Harry Blutstein
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Global Fifth Amendment
in The ascent of globalisation
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US legal scholar, Richard Epstein developed a radical legal doctrine of ‘regulatory takings,’ based on the Fifth Amendment of the US Constitution, which revolutionised intergovernmental and multilateral investment agreements around the world.

First applied to NAFTA, it established a radical precedent that allows corporations legal standing to take governments to independent investment tribunals. As a result, private firms were able to force judgements on nation states guilt of regulatory takings, including substantial damages for lost profits.

Unsuccessful attempts were made to include regulatory takings in two international treaties: the Trade Related Investment Measures and the Multilateral Agreement on Investment. They were defeated by opposition from development countries and activists.

Undeterred, supporters of the principle of regulatory takings had more success including NAFTA-type clauses into bilateral and multilateral investment agreements. These have provided unprecedented protection of foreign investment.

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