This article argues that the incorporation of the least restrictive alternative measure test to interpret ‘necessary’ in non-precluded measures provisions marks a rejection of the use of the customary international law defence of necessity to interpret the treaty defence of necessity.
Authors
Prabhash Ranjan, Senior Assistant Professor, Faculty of Legal Studies, South Asian University, New Delhi, India [He is currently Professor and Vice Dean (Continuing Education), Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana, India.]
Summary
One of the controversial issues in international investment law disputes has been the interpretation of ‘necessary’ in the non-precluded measures (NPM) provisions in bilateral investment treaties (BITs). Investor-state dispute settlement (ISDS) tribunals have employed different methodologies to interpret ‘necessary’ in the NPM provisions ranging from using the customary international law defence of necessity codified in Article 25 of the ILC Articles on State Responsibility to using the World Trade Organization (WTO)’s necessity analysis.
However, a robust interpretative framework for ‘necessary’ in BITs’ NPM provisions remains elusive. Given this aspect, the new treaty practice of India to incorporate the least restrictive alternative measure (LRM) test in its newly signed BITs to interpret ‘necessary’ in NPM provisions has regenerated the debate on the interpretation of ‘necessary’ in NPM provisions.
This article argues that the incorporation of the LRM test to interpret ‘necessary’ in NPM provisions marks a rejection of the use of the customary international law defence of necessity to interpret the treaty defence of necessity. The article proposes a two-step analytical interpretative framework aimed at operationalizing the LRM test to interpret ‘necessary’ in BITs’ NPM provisions.
This framework is deferential to the host State’s regulatory autonomy and will also ensure that States fully comply with their treaty obligations towards foreign investors.
Published in: Netherlands International Law Review
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