Part I The Concept of Expropriation, 3 Rights and Interests Protected Under Investment Treaties

Subject(s):

Investor — NAFTA (North American Free Trade Agreement) — Good faith

This chapter examines which rights and interests are protected as investments under investment treaties in the context of expropriation. It first considers the meaning of investment, taking into account the definitions given by investment treaties. Many bilateral investment treaties (BITs) identify a non-exhaustive list of assets that may comprise an investment, such as shares, stock, and other forms of equity participation in an enterprise; bonds, debentures, other debt instruments, and loans; futures, options, and other derivatives; and intellectual property rights. The NAFTA contains an exhaustive definition or what constitutes and does not constitute an investment. The chapter proceeds by discussing the relevance of property rights in national law, the test used in ICSID arbitrations to define investment, and the question of whether separate assets may be regarded as a single investment. Finally, it tackles the issue of whether goodwill and market share constitute an investment.