The Balance between the Public Interest and Investor Protection
Dr. Mohamed Aboubakr
Assist. Prof. of Public Law – Faculty of Law – University of Sultan Qaboos & Mansoura University
Dr. Abdullah Alhabeeb Almahjoub
Assist. Prof. of Public Law – Faculty of Law – University of Sultan Qaboos
Abstract:
This paper’s aim is to provide information relating to the balance between investor protection and the public interest in international investment law and United Kingdom law. From the discussion, five main issues were raised: the notion of public interest, the state’s right to regulate, the role of the principles of international investment law and United Kingdom law in balancing investor protection with the state’sright to protect public interests, and the mechanisms of balancing state rights and investor protection.
Without a doubt, states have the right to regulate their social, political and economic affairs. The mandate to govern emanates from many legal justifications, including the sovereignty of a state, the contract theory and a government’s obligations to protect its citizens. However, a state’s support of binding international investment treaties ensures that its regulations are consistent with its obligation under the treaty; therefore, the right to regulate does not justify the violation of investors’ rights. At the center of the right to regulate is the obligation to prevent the breach of legitimate expectations, which form the basis of investment decisions. This brings us to the principles of international investment law, including fair and equitable treatment, a stable and predictable legal framework, due process and proper dispute resolution mechanisms. It is arguable that the international investment principles are crafted with the investor in mind and are not sufficient to address the day-to-day dynamics relating to public interests. An essential aspect of a trade agreement is the creation of a dispute resolution mechanism capable of resolving issues arising from conflicts between foreign investments and public interest. Foreign investors’ interests are safeguarded by the right to access neutral and effective dispute resolution mechanisms that are capable of enforcing their rights as provided by relevant treaties. While the same applies to citizens in the host country, the public interest is given more prominence by the state’s right to regulate.
Keywords: International Investment Law, Legitimate Expectations, The State Sovereignty, The Contract Theory, Dispute Resolution Mechanisms.