The Necessity, Public Interest, and Proportionality in International Investment Law: A Comparative Analysis

This article deals with relations of the three concepts of international investment law which can be enumerated as “necessity,” “public interest,” and “proportionality.” These three concepts have been reviewed in the light of the relevant investment tribunals’ decisions and judgments of other international judicial bodies. In democratic governments, legal acts and actions must be based on the “public interest.” However, the “public interest” does not constitute by itself a determinative factor for lawfulness. The proportionality principle has a significant role in the investment arbitrations concerning whether the “public interest” aim is met. Albeit those inferences, the “public interest” claim is not a magic key which opens all doors. Because even if such a claim is asserted, it will be insufficient when some governmental actions are pursued to protect vital interests of the State. Hence, “state of necessity” always has been retained on the agenda of international law. Therefore, the customary law had developed stringent requirements for meeting the conditions of “necessity.