Chapter 21: Governance and International Investment Treaties for Asia: A Principled Approach to Assessing Regulatory Action

in International Investment Treaties and Arbitration Across Asia
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The world is characterised by intertwined global value chains and regional clusters of economic activity, especially across Asia. Economic regulation of markets in a global context should proceed in a principled fashion according to general principles of law. Both economic theory and legal doctrine support the need for rules that govern markets and guide appropriate regulatory responses. The object of that regulation should be the promotion of economic welfare, not simply the protection of property, as if it were an absolute right. The ‘right to regulate’ has tended to be emphasised in Asian investment treaty practice but should be reconceptualised as an aspect of the governance of social institutions, which requires a realistic assessment of both market and government failure. The public law values of transparency and accountability, through the use of public reason, are built into the three foundational principles of subsidiarity, proportionality and rationality. These principles, articulated as Principles of Best Practice Regulation and being promoted by a number of international investment treaties, help us design well-suited regulatory systems.

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