Balancing Investors’ and Host States’ Rights – What Alternatives for Treaty-makers?

Abstract

The quest for a viable balancing of investors’ and host states’ rights has always been the core issue of the law of foreign investment. Within the realm of customary international law, the opposition between concepts advocated by capital-exporting countries – such as the acquired-rights doctrine or the Hull formula – and those defended by capital-importing states – such as the Calvo doctrine or the concept of “new international economic order” – demonstrates the long history of the difficulties to find common ground on this fundamental question. Attempts to negotiate multilateral investment agreements have repeatedly been hampered by the opposition of those states who wish to obtain maximum investment protection and those who are concerned about their “policy space”. The failed negotiations within the OECD in the 1960s and the 1990s, within the UN between the 1970s and the 1990s, and within the WTO at the beginning of the twenty-first century are striking examples of the difficulties in agreeing on clear-cut rules in this regard.

The views expressed are those of the author alone and do not necessarily reflect the position of the French government