Applying the Full Protection and Security Standard of International Investment Law to Digital Assets

Proposes that foreign investors’ digital assets including their websites and computer systems be protected by full protection and security (FPS) standards common to bilateral investments treaties. In order to cover civil disturbances such as cyber attacks within the private sector. Considers host state liability and failure of legal enforcement to prevent harm to digital assets. Lack of governmental control makes it difficult to ascribe state liability under an FPS clause as a duty to prosecute cyber attacks is inappropriate as an investment treaty claim. The FPS standard incorporates contextual proportionality preventing successful claims against developing states, which are most vulnerable to cyber attacks. Defines the phrase Full Protection and Security (FPS) as a “standard of protection for foreign investments that provides security against physical damage that may occur to a foreign investors’ property arising from war or civil unrest in the host state.” Reviews: digital assets as investments, the FPS standard elaborated (in conjunction with the Fair and Equitable Treatment standard), the content of the FPS standard, leading arbitration decisions on FPS (AMT v. Zaire, Asian Agricultural Products v. Sri Lanka, Noble Ventures v. Romania, Azurix v. Argentina, and Pantechniki v. Albania), cyber attacks as civil disturbances, host state liability under an FPS obligation, obligation to detect and prosecute cyber criminals, and developing states and the FPS standard.