Against balancing: Revisiting the use/regulation distinction to reform liability and compensation under investment treaties

A network of over three thousand treaties governs international investment. These investment treaties share remarkable similarities in their structure and core provisions.' They provide foreign investments with a suite of legal protections from adverse conduct by "host" states in which they invest. If a foreign investor believes that the host state has breached these treaty protections, it can bring a claim against that state to international arbitration. This mechanism for adjudication of claims under investment treaties is popularly known as investor-state dispute settlement ("ISDS"). If the investor is successful, the arbitral tribunal will require the host state to compensate the investor. These awards of compensation can be enforced internationally through associated regimes for the recognition and enforcement of arbitral awards.