Public Policy versus Private Interest: Has Balance Been Maintained in Investment Protections in the Asia-Pacific Region? - Chapter 9 - Investment Treaty Arbitration and International Law - Volume 4
Anne K. Hoffmann, LL.M., admitted to practice in Berlin and England & Wales, is a Partner at Python & Peter, based in Geneva.
Originally from Investment Treaty Arbitration and International Law - Volume 4
A comprehensive network of bilateral and multilateral agreements ensuring the promotion and protection of investments covers the globe and therefore, naturally, also the Asia-Pacific region. Being home to countries like the United States of America, China, India, Japan, Malaysia, Korea and others with increasing economic strength, this region is of global economic importance and will continue to be in the economic focus for decades to come. Foreign direct investment is considered an important part of this increasing economic strength in the Asia-Pacific region. Its role, in particular, the protection of investments in this region, shall be addressed in this paper. The question at heart, namely whether a balance between public policy and private interest has been maintained shall be analyzed by looking in some detail at the developments in the BIT programs of the U.S. and China as well as by turning a spotlight on the investment protection of the ASEAN1 countries and India. However, any analysis of the trends in the investment protection undertaken by these countries can only yield a satisfactory answer to the question whether the balance has been maintained if one has formed an opinion on when such a balance between public policy and private interest is actually reached. In the author's view it is legitimate for both a State to seek foreign investment while still wishing to regulate its matters, such as public health and safety, and an investor to wish to protect his investment in the territory of that State against measures with detrimental effect. Accordingly, the ‘right balance' between public policy and private interest can only be maintained if one is not outweighed by the other. This contribution shall seek to address this issue by focusing upon those provisions of investment agreements which are classically viewed as ensuring the substantive and procedural protection of investments, thereby following the changes the investment protection of the above-mentioned exemplary States might have undergone. On that basis, it will determine whether the current state of affairs regarding the investment protection in the Asia-Pacific region has maintained a satisfactory balance.