Applying the Full Protection and Security Standard of International Investment Law to Digital Assets

This article considers the possibility that digital assets of foreign investors such as websites and computer systems could be protected by the full protection and security (‘FPS’) standard common to many bilateral investment treaties. Such assets can properly be described as investments and the flexible nature of the FPS standard observed in recent arbitration practice could be extended to cover civil disturbances such as 'cyber attacks' against companies. The article considers host state liability with respect to the prevention of harm to digital assets as well as failure to enforce laws that prohibit it. The lack of governmental control over websites suggests that it would be difficult to ascribe state liability under an FPS clause, except possibly in situations of large scale internet infrastructure collapse. A duty to prosecute attacks against digital assets, while common to many jurisdictions and seen in international instruments, is inappropriate as an investment treaty claim because of difficulties in compensation. The FPS standard further appears to incorporate a degree of contextual proportionality linked to the host state’s resources and this may prevent successful claims against Developing States where many cyber attacks occur

Investment Disputes \u3cem\u3eOltre lo Stato\u3c/em\u3e: On Global Administrative Law, and Fair and Equitable Treatment

Global Administrative Law is an academic project that attempts to describe the emergence of a regulatory space beyond the state and to prescribe solutions to the problems it diagnoses through certain normative principles like participation, transparency, reasoned decision-making, judicial review, accountability, proportionality, and legitimate expectations. In the case of investment treaty arbitration, the principles advanced by Global Administrative Law are akin to the constitutive elements of the fair and equitable treatment that international arbitral tribunals have identified in investor-state disputes. As classified by international law scholars, these constitutive elements of fair and equitable treatment include due process, arbitrariness, non-discrimination, vigilance, legitimate expectations, stability and predictability, transparency, good faith, and proportionality. Incidentally, some of these principles have found conventional support in state practice. This Essay answers the question of whether this dogmatic similarity is a mere coincidence or proof of the influence exerted by the tenets of Global Administrative Law over the way the fair and equitable treatment clause has been construed. For that purpose, it briefly explains Global Administrative Law, its approach to investment treaty arbitration, and the fair and equitable treatment standard of international investment law

Not hot enough: cooling-off periods and the recent developments under the Energy Charter Treaty

Cooling-off provisions in international investment agreements guarantee that investors and host States resolve their disputes in the most efficient manner. Aimed at offering the parties the opportunity to amicably settle their differences, cooling-off provisions remain a controversial issue in the jurisprudence on international arbitral tribunals. Arbitral tribunals are still split between considering the cooling-off provision as a procedural requirement or as an admissibility or jurisdictional requirement. Each of these positions triggers different practical consequences, with serious outcomes for the arbitral process.This note addresses the latest developments concerning the cooling-off provision under one international investment agreement–the Energy Charter Treaty

National treatment in emerging market investment treaties

This article considers the national treatment standard in international investment agreements as implemented by emerging market countries. It briefly explains the nature and purpose of the standard and how it has been examined by international investment tribunals. Specific examples of national treatment provisions in emerging market international investment treaties as well as WTO instruments are discussed, focusing the scope and limitations to this standard commonly provided in treaty practice. The associated issue of performance requirements is then considered. The article concludes that whereas the national treatment standard is found in most but not all emerging market investment treaties, it is often limited by scope or application, although a trend towards greater liberalization is noted

The Protection of Energy Investments under Umbrella Clauses in Bilateral Investment Treaties: A Myth or a Reality?

This paper examines the effectiveness or otherwise of the protection of energy investments granted by the umbrella clause provisions of bilateral investment treaties. It seeks to justify the reality that energy investments made by foreign investors are not always assured of protection in the host state and to dispel the myth that once the “umbrella clause” exists in the Bilateral Investment Treaty (BIT) of the host state and the foreign investor’s country, that the investment is automatically protected under the host state’s protective umbrella. This line of argument is reinforced by the fact that many States, mostly developing countries, enjoy significant flexibility to exit the BIT system when they come to realisations that the BITs they signed where they made the binding commitments to investors were undesirable. The paper thus further examines the purports and challenges of the protection supposedly granted to energy investments through the umbrella clause by dispelling the myth and reinforcing the reality of the lack of protection of energy investments despite the provision of the umbrella clauses. It concludes by making a set of recommendations that could help in securing the protection of energy investments made by foreign companies in host countries. Keywords: Energy, Investments, BITs, Umbrella clauses, host states, protection

A Contractual Approach to Investor-State Regulatory Disputes

International investment arbitral tribunals are increasingly tasked with resolving regulatory disputes. This relatively new form of dispute involves a challenge by a foreign investor to a host state’s generally applicable regulation, enacted in good faith to promote the public interest but resulting incidentally in harm to the investor’s business. Such claims typically invoke the “fair and equitable treatment” standard provided for in the bilateral investment treaty between the host state and the investor’s home state. The dominant view among commentators, and increasingly among the tribunals themselves, is that regulatory disputes should be analyzed within a public law framework, using tools derived from constitutional or administrative law. That means, for example, balancing the investor’s rights and host state’s regulatory concerns as part of a proportionality analysis. I argue that the public law approach is flawed because it requires tribunals to weigh incommensurable values and ultimately to make policy judgments when they lack the expertise and legitimacy to do so. This Article proposes that tribunals instead draw on tools from contract law and theory to approximate what the contracting states intended when they agreed to a fair and equitable treatment standard. The investment treaties themselves give no guidance on how that standard should be applied to regulatory disputes. When courts confront similar gaps in contracts, they do not simply abandon the inquiry into the parties’ intent but instead apply additional tools or principles to form the best possible estimate. The Article explores three specific tools: a default rule approach and two default standards derived from contract law’s analysis of changed circumstances. More generally, I argue that a contractual approach, by focusing tribunals on the contracting states’ intent rather than requiring them to independently assess the substance of a host state’s policy, will facilitate more principled reasoning as well as enhance the tribunals’ legitimacy, and thereby better promote the goals of international investment in the long run