Protection In Extraordinary Times: The Interpretation And Application Of Non-Precluded Measures Provisions In Bilateral Investment Treaties, William W. Burke-White, Andreas Von Staden

Faculty Scholarship at Penn Law

When threatened by crises such as global terrorism, financial collapse, pandemic diseases, and natural disasters, states may resort to measures that harm the interests of foreign investors protected under the bilateral investment treaty (BIT) regime. Many such BITs, however, contain heretofore under-studied clauses that preclude liability for state actions taken in response to exceptional circumstances. These non-precluded measures (NPM) clauses effectively transfer the risk of and costs associated with state action in exceptional circumstances from the host-states of international investments to the investors. In two recent cases brought against Argentina in response to the Argentine financial crisis, ICSID tribunals have ...