This guide examines the mechanisms that exist to protect foreign investors and also examines how investment disputes are resolved. (b) the existence of a dispute arising from an investment between a contracting state of ICSID1 and a national of another contracting state of ICSID. However, another court held that a safeguard clause in another investment contract would not make sense if it did not lead to the infringement in question at a breach of contract.3 Can mere participation in an offer in another country be considered an “investment” and be covered by an ILO? How about profit expectations or risk-taking? Sornarajah explains that the ILO`s tendency is to extend the scope of the definition of foreign investment to more than the simple establishment of branches. However, each ILO sets different guidelines and these problems need to be resolved on a case-by-case basis. Unlike in trade in goods and services, there is not a single multilateral investment protection agreement. On the other hand, states have bilateral or multilateral investment contracts (ILOs or MIT) that protect individuals or companies in one country that invest in another country. Although the text of these treaties is different, it was governmental to include similar standards in all agreements. On the website of the United Nations Conference on Trade and Development (UNCTAD), bilateral investment agreements are defined as “agreements between two countries to promote, encourage and protect investment in the other country`s territories by companies based in both countries.” The organization provides an in-depth search engine on this website to access the agreements currently in force. These are called “Salini criteria.” Since the Salini criteria were proposed, ICSID`s arbitration tribunals have adopted a general approach to a more flexible definition of investment.5 In one case6, an ICSID tribunal found that the salini criteria should be supplemented by two additional tests: contracts often require host countries to extend fair and equitable treatment to investors. This prevents host countries from taking arbitrary, grossly unfair or discriminatory measures against foreign investment. Extending fair and fair treatment to investors under investment contracts is in fact a catch-all protection and is therefore often cited in investment contract applications. The EVIPA covers investment protection, which prohibits discriminatory treatment and expropriation without compensation. EVIPA also grants rights to investors: fair and equitable treatment, total protection and security, transfers and compensation for national treatment for certain losses suffered by armed conflict or a national emergency.
The definition of “investor” gives rise to the potential for a forum purchase by an investor. In this case, an investor includes a company in a specific jurisdiction in order to obtain the protection of an investment instrument. One example would be that a British investor invested in the United States through an Egyptian company to obtain ILO protection between the United States and Egypt. Umbrella clauses play a role here. A safeguard clause is the case when a host Member State confirms in a contract that it is complying with all legal commitments it has made with foreign investors or with regard to their investments.