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  • Series: Elgar International Investment Law series x
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Valentina Vadi

This chapter addresses the question of whether the concept of proportionality can and/or should migrate to international investment law and arbitration. Depending on context, proportionality can be defined as an objective of policy makers, and as a particular structured approach to judicial review. Proportionality requires that policy makers and adjudicators strike an appropriate balance between the public and private interests and give reasons for the restriction of individual autonomy. It seems to have a mathematical precision. However, critics contend that proportionality is a chimera. While formally appealing, the concept remains substantively indeterminate. Because of its indeterminacy, it contributes little to restraining the legislative, executive and adjudicative powers of states. Rather, critics contend, proportionality risks empowering the adjudicators to second guess national policy makers. Against this background, the chapter examines the promises and pitfalls of the concept. It then illustrates the migration of the notion of proportionality from its constitutional matrix to EU and international trade law. The chapter then critically assesses whether proportionality has migrated to international investment law, and, if not, why not. It also investigates whether proportionality can be considered to be a general principle of international investment law.

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Valentina Vadi

Reasonableness is a standard of good governance that guides states in adopting measures, calibrating public and private interests and giving reasons for their action. Several international law instruments require that state action be reasonable. International courts and tribunals have also used reasonableness to review state action. Despite its pervasiveness, the concept of reasonableness remains underexplored in international investment law. In order to address this gap in legal scholarship, this chapter examines the analytical merits and pitfalls of the concept of reasonableness and its use in investment treaty arbitration. It investigates whether, and if so to what extent, reasonableness has migrated to international investment law and arbitration and/or whether it belongs to the field. It then evaluates whether the use of reasonableness in investment arbitration can be desirable and under what circumstances. The chapter highlights that reasonableness may be an appropriate criterion of review, one that has been used extensively by arbitral tribunals and other international courts.

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Valentina Vadi

This chapter examines the standards of review developed by arbitral tribunals, and investigates whether there are convergences and/or divergences between such standards and those adopted by different international courts and tribunals. The chapter highlights that arbitral jurisprudence has not developed a systematic approach to the standards of review. At the same time, arbitral tribunals have shown a certain familiarity with the reasoning of other international courts and tribunals. The chapter also shows that while there is no uniform approach to the issue of the standards of review across international courts and tribunals, a completely deferential review of state conduct would go against the very purpose of international (investment) law; at the same time, an intrusive standard of review is also ill-advised as international arbitrators should not assume the functions of national legislators and decision-makers. Therefore, the chapter calls for an intermediate solution that combines scrutiny and respect for the regulatory autonomy of states.

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Valentina Vadi

This chapter connects the dots and maps the interaction between proportionality, reasonableness and standards of review. Whatever the test selected by the arbitrators – be it proportionality or reasonableness – the intensity of review is one of the main tools to calibrate it. Because of the strict scrutiny imposed by the proportionality test, a more deferential standard of review should be adopted when applying such test. International courts and tribunals adopting the proportionality analysis generally complement it with some deference. Conversely, because the structure of the reasonableness test is more lenient, it may require a more intense standard of review. For instance, the International Court of Justice complements the reasonableness criterion with a standard of objective review. In the end, the discussion about proportionality, reasonableness and standards of review concerns the question as to what role arbitral tribunals should play in the international legal system, and that concerning the ultimate aims of international investment law.

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Valentina Vadi

International investment law is one of the most dynamic fields of international law, and yet it has been criticised for failing to strike a fair balance between private and public interests. In this valuable contribution to the current debate, Valentina Vadi examines the merits and pitfalls of arbitral tribunals’ use of the concepts of proportionality and reasonableness to review the compatibility of a state’s regulatory actions with its obligations under international investment law.
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Lukas Vanhonnaeker

This discerning book examines the interface between intellectual property and foreign direct investments to consider one key question: how does the international investment law framework and the international legal regime regulating intellectual property converge? The book scrutinizes circumstances in which and to what extent international investment law’s traditional protective standards apply to intellectual property rights investments and contributes to debate surrounding the fragmentation of international law, arising from its expansion and diversification.
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Intellectual Property: Increasing Protections under US Influence

The Evolution of Australian Policy on Trade and Investment

Andrew D. Mitchell, Elizabeth Sheargold and Tania Voon

Intellectual property chapters of preferential trade agreements stipulate minimum levels of protection, including criteria for the subject matter of protections, as well as the nature of the rights granted. As these agreements set a ‘floor’ or baseline for protection, they provide limited flexibility for governments and could potentially undermine any regulation that affects the registration or use of intellectual property rights. This chapter explains how Australia’s preferential trade agreements, particularly the Australia–United States Free Trade Agreement and others modelled on it, have increased the required protections for intellectual property beyond those mandated by the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property. The chapter addresses copyright, trademarks and patents, as well as highlighting trademark-related tobacco disputes in the context of international trade law and international investment law. The chapter cautions against further increases in intellectual property protections under international economic treaties and reflects on reform possibilities. Keywords: copyright, intellectual property, international trade law, patent, trademark, TRIPS

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Regulatory Autonomy and the Evolution of Australia’s Participation in PTAs and BITs

The Evolution of Australian Policy on Trade and Investment

Andrew D. Mitchell, Elizabeth Sheargold and Tania Voon

Although a major proponent of multilateralism, in recent decades Australia has become an enthusiastic participant in bilateral and regional economic initiatives. This chapter provides an overview of Australia’s entry into preferential trade agreements and bilateral investment treaties, situating each generation of these agreements in its political and economic context. It examines how the scope, objectives and content of these agreements have changed over time, identifying key factors that have influenced these changes. The chapter also explains the meaning of ‘regulatory autonomy’ in this book and outlines the structure and purpose of the rest of the book. By their very nature, trade and investment agreements limit regulatory autonomy, by precluding States from implementing policies that adversely affect international trade or foreign investment. This chapter explains why services, intellectual property and investment are of particular concern for Australia, as explored in greater detail in subsequent chapters. Keywords: international economic law, investment, policy space, public international law, regionalism, trade

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Metka Potočnik

This chapter explores the existing legal framework for tools, which would allow arbitrators in trade mark investment disputes to approach the adjudication in a balanced manner. It offers an analytical approach, which is normatively underpinned by the international rule of law as found in the 2012 UN Declaration (thick definition). Cases presented in Chapter 1 should be adjudicated in the broader normative framework of international law. That means that arbitrators should avoid an approach, which limits their consideration to the provisions of international investment treaties only. It is argued here that particularly in cases of trade mark investments, arbitrators have an increased duty of knowing the law (iura novit curia/arbiter). Only when arbitrators know the rules of trade mark law (distinctive character, the importance of the average consumer and market context) is there a possibility to avoid the over- or under-protection of trade marks under investment treaties.