Treaty Standards: Part 1 Comparative Public Law –

Transcript:Treaty Standards: Part 1 Comparative Public Law –:
Treaty Standards: Part 1 Comparative Public Law – Module 5 DEBORSHI BARAT 1. FULL PROTECTION AND SECURITY The ‘FPS’ Standard Common clause in investment treaties: “full protection and security” Variations: “constant protection and security” “protection and security” “physical protection and security” INTRODUCTION The clause is usually kept vague NAFTA, Art. 1105(1): “shall accord to investments of another Party treatment in accordance with international law, including fair and equitable treatment and full protection and security” Interpretation*: Article 1105(1) reflects the CIL minimum standard and does not require treatment in addition to or beyond that which is required by the CIL standard of aliens Question: What Is Security? How Is It Defined? Debate includes application beyond physical protection INTRODUCTION (contd.) The FPS standard relates to the physical protection of the investor and their assets A number of tribunals have assumed that this standard applies exclusively or preponderantly to physical security and to the host state’s duty to protect the investor against violence directed at persons and property stemming from state organs or private parties Rumeli v. Kazakhstan: “…protection to foreign investment from physical damage” PHYSICAL SECURITY Saluka v. the Czech Republic: Applies essentially when foreign investment has been affected by civil strife and physical violence NOT meant to cover any impairment of an investor’s investment but to protect, more specifically, the physical integrity of an investment against interference by the use of force PHYSICAL SECURITY (CONTD.) Eastern Sugar v. the Czech Republic: The tribunal suggested that the standard protected investors against violence stemming from third parties Such as mobs, insurgents, rented thugs and others engaged in physical violence against the investor in violation of the state monopoly of physical force Thus, when a host state fails to grant FPS, it fails to act to prevent actions by third parties that need to be prevented PHYSICAL SECURITY (CONTD.) PROTECTION A/G PRIVATE VIOLENCE Wena Hotels v. Egypt: Involved the forcible seizure of two hotels by the employees of a state entity (EHC) with whom the investor had contractual relations Government officials did not participate in the forcible seizure, but the police and other authorities took no effective measures to prevent or redress the seizure The tribunal held that Egypt had violated its obligation u/ FPS Held that Egypt was aware of the intentions to seize the hotels and took no action to prevent EHC from doing so In addition, the police and the competent