In search of necessity: congruence, proportionality, and the least-restrictive means in investor-state dispute settlement.: An article from: Georgetown Journal of International Law
Book Details
Author(s)Luke Engan
PublisherGeorgetown University Law Center
ISBN / ASINB008YPOJNM
ISBN-13978B008YPOJN4
AvailabilityAvailable for download now
Sales Rank99,999,999
MarketplaceUnited States 🇺🇸
Description
This digital document is an article from Georgetown Journal of International Law, published by Georgetown University Law Center on January 1, 2012. The length of the article is 11009 words. The page length shown above is based on a typical 300-word page. The article is delivered in HTML format and is available immediately after purchase. You can view it with any web browser.
From the author: Investment tribunals have exhibited several distinct methods of defining "necessity" as the term appears in international investment agreements, as well as the necessity defense in customary international law. At the World Trade Organization, panels and the Appellate Body have faced the question of how to define necessity as it appears in the general exceptions to goods and services trade disciplines, and the Appellate Body has developed a framework that is applicable in the context of investment law. Reduced to its essence, the framework has three elements. First, the framework includes a means-ends nexus, or congruence, requirement by considering the challenged state action's contribution to the state's policy objectives. Second, panels and the Appellate Body consider the proportionality of the challenged state action, weighing the relative importance of the interests or values that the state intends to protect and the action's detrimental impact on exports or imports. Third, the framework examines whether the state action constitutes the least restrictive means of achieving the state's objectives by examining alternative measures to determine whether they are reasonably available and whether they would constitute a lesser deviation from the state's obligations under trade rules. This framework should be adopted in investor-state arbitral proceedings, with appropriate deviations in its application to account for instrumental differences between the necessity defenses found in investment law and customary international law and the necessity exceptions in trade law.
Citation Details
Title: In search of necessity: congruence, proportionality, and the least-restrictive means in investor-state dispute settlement.
Author: Luke Engan
Publication:Georgetown Journal of International Law (Magazine/Journal)
Date: January 1, 2012
Publisher: Georgetown University Law Center
Volume: 43 Issue: 2 Page: 495(27)
Distributed by Gale, a part of Cengage Learning
From the author: Investment tribunals have exhibited several distinct methods of defining "necessity" as the term appears in international investment agreements, as well as the necessity defense in customary international law. At the World Trade Organization, panels and the Appellate Body have faced the question of how to define necessity as it appears in the general exceptions to goods and services trade disciplines, and the Appellate Body has developed a framework that is applicable in the context of investment law. Reduced to its essence, the framework has three elements. First, the framework includes a means-ends nexus, or congruence, requirement by considering the challenged state action's contribution to the state's policy objectives. Second, panels and the Appellate Body consider the proportionality of the challenged state action, weighing the relative importance of the interests or values that the state intends to protect and the action's detrimental impact on exports or imports. Third, the framework examines whether the state action constitutes the least restrictive means of achieving the state's objectives by examining alternative measures to determine whether they are reasonably available and whether they would constitute a lesser deviation from the state's obligations under trade rules. This framework should be adopted in investor-state arbitral proceedings, with appropriate deviations in its application to account for instrumental differences between the necessity defenses found in investment law and customary international law and the necessity exceptions in trade law.
Citation Details
Title: In search of necessity: congruence, proportionality, and the least-restrictive means in investor-state dispute settlement.
Author: Luke Engan
Publication:Georgetown Journal of International Law (Magazine/Journal)
Date: January 1, 2012
Publisher: Georgetown University Law Center
Volume: 43 Issue: 2 Page: 495(27)
Distributed by Gale, a part of Cengage Learning
