Law Commons^™

Of All Things Made In America Why Are We Exporting The Penn Central Test?, Anthony B. Sanders

Anthony B Sanders

Developing countries enter into bilateral investment treaties (BITs) in order to increase foreign direct investment (FDI). Ignoring this straight forward fact has lead to a great deal of confusion in the assessment of BITs and their protection of regulatory takings. This Article addresses the question of how a BIT should approach regulatory takings with the purpose of increasing FDI in mind. It explores the background of the United States Supreme Court’s Penn Central test and the test’s incorporation into the post-NAFTA round of U.S. BITs. Then, the Article examines whether an uncertain and flexible test such as Penn Central is …