Approches to investment protection outside of specific international investment agreements and investor-state settlement

Bilateral Investments Treaties are currently the main instrument of protection for foreign investors. There are, however, other types of treaties relevant for ensuring definite rights to foreign investors even if not focused on investment protection, most of them predating BITs. This is the case of treaties of Friendship, Commerce and Navigation (FCNs) typically entered into by the U.S.A., or Consular and Establishment treaties, some of them going back to the XIX century. Their relevance appears to be residual in comparison with the elaborate substantive and procedural provisions of BITs, on the other hand since many of these treaties are still in force, often between countries which are not bound by reciprocal BITs, they may still be of value, as confirmed by various recent cases in which they were resorted to through diplomatic protection by the home countries of aggrieved investors as the sole available international means of redress. Another avenue, distinct from invocation of the BIT by a protected foreign investor itself through direct arbitration against the host State, is its invocation by the home country in diplomatic protection of aggrieved national investors against the host country in a State to State arbitration. This is provided in BITs but rarely resorted to. On such case is a recent dispute between Italy and Cuba, where Italy espoused the claims of several Italian investors against Cuba in direct State-to-State arbitration pursuant to art. 10 of the BIT of 1993 between the two countries. A common feature to all these different avenues is the resort to diplomatic protection of aggrieved investors by their home State against the host State, whether a claim is pursued by diplomatic means as was the case of the Italian- Swiss dispute of 1991-1992, or by adjudication, such as in the ELSI case. Through the examination of the treaty provisions invoked in the above mentioned cases, of the procedural features of each of them and of the outcomes the chapter intends to contribute to a better understanding of available options and their respective value, highlighting the differences from recourse to direct arbitration by the foreign investor concerned under a BIT.