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Investment Arbitration and Police Powers: Emerging Issues

The doctrine of police powers is increasingly raised as a defence by host States in investment arbitration proceedings, in particular in the context of claims with an environmental component. The succinct analysis below highlights that while the doctrine can effectively be enforced by arbitral tribunals in determining that a measure taken by a host State and resulting in loss of property of an investor does not constitute expropriation, certain concerns with the application of this doctrine must still be addressed. The limitations to the police powers, as well as the issue of burden of proof, as recently discussed in Les Laboratoires Servier v. Poland, are few of the matters of concern. Further, the discussion is even more timely in the context of the investor-State dispute settlement reform and the discussions in the UNCITRAL Working Group III.