El riesgo regulatorio y sus límites

Abstract

The purpose of the doctoral thesis is to analyse the concept of regulatory risk (the risk associated with the modification or repeal of the current regulatory framework, which may have a positive or negative impact on the legal situations and relationships created or entered into according to it) and its limits. The analysis of the regulatory risk and its limits is carried out in this paper taking into consideration both its impact and its scope on the economic phenomenon of (direct) investment by both domestic investors -including those from EU Member States- and foreign investors. Investment, as an object of private property rights, is protected both by national legal systems and EU law (in respect of investments made on its territory) and by international human rights law or international investment law (customary or treaty law). These legal systems contemplate different standards of protection and investor-state dispute settlement mechanisms and regulate in different ways the relationship between the protection to be afforded to those rights and the power of the public authorities to modify the legal system in force at the time when the investment was made. After defining the scope of the regulatory function which includes its establishment and enforcement (activities in which, respectively, the principles of good regulation and the role of independent regulatory authorities are of great importance), this thesis addresses the concept of regulatory risk in the field of investment and some of its most typical manifestations (i.e. modification of the regulatory conditions of access or the exercise of economic activities, including those with a contractual basis). The identification of the limits of regulatory risk starts by examining the protection of private property rights under constitutional law and international human rights law, and then goes on to analyse those specifically offered by: - International investment law, which protects foreign investors and their investments against indirect expropriations and measures having equivalent effect or in accordance with the standard of fair and equitable treatment, based on both customary international law and investments treaties. Particular reference is made to the doctrine established by arbitration tribunals entrusted with the resolution of disputes between foreign investors and states on, among other issues, the elements that make up this standard (in particular, the protection of investors' legitimate expectations) and the applicable exceptions (protection of human rights, the environment, health, employment and labour conditions or economic and social stability). - EU law which, in addition to protecting the right to private property, contains various guarantees for those who invest in the EU. - National law (specifically, Spanish law), which, in addition to proclaiming the principle of non-retroactivity of certain rules, provides for the expropriation guarantee and the liability of the administration and contains various principles that operate as limits to regulatory risk. The application of different legal systems that protect the same good (the investments) in different ways against the exercise by states of the regulatory function can lead to inconsistent or incoherent results, which this paper aims to identify. Their application can, on occasions, give rise to situations of discrimination based on the nationality of investors (reverse discrimination). This is precisely what happened when the Spanish authorities reformed the remuneration system for electricity production from renewable energy sources carried out between 2010 and 2013, which is analysed from the perspective of both Spanish (and EU) law and the Energy Charter Treaty. Finally, the thesis examines the interaction of the different investment protection legal systems, analyses their (actual or at least potential) influence on each other and outlines instruments and initiatives that could reduce the incoherencies and discriminatory situations resulting from their application.