Benatar & Schatz: The Protection of Foreign Investments in Disputed Maritime Areas

Marco Benatar (Vrije Universiteit Brussel) & Valentin Schatz (Univ. of Hamburg) have posted The Protection of Foreign Investments in Disputed Maritime Areas (in Investments in Conflict Zones: The Role of International Investment Law in Armed Conflicts, Disputed Territories, and ‘Frozen’ Conflicts, Sebastian Wuschka & Tobias Ackermann eds., forthcoming). Here's the abstract:

Where the rights of foreign investors are harmed in disputed maritime areas, the question arises whether these investors can invoke international investment agreements (IIAs) to seek redress. IIAs cover both bilateral investment treaties (BITs) and multilateral investment agreements (MIAs). BITs can be described as ‘reciprocal legal agreement[s] concluded between two sovereign States for the promotion and protection of investments by investors of the one State (“home State”) in the territory of the other State (“host State”)’. Reciprocal rules and protections of investments may also increasingly be found in multilateral agreements, which can be seen – at least from this perspective – as MIAs. IIAs are the primary instruments for the protection of foreign investments in international investment law. Typical provisions contained in IIAs include definitions of the notions of investment and investor, substantive protections of foreign investors (eg, concerning expropriation, fair and equitable treatment, full protection and security), and dispute settlement clauses (usually providing for both investor-state and state-to-state arbitration).

But do they apply to investments in disputed maritime areas? And if this is the case, can an arbitral tribunal established under an IIA’s dispute settlement clause make all findings of fact and law required to apply the IIA without exceeding the scope of its jurisdictional mandate?

This chapter seeks to answer these questions. In so doing, it will define the concept of ‘disputed maritime areas’ for present purposes (section 2). Next, it will address the spatial scope of IIAs as a matter of substantive law in relation to maritime areas generally and disputed maritime areas specifically (section 3). Thereafter, this chapter will turn to specific challenges of procedural law raised by investor-state dispute settlement in relation to investments in disputed maritime areas (section 4). An ensuing section will assess the different approaches investment tribunals could follow in dealing with the aforementioned challenges (section 5), followed by concluding remarks (section 6).