La tutela internazionale dei diritti contrattuali degli investitori esteri

Valeria Tonini XXII Ciclo International Protection of the Foreign Investors’ Contractual Rights ABSTRACT The aim of the research is to explore the possible ways under the general international law and international conventional law to protect the contractual rights that foreign investors alleged to be violated by the host States. Because of the new treaty based arbitration, the multilateral and bilateral investment treaties of the last twenty years helped to cut down the role of the diplomatic protection. The definition of investment played a prominent role in the research, in particular under the international conventional law: the wider is the meaning of the notion, the broader is the scope of the application of the treaties. International scholars and arbitral case-law tried to restrain the so called “asset based definitions” which are often included in the bilateral treaties; the several references to elements such as the risk and the contribution to economic development of the host State helped to limit the extension of the claims to performance pursuant to contract having an economic value. Under the international conventional law, there are two different kinds of clauses included in the investment treaties which provide for the protection of the contractual rights, first of all the umbrella clauses. The restrictive interpretation is based on the fact that it is impossible to transform the infringement of an internal obligation in an international unlawful act. Though this interpretation prevailed, it still can be rebutted in case the Parties of the treaty expressed their proper consent. Hence the use of the “effet utile” as method of interpretation is decisive in order to recognise the protection of the investors. Secondly, the evolution of the fair and equitable treatment has been interpreted as an obligation including the protection of the legitimate expectations, namely the ones concerning the continuity of the internal rules related to the investment which the individuals knew at the pre-investment stage. This triggers the natural reduction of the scope of application of the umbrella clauses, because it excludes the contractual obligations entered in by the State. The protection under general international law seems to pull for fewer expectations. On the one hand, though, it is possible to foreseen an evolution with regard to some very argued aspects: the state of necessity and the rule of prior exhaustion of the domestic remedies. The former concerns the extension of the notion of “essential interest”; the latter deals with the definitive erosion of the need of the prior exhaustion of remedies. On the other hand the effect of the new stabilization clauses which are now adopted in the investment contracts (the so called “equilibrium clauses”) could be granted by the application whether of the bona fide principle or of minimum standard treatment broadly interpreted. The relation between the minimum standard and the fair and equitable treatment is the key issue in order to foreseen a prominent position of the contractual obligation: the increased references to one of the criteria legitimating the investors’ expectations (the specificness of the obligation) allow to argue in favour of the extension of the scope of the fair and equitable treatment towards the contractual rights.