Protecting Foreign Investments in Public Services: Regulatory Stability at Any Cost?

The article addresses the tension between regulatory stability and regulatory change within the international regime for the protection of foreign investments. The work focuses on public services, a sector where striking a balance between stability and change has been highly problematic. In this context, modifications of the regulatory framework may substantially affect the profitability of investments that normally presuppose large network infrastructures. On the other hand, adapting the regulatory framework to ever-changing social needs is crucial to pursue fundamental social purposes. The article deals with this tension through the prism of the fair and equitable treatment standard and the protection of investors’ legitimate expectations. The analysis shows that there has been an evolution in the arbitral practice, but that there is still considerable uncertainty on key aspects. The paper proposes the adoption of an interpretive approach that can help ease the tension between stability and change