Law Commons^™

Recovering "Protection And Security", George K. Foster

Vanderbilt Journal of Transnational Law

Among the most persistent controversies in international investment law is the nature of the "'protection and security" standard found in most investment treaties. Some tribunals contend that the standard requires nothing more than physical protection of covered investments, while others maintain that it requires legal security as well. Some insist that it is entirely distinct from the fair and equitable treatment standard that is often expressed in the same sentence or paragraph, while others effectively conflate the two standards. These conflicting decisions are undermining the legitimacy of investment treaty arbitration, but this Article seeks to resolve the controversies underlying them …