Investor-State Dispute Settlement in the Digital Economy: The Case for Structured Proportionality

Ginsburg, Robert | February 1, 2019

The surge of economic nationalism and cross-border technology investments foreshadows disputes between inbound investors and host governments. While cross-border technology transfer is essential for economic development in many countries, host governments retain the right to safeguard citizens against potential consequences of such investments. The tension between these two concepts provides a significant challenge to the future of foreign direct investment and the global economy. For these reasons, legislators and arbitrators must develop and enforce regulations that protect public interests while enabling investors to successfully operate in the host country. In anticipation of these disputes, this article will explain how arbitral tribunals can use structured proportionality to accomplish this objective. More specifically, this article explains the causes of upcoming disputes, introduces a proportionality analysis of the government’s right to regulate and the degree to which the investor’s rights are threatened, and demonstrates how the consistent implementation of a structured proportionality test will maximize the chances that regulators and arbitrators will find balanced solutions that account for the interests of all stakeholders of FDI projects.