Abstract
In recent years the world community has witnessed the lack of balancing between the state duty to protect the foreign investors’ properties on one hand and public health on the other. Arbitral tribunals which are empowered to hear foreign investors’ claims against states have, on a number of occasions, created dilemma as to whether foreign investors’ obligations are superior over non-investment obligations including public health. Tribunals have failed to create a balance between these interests. This article argues that a host state has the duty to ensure that foreign investors’ lives and property are protected as much as it has the obligation to ensure that public health is not compromised at the expense of attracting foreign investments. It is submitted further that these two obligations are parallel and need to be addressed simultaneously. It is concluded in this paper that the current investor – state tribunals trend of giving foreign investors’ interests a priority over public health is wrong and there is a need for the tribunals to balance these two conflicting state obligations.
Highlights
It is a trite law that a host state has an obligation to ensure foreign investors’ lives and properties are dully protected.[1]
This article argues that a host state has the duty to ensure that foreign investors’ lives and property are protected as much as it has the obligation to ensure that public health is not compromised at the expense of attracting foreign investments
The Tanzanian Bilateral Investment Treaties (BITs) provide, among other things, for the obligation to compensate in case the investment is expropriated,[15] obligation to treat all foreign investment fairly and equitably,[16] obligation to ensure that all foreign investments are accorded protection and security[17] and the obligation to allow foreign investors to move capital and currency from one country to another.[18]
Summary
It is a trite law that a host state has an obligation to ensure foreign investors’ lives and properties are dully protected.[1]. The host state has the duty to ensure that it fulfil other international and national legal obligations. In recent years the world community has witnessed the lack of balance between the state duty to protect foreign investors’ properties on one hand and public health on the other. This article discusses and analyses the cases which have sparked the world community concerns. The first section discusses the legal framework on the host state obligation to protect foreign investment and foreigners under international and municipal law. The article analyses briefly cases on public health vs foreign investors’ rights which have sparked world attention. The fourth section discusses the parallel nature of state obligation to protect foreign investments and to regulate on public health. The fifth and last section provides the necessary recommendations and concludes the article
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