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Full Protection and Security in International Investment Law

Full Protection and Security in International Investment Law

Author: Sebastian Mantilla Blanco
Publisher: Springer-Verlag
ISBN: 9783030248376
Published In: December 2019
Format: Hardback
Jurisdiction: Switzerland ? Disclaimer:
Countri(es) stated herein are used as reference only

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This book provides a comprehensive study of the standard of 'full protection and security' (FPS) in international investment law. Ever since the Germany-Pakistan BIT of 1959, almost every investment agreement has included an FPS clause. FPS claims refer to the most diverse factual settings, from terrorist attacks to measures concerning concession contracts. Still, the FPS standard has received far less scholarly attention than other obligations under international investment law. Filling that gap, this study examines the evolution of FPS from its medieval roots to the modern age, delimits the scope of FPS in customary international law, and analyzes the relationship between FPS and the concept of due diligence in the law of state responsibility. It additionally explores the interpretation and application of FPS clauses, drawing particular attention to the diverse wording used in investment treaties, the role ascribed to custom, and the interplay between FPS and other treaty-based standards.

Besides delivering a detailed analysis of the FPS standard, this book also serves as a guide to the relevant sources, providing an overview of numerous legal instruments, examples of state practice, arbitral decisions, and related academic publications about the standard.

Introduction

Part I: Formation of the Standard: The Long Path to Customary International Law

'Full Protection and Security' in Historical Perspective: The Challenge of the Sources

The Origins of 'Full Protection and Security'

From Medieval Reprisals to the Age of Enlightenment

A Battle of Gunboats and Books: 'Full Protection and Security' and the Minimum Standard of Treatment in Historical Perspective

The Calm After The Storm: 'Full Protection and Security' as an Element of the Minimum Standard of Treatment

Part II: Scope of the Customary Standard

Scope of Application of the Customary Standard: Conceptual Framework

Subjective Scope of Application of the Customary Standard of 'Full Protection and Security'

Objective Scope of Application: Protected Interests and Covered Risks

Objective Scope of Application: Irrelevance of the Distinction between Physical and Nonphysical Harm

The Temporal Scope of Application of the Customary Standard of 'Full Protection and Security'

Part III: Content of the Standard

The Characterization of the Obligation to Provide 'Full Protection and Security'

Due Diligence in the International Law of Aliens: Conceptual Framework

Due Diligence in the Context of 'Full Protection and Security' Claims

Part IV. Full Protection and Security Clauses in International Investment Agreements

Protection and Security Clauses in Investment Treaties: A Typology

'Full Protection and Security' Clauses and Other Treaty Provisions

Conclusion: The Night Watchman State

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