4 Standards of Investment Protection

Subject(s):

Definition of investment — Investor — Treaties, interpretation — Treaty provisions

This chapter introduces the substantive obligations in investment treaties. Most offer a common core of six substantive protections to foreign investors. The chapter first considers the two ‘relative’ standards of protection—most-favoured nation treatment and national treatment. It then turns to four ‘absolute’ standards of protection: expropriation, fair and equitable treatment, umbrella clauses, and free transfer of funds. The third section examines carve-outs that remove certain state measures from the scope of application of investment treaties, defences that can justify or excuse breaches of investment treaty protections, and the standard of review that tribunals apply when examining host state conduct. The fourth and final section discusses the calculation of compensation or damages if host states have breached investment treaties.