Henckels: A Duty to Consult Foreign Investors When Changing the Regulatory Framework? Implications for Tobacco Control and Beyond

Caroline Henckels (Monash Univ. - Law) has posted A Duty to Consult Foreign Investors When Changing the Regulatory Framework? Implications for Tobacco Control and Beyond. Here's the abstract:

A handful of recent decisions of international investment tribunals can be read as suggesting that the fair and equitable treatment standard obliges governments to consult foreign investors in the course of developing new laws and policies potentially affecting them. This position, if taken up by future tribunals, would significantly expand the fair and equitable treatment standard in terms of its ostensible elements of due process and transparency. This approach also goes far beyond what most domestic legal systems require of governments as a matter of public law. In the case of tobacco control, given the industry’s long history of seeking to prevent, weaken or delay the enactment of legislation and regulations, this development would be cause for concern. Generally speaking, there may be sound instrumental and normative reasons for engaging in consultation with affected stakeholders in the course of legislative and policy development. However, with the exception of treaty provisions that otherwise provide, no duty of consultation in the lawmaking process arises from fair and equitable treatment clauses, customary international law or general principles of law.