This article addresses the complex and topical issue of the relevance of environmental concerns in the context of international investment agreements, from the particular angle of assessing compensation when states are deemed to expropriate foreign investments by means of regulatory measures. Authors tend to concentrate their attention on the actual existence of an expropriation, by frequently asserting that the state goal of protecting fundamental non-commercial values should prevent international adjudicators from considering such national measures as compensable expropriation. Nevertheless, this approach would risk to translate the potential antagonism between different values recognised by international law (investments; environment) into a dichotomous choice in favour of one (full compensation) or the other (no compensation). The idea underlying this article is that in frequent complex cases, it would be preferable to calculate compensation by taking into account the non-commercial values at stake, rather than affording or negating compensation. In particular, a specific standard to assess compensation is proposed, to accurately balance the two antagonist interests: internalising environmental costs due to the expropriated assets. However, sound legal foundations are needed to support the proposed view. This article makes the argument that the standard of internalising environmental costs in the context of international investments law may be directly derived from general concepts of modern market theory (negative spillovers) as well as from important legal principles (such as unjustified enrichment) and linked to other common standards of equity.
The Standards of Compensation for Foreign Investment Expropriations in International Law: Internalizing Environmental Costs?
DI BENEDETTO, SAVERIO
2010-01-01
Abstract
This article addresses the complex and topical issue of the relevance of environmental concerns in the context of international investment agreements, from the particular angle of assessing compensation when states are deemed to expropriate foreign investments by means of regulatory measures. Authors tend to concentrate their attention on the actual existence of an expropriation, by frequently asserting that the state goal of protecting fundamental non-commercial values should prevent international adjudicators from considering such national measures as compensable expropriation. Nevertheless, this approach would risk to translate the potential antagonism between different values recognised by international law (investments; environment) into a dichotomous choice in favour of one (full compensation) or the other (no compensation). The idea underlying this article is that in frequent complex cases, it would be preferable to calculate compensation by taking into account the non-commercial values at stake, rather than affording or negating compensation. In particular, a specific standard to assess compensation is proposed, to accurately balance the two antagonist interests: internalising environmental costs due to the expropriated assets. However, sound legal foundations are needed to support the proposed view. This article makes the argument that the standard of internalising environmental costs in the context of international investments law may be directly derived from general concepts of modern market theory (negative spillovers) as well as from important legal principles (such as unjustified enrichment) and linked to other common standards of equity.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
