Sorry, I don't follow. He's an expert lawyer in the field, his firm often represents governments in these actions, and he's saying that the wording doesn't protect those governments as much as they think it does and providing a very simple and clear reason for his position. Whether or not he might be biased in a courtroom or tribunal does not affect the validity of his argument about the wording.
You apply for a very costly permit, and boom, that sector has just been banned by the State, because irrational fear.
Well, that "irrational fear" followed the incident at Fukushima. That was the worst nuclear disaster since Chernobyl, and although it's too early to know the true cost in human life, most estimates expect several thousand people to die early because of evacuation conditions, cancers caused by radiation exposure, and so on. Evidently some level of concern about the safety of nuclear reactors is justified.
The question is where to draw the line. If in fact the Vattenfall reactors in Germany were not vulnerable to any similar problems and they really were closed down suddenly despite posing no risk, it seems fair that they should receive some reasonable level of compensation. On the other hand, in a case like the cigarette firms we talked about before, imposing laws that benefit human health at the expense of the business because what the business does is inherently harmful and they know it, I have little sympathy if the business loses out even if it was a direct result of the government's actions.
One could reasonably debate the forum in which such determinations might be made. However, the idea that an entire case with potentially billions of pounds of taxpayers' money hanging in the balance could sensibly be decided by just three people, behind closed doors, without any means of appeal, seems absurd to me.
tl;dr arbitration tribunals ain't saints, but they seem much more sane, egalitarian and fair, than a host country's high court (which are usually ideologically biased either traditionally or after the current regime stuffs it full of its trustees)
I see little evidence of that here in the UK. The British government can and does lose big court cases all the time, and our judiciary is fiercely defensive of its independence from the government of the day. If a foreign investor isn't willing to trust the legal system of a host nation to act reasonably, perhaps they should be investing elsewhere anyway, because there are plenty of other ways to lose huge amounts of money in that case without any hostility from the host government itself.
