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8 views4 pages

Bài 7

Uploaded by

thanhvinh511dav
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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21/06/2024

BẢO HỘ AN NINH
Trịnh Phương Thảo

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21/06/2024

Netherlands – Kazakhstan BIT (2002):

Article 3
1) Each Contracting Party shall ensure fair and equitable treatment of the investments
of nationals of the other Contracting Party and shall not impair, by unreasonable or
discriminatory measures, the operation, management, maintenance, use, enjoyment or
disposal thereof by those nationals. Each Contracting Party shall accord to such
investments full security and protection.

• Physical protection of the assets and individuals connected with an


investment.
• PLUS -The protection that the legal system affords in order to prevent
or prosecute actions that threaten or impair the physical safety of the
investment
• The availability of the judicial systems, and more abstract kind of
(legal) security
• OVERLAP with effective means, denial of justice, judicial
expropriation?

2
21/06/2024

• ‘investments shall be accorded fair and equitable treatment and shall


enjoy full protection and security’ - Article II 2(a) United Kingdom/Sri
Lanka BIT
• ‘investments shall enjoy full legal protection and full legal security’ -
Article 4(1) Germany/Argentina BIT
• However, arbitral practice does not seem to attach a significant
importance to the wording of the applicable treaty in the interpretation
of the obligation of granting full protection and security

• CIL as ceiling: ‘the obligation to provide full security and protection in


the NAFTA does not require a treatment in addition to or beyond that
which is required by the customary international law minimum
standard of treatment of aliens’ (Interpretative note issued to Article
1105(1) of the NAFTA by the Free Trade Commission in 2001)
• CIL as a floor: The clause, as drafted, permits to interpret fair and
equitable treatment and full protection and security as higher standards
than required by international law. The purpose of the third sentence is
to set a floor, not a ceiling, in order to avoid a possible interpretation
of these standards below what is required by international law. Azurix

3
21/06/2024

• The physical damage may be caused by the State, State organs or


otherwise be attributable to the State, or may be caused by third
parties.
• When the physical damage is due to third parties, arbitration practice
does not require causality to consider the State liable
• Why? Because the obligation is not to refrain from causing damage,
but to exercise due diligence, or take the necessary measures of
vigilance, in order to prevent damage

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