Assessing the Existence of a Violation of an Investment Treaty

This Chapter deals with the interpretation of relevant International Investment Agreements' (IIAs) provisions related to the treatment and protection of foreign investments. Following the establishment of jurisdiction, Investment Tribunals proceed to assess the merits of the case, examining whether there has been a violation of the applicable Investment Treaty. Asserted violations are assessed by ISDS tribunals against a series of standards of protection for foreign investors contained therein. In essence, IIAs standards of protection provide for specific obligations upon host States vis-à-vis foreign investors, namely: to provide fair and equitable treatment (FET), to abstain from illegal expropriation, and to avoid discrimination. Moreover, IIAs often provide for s.c. “Umbrella Clauses”, whereby the protections are extended to any other contractual arrangements stipulated between the host State and the investor. The present Chapter  investigates the interpretation and application of the above-mentioned standards of protection, as enshrined in IIAs, exploring their implications for sustainable development.