Foreign investment
screening in national law has been proliferating and constantly evolving.
Several notable developments include the review of established investments,
retroactive application, and extraterritoriality. These new developments, which
have mostly taken place in the last decade, are contextualized by the
conclusion of international investment agreements (IIAs), the majority of which
precede the emergence of investment screening but are still in force today. As
a result, foreign investors may challenge a host state’s investment screening
measures through investor-state arbitration based on IIAs which provide
sweeping protection. This article takes an inventory of the notable
developments of investment screening in domestic law, identifies the potential
breaches of investment treaty obligations by investment screening measures, and
expounds on the non-conformity between the general principles of law and these
new developments of investment screening. Future reforms of both international
investment law and investment screening regimes are desired to attain more
congruity between the two.