SRR · Sovereignty and the Right to Regulate

Sovereignty and the Right to Regulate

The overall aim of the project is to fill an important gap in the scholarship on international economic law by subjecting to analytical and empirical scrutiny a central notion in this field: the idea that, in order to preserve the possibility of meaningful democratic choice, we need to find an appropriate balance between the conflicting values of investment protection or free trade, on the one hand, and the states’ ability to regulate in the public interest, on the other. The rhetoric of balance is particularly prevalent in the scholarship on investment law. However, it is far from obvious that the notion of balancing enables us to capture the multiplicity of claims and arguments that have been advanced about the constraining effects of investment treaties. My aim is not simply to pave the way to a more nuanced description of the underlying issues. I also explore the framing effects of the balancing language. This issue has great importance for the society at large. Investment protection has been subjected to fierce criticism in recent years. It is claimed that it puts excessive emphasis on the rights of investors at the expense of democracy, the environment, worker rights, etc. In the specialist literature, all these concerns have been filtered through the balancing language and cast as 'non-economic considerations' to be weighed against 'economic considerations' (such as the value of increased investment). Yet if, as I claim, the notion of balancing distorts in many ways the criticism that different societal groups have addressed to the investment regime, it is unlikely that this criticism will even receive a fair hearing. In other words, the shortcomings of the balancing language can stand in the way of achieving highly important objectives (such as safeguarding the possibility of pursuing public policies which may harm investment). The overall objective of the project is to bring to light the distorting effects accompanying the balancing rhetoric and to render the scholarship on international economic law more receptive to the concerns of the public.

Data: CORDIS, © European Union