States' prescriptive jurisdiction and the 'police powers doctrine'
<p>States' ability to promote the 'public interest', and to pursue their social, environmental, economic and fiscal objectives in light of widening and deepening international economic regulation has generated significant discussion. This dissertation critically examines the �...
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| Format: | Thesis |
| Language: | English |
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2015
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| Summary: | <p>States' ability to promote the 'public interest', and to pursue their social, environmental, economic and fiscal objectives in light of widening and deepening international economic regulation has generated significant discussion. This dissertation critically examines the 'police powers doctrine' developed in arbitral practice and academic discussion concerning international law on investment protection. It considers whether police powers can be reconciled with the 'traditional' approach to States' regulatory authority in general international law, the rules governing prescriptive jurisdiction. </p> <p>Three main issues are considered: (i) how general international law governs States' ability to create and apply laws within their territory; (ii) the origins of the police powers doctrine and how it has featured in arbitral practice on investment protection; and (iii) whether police powers can be doctrinally and conceptually reconciled with the general international law governing States’ prescriptive jurisdiction. </p> <p>It is demonstrated that police powers suffers from critical flaws when considered from both legal validity and coherence perspectives. The dissertation’s central argument however is that police powers is more broadly irreconcilable with the general international law governing States’ prescriptive jurisdiction. It is shown that police powers represents a significant departure from the extant law on States' prescriptive jurisdiction in three respects: (i) it changes the nature of States' authority to create and apply laws within their territory from one of residual plenary freedom to one based on conditional authorisation; (ii) it shifts from an approach based on legality to one based on 'legitimacy'; and (iii) it shifts the focus away from the legal content and consequences of States' assumed obligations, with corresponding consequences for auto-limitation as the basis of obligation in the protection of foreign investment. </p> |
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