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Title: Stability guarantees in investment treaty arbitration : a question of balancing competing rights
Author: Esan, Adenike Oluwatoyin
ISNI:       0000 0004 7432 0509
Awarding Body: University of Aberdeen
Current Institution: University of Aberdeen
Date of Award: 2018
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In recent times, there has been increasing recourse to investor–state arbitration, as foreign investors are continually in search of effective Stability Guarantee enforcement mechanisms. This thesis examines the interaction between the concept of Stability Guarantee and the investment treaty protection standards, including fair and equitable treatment, full protection and security, the umbrella clause, and prohibition against unlawful expropriation. By focusing on investor–state arbitral tribunals' diverse approaches to interpreting host states' treaty obligations vis-à -vis foreign investors' multifarious claims of breach of Stability Guarantees, this thesis investigates if the twofold investment protection mechanisms of Stability Guarantees, on one hand, and investment treaty substantive standard protections, on the other, guarantee absolute stability and predictability of host states' legal and investment frameworks in favour of foreign investors. This thesis argues that although investment treaty protections reinforce and enhance investor-claimants' Stability Guarantee claims, the state of play is multidimensional, involving numerous variables and factors, and does not imply a relinquishment of host states' sovereign inalienable rights to regulate, leading to the conclusion that there is no guarantee of absolute stability. In the main, the thesis finds that the diverse, multifaceted and interconnected range of issues arising from foreign investors' pursuit of redress for host states' real or ostensible violation of Stability Guarantees turn on balancing the conflicting interests of foreign investors in stability against host states' inalienable sovereign rights to regulate freely. As Stability Guarantees' function is largely to curtail host states' sovereign legislative and regulatory powers to regulate freely, the tension between these two competing interests is evident in all the investor–state arbitration cases involving breaches of Stability Guarantees, thereby making balancing of such conflicting rights an imperative. Tribunals' attempts at undertaking the requisite balancing tasks have elicited inconsistent decisions due to lack of a consensual or established balancing technique operating in the international investment law system. The thesis identifies the structure-based proportionality analysis as an appropriate and viable technique for the determination of foreign investors' claims bordering on breaches of Stability Guarantees. It is proposed for adoption as a balancing tool because of its potential to prevent abuse of arbitral discretion, promote certainty and predictability of arbitral practice, infuse a significant measure of consistency into investor–state arbitral tribunals' determinations and ultimately remedy the perception of bias and the legitimacy crisis currently besetting the investor–state dispute resolution system. However, it needs to be properly understood and embraced in order for it to be effective in achieving fair and balanced outcomes for foreign investors and host states.
Supervisor: Hunter, Tina ; Kee, Christopher Sponsor: University of Aberdeen
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available
Keywords: Investments, Foreign (International law) ; International commercial arbitration