MJIEL Vol 14 Issue 3 2017 - Article 3

The Police Powers Doctrine in International Investment Law
Noam Zamir
 
ABSTRACT: International investment arbitral tribunals have been facing the need of drawing the line between legitimate regulatory measures that do not constitute expropriation and measures that are tantamount to expropriation. While some tribunals have decided to focus solely on the effect of the given measure, without considering the context and the motives of the host state, other tribunals have acknowledged that in light of customary law, measures that fall within the scope of the police powers doctrine are not compensable. However, there has been no agreement regarding the scope of the police powers doctrine. In order to facilitate the understand regarding the scope of the police powers doctrine, this article examines this doctrine in detail in light of customary law and relevant case law. It argues that the doctrine currently encompasses only limited measures that pertain to tax, protection of health, moral and public order (such as a forfeiture for crime).

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