“Are We Just Going to Sit Back and Wait for ‘Regulatory Roller Coasters’ to Derail? Balancing Public Policy vs. FET Violations in Investment-Arbitration”

Authors

Gilberto Guerrero-RoccaFollow

Document Type

Article

Publication Date

2022

Excerpt

Two recent awards handed clown by ICSID tribu­nals settled treaty-based arbitration claims filed almost simultaneously back in 2016. Results differed, but clai­mants shared the main argument against the host states: that investors had been treated unfairly due to wide-ranging contradictor¡, regulations (involving several state agencies) - the so-called "regulatory roller coaster."

In Eco Oro Minera/s Corp. v. The Republic of Colombia (ICSID Case No. ARB/16/41, Award Sept. 9, 2021), extensive changes to the mining regulatory framework were justified by Colombia as efforts to protect its environment; and in Staur Eiendom AS, Ebo Invest AS & Rox Holding AS v. The Republic of Latvia (ICSID Case No. ARBí16í38. Award Feb. 28, 2020) changes in the host state's priorities, coupled with the global economic crisis (in late 2000s) stalled a major infrastructure project led by foreign investors. Both tribunals had to decide as to whether public policy and actions taken by each respondent-state violated or not the guarantee of fair-and-equitable-treatment ("FET") enshrined in the relevant treaty.

Recommended Citation

Gilberto Guerrero-Rocca, “Are We Just Going to Sit Back and Wait for ‘Regulatory Roller Coasters’ to Derail? Balancing Public Policy vs. FET Violations in Investment-Arbitration” , 19 Braz. J. Int’l L. 23 (2022).
Available at: https://ecollections.law.fiu.edu/faculty_publications/529