MJIEL Vol 10 Issue 1 2013 - Article 3

Stability in Contemporary Investment Law: Reconsidering the Role and Shape of Contractual Commitments in Light of Recent Trends
Antoine P. Martin

ABSTRACT: The issue of framework stability is a recurrent topic in investment law which still raises interrogations in academic and arbitral circles. Stability is particularly considered in relation to stabilisation clauses in investment contracts, but debates are stagnating on whether or not the clauses could actually work in practice. This paper attempts to contribute to the debate, not by asking whether stability commitments could have an impact on sovereignty and regulatory powers, but by looking at the various contextual factors susceptible to affect their legitimacy, sustainability and, ultimately, their viability. Although few tribunals have had the opportunity to consider stabilisation clauses recently, it overall suggests that the very notion of stability commitments is weakening as a result of various shifts in international economic relations as well as in international arbitral trends, and ought to be reconsidered in order to be, not only sustainable, but effective.

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