Samantha J. Rowe is an associate at Debevoise & Plimpton LLP. The author and her firm have been involved as counsel in several of the cases discussed herein. This article and associated panel discussion were prepared and presented solely for the purpose of the Ninth Annual Investment Treaty Arbitration Conference, hosted by Juris Conferences LLC, and present a topic and position which was assigned to the author. The article therefore reflects the author’s assigned position on the topic, and does not necessarily reflect her own views. In addition, the article also does not necessarily reflect the views of Debevoise & Plimpton LLP, its attorneys, or any of its clients. I am grateful for the assistance of Debevoise associates Angus Ni and Jorge Valencia, and summer associate Lara Dominguez, in the preparation of this chapter. Any errors contained herein are solely my responsibility.
Customary international law has long protected property rights held by foreigners from the internationally unlawful action of the host State. With the advent of bilateral, regional, and multilateral investment treaties (referred to herein as “BITs”), the focus has shifted away from property and towards “investment”:
In legal terms, investment regimes need to define their scope ratione materiae. Contemporary treaties do not, as a rule, reflect the classical formula ‘property, rights, and interests’ found in traditional friendship, commerce, and navigation (FCN) treaties, in treaties to settle claims after hostilities, or in human rights documents. Instead, they are built on the modern term ‘investment.’ This usage is now fully accepted, even though the phrase ‘property, rights and interests’ had to a considerable extent acquired a distinct legal meaning and the term ‘investment’ has its origin in economic terminology and needed to be understood and defined as a legal concept when first used in investment agreements.