Right to Regulate for Sustainable Development in International Investment Law : The Challenge of Incomplete Assessments, Promise of Sustainable Investment, and Need for Reserved Optimism

Abstract: Within international investment law scholarship, increased attention has been devoted to the capacity of international investment law, which includes investment treaty arbitration, to facilitate sustainable development. Scholars increasingly agree that issues of sustainable development permeate throughout the international investment law system and thus cannot be viewed as beyond its scope and jurisdiction. From that juncture, however, there is a wide divergence of opinions concerning the impacts of the investment law regime on sustainable development.Current investment treaty practice, for instance, has been flagged as limiting the promotion of sustainable investment, with the Global South shouldering a greater burden with the shifting dynamics of global economic integration. Meanwhile, others believe that sustainable development and international investment law do not share a necessarily “inimical” relationship, instead pointing to possibilities of a “closer nexus” that can guide the future practice of international investment law. In this manner, the scholarship can be split into two prevailing views: (1) there remain opportunities to reform international investment law through embracing sustainability and inclusivity (the evolutionary view) and (2) international investment law is inherently an impediment to sustainable development needs (the revolutionary view).This dissertation rallies to the evolutionary approach by positing that by complementing the existing system of international investment law with the interdisciplinarity that constitutes sustainable development and then imbuing this nexus into the heart of that system, then international investment law can embody a powerful role in advancing sustainable development. To do this, the dissertation begins by identifying a dimension in the intersection between international investment law and sustainable development where enhanced interdisciplinarity can have an empowering effect. Namely, this dimension is a type of safeguard that host states can appeal to either when negotiating the provisions of an international investment agreement or during an investment treaty arbitration called reserving the right to regulate in the public interest, specifically when involving matters of sustainable development. One of the primary shortcomings obstructing a harmonious interplay between international investment law and sustainable development from this particular dimension, however, is that there lacks a means to test whether a public policy measure taken by the host state or an investment by the foreign investor contributes to sustainable development.