Originally from Investment Treaty Arbitration and International Law - Volume 8

I. INTRODUCTION

The position required of this paper is that international law affords full protection and security only to investments comprising “traditional physical property”. An analysis of this question, however, cannot be limited only to that particular treaty standard but requires a wider review of the term “investment” or “property”. Indeed, the existence of an investment is a jurisdictional matter whereas the full security and protection standard is dealt with at the later, merits stage of an investment treaty arbitration. As such, the subsequent process of deciding what sorts of assets should be afforded full protection and security should not and cannot be divorced from the more basic question of what should be considered an “investment”. As set out below, this interpretational requirement and the history of the full protection and security standard lead to the conclusion that the full protection and security standard should extend beyond physical property.

More generally, a review of pertinent sources demonstrates that the concepts of “property” or “investment” were never intended to be limited to “bricks-and-mortar” projects such as factories, motorways and other infrastructure ventures that might be considered “traditional physical property”. Rather, those responsible for drafting the relevant historical instruments giving rise to the current definition of “investment” ensured that they contained a definition of “property” or “investment” that was purposefully broad so as to include a wider scope of economic rights. To the extent commentators or tribunals have sought to limit the kinds of assets deserving of full protection and security, they appear to sometimes do so without regard to this broad underlying definition of “investment”. An inspection of the historical meaning and development of that expression serves to demonstrate that the correct position is that "investment" is a purposefully and necessarily broad expression.