The Investment Treaty Arbitration Review: Full Protection and Security

I Introduction

Most international investment agreements in the modern era, including bilateral investment treaties (BITs), contain full protection and security (FPS) clauses.2 FPS clauses aim to protect investments from adverse effects incurred by third parties, or actions and inactions attributable to host states.3 FPS is concerned with failures by states to protect investors' properties from actual damage (or, on some occasions, harm to persons) caused either by state officials or by the actions of others, where the state has failed to exercise due diligence. It is thus principally concerned with the exercise of police power.4

Despite some shared understandings, tribunals are still divergent on specific issues surrounding the precise contours of the FPS standard in investor-state arbitration practice, in particular regarding whether the standard is limited to damage to physical property or whether it also requires the state to guarantee a secure legal environment (i.e., referred to as the 'physical versus legal' debate).5

This chapter begins with a two-pronged approach in interpreting specific duties and parameters of the FPS standard, followed by discussions of the standard of care and interrelationships between the FPS standard and the fair and equitable treatment (FET) standard, as well as with the customary international law.

II A two-pronged approach to the FPS standard

Tribunals have generally accepted that variations in FPS clauses do not 'make a significant difference in the level of protection a host State is to provide'.6 This applies even in cases where only the term 'protection' is used in the applicable treaty.7 Most tribunals agree that the FPS standard is mainly concerned with the physical integrity and security of the investment.8 The benchmark level of protection offered by a host state under the FPS standard generally refers to the fulfilment of its treaty obligation to take measures to protect foreign investors and investments from physical damage or adverse effects.9 To be specific, such a treaty obligation stems from two fundamental duties that shall be performed by the government of a host state, namely, the duty to prevent and the duty to prosecute, or, in practice, 'a duty of prevention and a duty of repression'.10

i Duty to prevent

Before an investment is impaired or adversely affected, the FPS standard essentially requires the authorities of a host state to have taken 'all measures of precaution'11 to prevent the investment from sustaining such kind of interference. Reasonable measures include diligent exercise of police power and other regulatory powers, the aim of which is to prevent damage caused by actions of third parties or authorities of the host state. In Eastern Sugar v. Czech Republic, the tribunal held that 'where a host state fails to grant full protection and security, it fails to prevent actions by third parties that it is required to prevent'.12

Moreover, a host state is not only under the duty to prevent actions by third parties but also obliged to prevent actions and omissions by 'organs and representatives of the State itself'.13 For example, in Wena Hotels v. Egypt, the tribunal held that Egypt violated the FPS obligation because, among other things, it did nothing to prevent the seizures undertaken by EHC, a company affiliated to the Egyptian tourism authority. Although Egypt was aware of EHC's intention to seize the hotels, its police force did nothing to protect the hotels and it did not immediately restore the hotels to the claimant's control.14 The tribunal further observed that the evidence on record did 'suggest a unity of interest between EHC and Egypt such that it is possible that Egypt might have authorized and participated in the seizures of the hotels'.15

Thus, the duty to prevent adverse or harmful actions by third parties and actions or omissions of a host state constitutes one of the two key prongs of the FPS standard. This constituent duty requires a host state to undertake 'all possible measures that could be reasonably expected to prevent the eventual occurrence' of damage to investors and investments, including but not limited to 'killings and property destructions',16 seizures of properties and investments,17 looting and burglary by armed forces,18 social opposing demonstrations,19 and so on. More specifically, the duty to prevent under the FPS imposes a two-tier obligation on the host state.20 On the one hand, the duty positively requires the host state to take active measures of precaution to preserve foreign investment; on the other hand, it obliges the host state to refrain from adopting adverse measures incurring or exacerbating economic loss to investors and their investment.21

In some investment treaties, such as the US-Uruguay BIT (2005), the FPS clause only requires 'each Party to provide the level of police protection required under customary international law'.22 In the view of tribunals, the scope of such an FPS clause is explicitly limited to the guarantee of physical security.23 However, for treaties in which such express language is missing or 'protection and security' is qualified by the adjective 'full', cases consistently indicate that the FPS extends beyond physical safeguards provided by police to legal security and other protective measures for investors and investments.24 As indicated by the Biwater tribunal, the FPS clause 'implies a State's guarantee of stability in a secure environment, both commercial and physical'.25 In Siemens v. Argentina, in which FPS was qualified by 'legal', the tribunal interpreted the FPS standard to contain the legal aspect of FPS (i.e., legal security), which was defined as 'the quality of the legal system which implies certainty in its norms and, consequently, their foreseeable application'.26 As a result, the duty to prevent under the FPS standard requires the host state to maintain and provide access to a well-administered legal system to foreign investors to achieve protection and security of their investment within the territory of the state.

ii Duty to prosecute

The second prong of the FPS standard refers to 'a positive obligation on a State to diligently prosecute those who have wrongfully injured an investor or its investment'.27 In Suez & InterAgua v. Argentina, the tribunal held that FPS 'may also include an obligation to provide adequate mechanisms and legal remedies for prosecuting the State organs or private parties responsible for the injury caused to the investor'.28 The tribunal in Electrabel v. Hungary also found that FPS under the Energy Charter Treaty includes the duty to provide 'the tools for obtaining redress (obligation of repression)'.29

To effectively fulfil the duty to prosecute under the FPS standard, the judicial and administrative authorities of a host state need first to identify wrongdoers through police investigation. Then, they shall provide investors with effective legal systems by which the host state may apply its domestic laws to prosecute and sanction the third party or the public organ causing the injury. Failure to do so may suggest the state's implicit approval of or support for the actions or omissions of wrongdoers.30

In the Wena Hotels case, in addition to Egypt's violation of its duty to prevent, the tribunal also found additional omissions or violations committed by Egypt after the seizures occurred, including the state's failure to impose substantial sanctions on the wrongdoer (EHC) or its senior officials who were responsible for the seizures, some of whom were promoted afterwards. The tribunal held that Egypt's failure to punish or prosecute EHC and its officials 'suggest that Egypt condoned EHC's actions'.31

In the Tecmed case, the claimant alleged that Mexico violated FPS because, among other things, the Mexican authorities, including the police and the judicial authorities, 'did not act as quickly, efficiently and thoroughly as they should have to avoid, prevent or put an end to the adverse social demonstrations'.32 This sets out a requirement for Mexico's administrative and judicial systems to not only effectively 'avoid and prevent' the harm but also to 'put an end' to the harm efficiently. In approaching this claim, the tribunal took a two-step analysis: first, 'whether municipal, state, or federal [authorities] have not reacted reasonably, in accordance with the parameters inherent in a democratic state' to the adverse social movement; and, second, whether the judicial system acted reasonably in relation to the efforts made to take actions against the same or to reverse or cure inconsistent administrative measures.33

Cases show that once injury or harm has occurred to the investment or the investor, the host state authorities, including the administration (e.g., police power) and judicial organs (e.g., prosecutorial and court systems), are obliged by the FPS standard to take immediate actions to diligently prosecute the perpetrators of the injury or 'put an end to' any other adverse interference. That is to say, the FPS obligation includes a second prong of duty to prosecute or punish, which imposes an obligation on the host state to diligently prosecute or punish those who have wrongly caused injury to the investment or the investor. As clearly illustrated by the El Paso tribunal, '[i]f a State fails to exercise due diligence to prevent or publish such injuries, it is responsible for this omission and is liable for the ensuring damage'.34

III Standard of care: due diligence – how full is full in FPS?

Most investor-state arbitration tribunals have followed the approach of denying a strict liability imposed by FPS. This means the FPS obligation neither creates nor imposes absolute liability on the host state.35 For example, in Saluka v. Czech Republic, the tribunal held that '[t]he standard does not imply strict liability of the host State'.36 This was also followed by the Tecmed tribunal, holding that 'the guarantee of full protection and security is not absolute and does not impose strict liability upon the State that grants it'.37

The FPS obligation is not an obligation of result either. The International Court of Justice in the ELSI case opined that the FPS standard 'cannot be construed as the giving of a warranty that property shall never in any circumstances be occupied or disturbed'.38 The Wena Hotels tribunal rejected the claimant's main argument that the FPS standard acted as a 'guarantee' or a sort of 'insurance' against the risk of investment being destroyed or the investor suffering losses because of the destruction.39 Following Wena Hotels, the Biwater tribunal recognised that the FPS duty in international law implies a duty of due diligence rather than an obligation to achieve a result.40

ICSID tribunals generally recognise that the FPS obligation under international law 'is one of “due diligence” and no more'.41 It obliges the host state only to 'exercise due diligence'42 and provide 'a certain level of protection and security to foreign investment'.43 The question is to what extent a host state must fulfil the duty of due diligence required by the FPS obligation under international law.

Only a few cases have alluded to the definition and scope of due diligence in the reasoning of awards in relation to the application of FPS to the facts of the case. The tribunal in AMT v. Zaire gave a description of 'due diligence', noting that, under the FPS standard, it is 'an objective obligation which must not be inferior to the minimum standard of vigilance and of care required by international law'.44 It further said that:

the obligation incumbent on [the host State] is an obligation of vigilance, in the sense that [the host State] shall take all measures necessary to ensure the full enjoyment of protection and security of its investments and should not be permitted to invoke its own legislation to detract from any such obligation.45

In other words, to demonstrate compliance with the FPS standard, the host state 'must show that it has taken all measure of precaution to protect the investments of [the investor] on its territory'.46 The tribunal in AAPL v. Sri Lanka opined that the host state's failure to take precautionary measures, which 'fell within the normal exercise of governmental inherent powers',47 violated the due diligence care level required by the FPS standard.48 The Biwater tribunal stated that 'a substantive failure to take reasonable, precautionary and prevention action is sufficient to engage the international responsibility of a State'.49 For all the aforesaid comments, just as with the obligation of good faith,50 '[t]he precise degree of care, of what is “reasonable” or “due”, depends in part on the circumstances' to be examined in each case.51

IV Interrelationships with FET and customary international law

i The interrelationship between FPS and FET

The interrelationship between these two standards has been a controversial issue in arbitral practice in that they seem to overlap under certain circumstances. Two mainstream groups of tribunals exist regarding the issue. One group believes that a finding of the violation of FPS automatically results in a breach of the FET standard and, occasionally, vice versa,52 whereas the other group does not accept this approach and insists that the FPS standard shall be separated from the FET standard as an independent standard of protection.53 However, in early cases in which the FET and FPS clauses were combined in the applicable treaties, many tribunals only contemplated whether host states breached the FPS clause without specifically addressing whether the FET standard had been violated in the meantime.54

As many arbitral tribunals have interpreted the FPS standard to extend beyond physical integrity and safeguards to legal, commercial and political security, the scope of FPS seems to overlap with the FET standard.55 It is not surprising, therefore, to see that some investment arbitration tribunals have equated FPS to FET, especially in terms of the due diligence obligation inherently required by these two standards.56 This understanding is still popular among tribunals in recent cases. For example, the UNCITRAL tribunal in AWG took the view that 'the concept of full protection and security is included within the concept of fair and equitable treatment, but that the scope of full protection and security is narrower than the fair and equitable treatment'.57 In the opinion of the OI European tribunal, FPS is considered 'a more specific type' of FET.58 Further, the tribunal in Occidental v. Ecuador considered that 'a treatment that is not fair and equitable automatically entails an absence of full protection and security'.59 In Rusoro v. Venezuela, the tribunal concurred with the Occidental tribunal that if the measures taken by the host state 'did not amount to a breach of the FET standard, consequently, such measures can never imply a breach of the FPS standard, however widely interpreted'.60

Despite the prevailing view of tribunals that the FPS and FET standards are largely overlapping, and the fact that they often appear together in investment treaties, the United Nations Conference on Trade and Development (UNCTAD) explains that 'it needs to be clarified that the two standards cover distinctive areas. FET deals with the process of administrative and judicial decision-making, while the [FPS] standard is usually understood as the obligation for the host State to adopt all reasonable measures to physically protect assets and property from threats or attacks by public officials or third parties'.61 This distinctive approach has been endorsed by some tribunals. For example, the tribunal in Suez & InterAguas v. Argentina was of the view that 'the stability of the business environment and legal security are more characteristic of the standard of fair and equitable treatment, while the full protection and security standard primarily seeks to protect investment from physical harm'.62 In Electrabel, the tribunal found that 'the FET standard and the FPS standard are two distinct standards of protection under the ECT, dealing with two different types of protection for foreign investors. . . . They must have, by application of the legal principle of “effet utile”, a different scope and role'.63 Having said that, some other tribunals might willingly acknowledge the differences between the FPS and the FET standards given by the UNCTAD, but still considered FPS a specific part of the more general FET.64

ii FPS linked with customary international law: a floor or a ceiling?

There is some controversy among the tribunals regarding 'whether the [FPS] treatment mandated by the [applicable treaty] is a more demanding standing than that prescribed by customary international law'.65 In Occidental, the London Court of International Arbitration tribunal held that the FPS standard (treated as equal to the FET) 'is not different from that required under international law . . . To this extent the [FPS] can be equated with that under international law'.66 In short, 'a minimum [FPS] must be equated with the treatment required under international law'.67

To address the standards linked with customary international law, some investment treaties expressly stipulate the parties' shared definitions of 'customary international law' and 'international minimum standard'. For example, Annex A to the US–Uruguay BIT (2005) provides that customary international law generally 'results from a general and consistent practice of States that they follow from a sense of legal obligation', while the international minimum standard of treatment 'refers to all customary international law principles that protect the economic rights and interests of aliens'.68 However, the scope of FPS linked to the two concepts needs be further explored by cases to set up a common guidance to tribunals and practitioners.

The AMT tribunal noted that the question of whether the host state violated the FPS obligation could be answered by reference to 'the practical criterion to determine the level of the precautionary measure to be taken by the receiving State consistent with the minimum standard recognized by international law'.69 As further elaborated by the tribunal in Azurix v. Argentina, the treatment accorded to investment under the FPS standard shall be no less than what is required by the international minimum under customary international law.70 As a consequence, it sets 'a floor, not a ceiling, in order to avoid a possible interpretation of these standards [FET and FPS] below what is required by international law'.71

V Conclusion

The FPS standard is an evolving standard of international investment law. While it generally obliges a host state to 'exercise due diligence' to avoid and prevent injury to an investor and its investment, and to diligently prosecute or punish perpetrators of the injury, the scope of protection (namely whether it should extend to legal security and even further) and its interrelationships with FET, as well as the customary international law, remain to be seen.


1 Ning Fei, Xueyu Yang and Mariana Zhong are partners and Zeyu Huang is an associate at Hui Zhong Law Firm.

2 Typical full protection and security (FPS) clauses would read: (1) 'Investments by investors of either Contracting State shall enjoy full protection and security in the territory of the other Contracting State' or (2) 'Investments of nationals or companies of either Contracting Party shall at all times be accorded fair and equitable treatment and shall enjoy full protection and security in the territory of the other Contracting Party' or (3) 'Each Party shall accord to covered investments treatment in accordance with applicable customary international law principles, including fair and equitable treatment and full protection and security.'

3 See Christoph Schreuer, 'Full Protection and Security', Journal of International Dispute Resolution, Vol. 1 Issue 2 (2010), at 353.

4 See Campbell McLachlan, Laurence Shore and Matthew Weiniger, International Investment Arbitration: Substantive Principles (Second Edition, Oxford University Press, 2017), para. 7.242 at 546.

5 See Sebastián Mantilla Blanco, Full Protection and Security in International Investment Law (Springer, 2019), at 270–79.

6 See Parkerings-Compagniet AS v. Republic of Lithuania, ICSID Case No. ARB/05/8, Award (11 Sep. 2007), para. 354.

7 See ibid. ('Article III of the Treaty only mentions the term protection. . . . The Arbitral Tribunal intends to apply the standard of “full protection and security”.') (original emphases). Also see, e.g., Lithuania–Norway BIT (1992), Article III and China-Singapore BIT (1985), Article 3.2.

8 See Josefa Sicard-Mirabal and Yves Derains, Introduction to Investor-State Arbitration (Kluwer Law International 2018), at 134.

9 See Schreuer, op. cit., note 3, above, at 353. Also see Rumeli Telekom A.S. and Telsim Mobil Telekomunikasyon Hizmetleri A.S. v. Republic of Kazakhstan (hereinafter Rumeli v. Kazakhstan), ICSID Case No. ARB/05/16, Award (29 Jul. 2008), para. 668.

10 See El Paso Energy International Company v. The Argentine Republic (El Paso v. Argentina), ICSID Case No. ARB/03/15, Award (31 Oct. 2011), para. 523.

11 See American Manufacturing & Trading, Inc. (AMT) v. Republic of Zaire (AMT v. Zaire), ICSID Case No. ARB/93/1, Award (21 Feb. 1997), para. 6.05.

12 See Eastern Sugar v. Czech Republic, SCC Case No. 088/2004, Partial Award (27 Mar. 2007), para. 203.

13 See Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania (Biwater v. Tanzania), ICSID Case No. ARB/05/22, Award (24 Jul. 2008), para. 730. See also AMT v. Zaire, op. cit., note 11, above, para. 6.08 (holding that 'Zaire has breached its obligation by taking no measure whatever that would serve to ensure the protection and security of the investment in question').

14 See Wena Hotels Ltd v. Arab Republic of Egypt (Wena Hotels v. Egypt), ICSID Case No. ARB/98/4, Award on Merits (8 Dec. 2000), paras. 82–84, 85.

15 See ibid, para. 85, fn. 198.

16 See Asian Agricultural Products Ltd v. Sri Lanka (AAPL v. Sri Lanka), ICSID Case No. ARB/87/3, Final Award (27 Jun. 1990), para. 85(B).

17 See Wena Hotels v. Egypt, op. cit., note 14, above, paras. 82–84.

18 See AMT v. Zaire, op. cit., note 11, above, para. 6.13.

19 See Técnicas Medioambientales Tecmed, S.A. v. The United Mexican States (Tecmed v. Mexico), ICSID Case No. ARB (AF)/00/2, Award (29 May 2003), para. 177.

20 See Sicard-Mirabal and Derains, op. cit. note 8, above, at 147.

21 See ibid.

22 See US–Uruguay BIT (2005), Article 5.2(b).

23 See Azurix Corp. v. The Argentine Republic (Azurix v. Argentina), ICSID Case No. ARB/01/12, Award (14 Jul. 2006), para. 408.

24 See ibid.; Siemens A.G. v. Argentine Republic (Siemens v. Argentina), ICSID Case No. ARB/02/8, Award (17 Jan. 2007), para. 303; Compañiá de Aguas del Aconquija S.A. and Vivendi Universal S.A. v. Argentine Republic, ICSID Case No. ARB/97/3, Award, 20 August 2007, para. 7.4.15.

25 See Biwater v. Tanzania, op. cit., note 13, above, para. 729.

26 See Siemens v. Argentina, op. cit., note 24, above, para. 303.

27 See Romesh Weeramantry, 'Full Protection and Security and Its Overlap with Fair and Equitable Treatment' in Julien Chaisse, Leïla Choukroune and Sufian Jusoh, Handbook of International Investment Law and Policy (Springer ,2021), at 348.

28 See Suez, Sociedad General de Aguas de Barcelona S.A., and InterAguas Servicios Integrales del Agua S.A. v. The Argentine Republic (Suez & InterAgua v. Argentina), ICSID Case No. ARB/03/17, Decision on Liability (30 Jul. 2010), para. 167.

29 See Electrabel S.A. v. Republic of Hungary (Electrabel v. Hungary), ICSID Case No. ARB/07/19, Award (25 Nov. 2015), para. 7.146.

30 See Wena Hotels v. Egypt, op. cit., note 14, above, para. 84, in which the tribunal considered that Egypt violated the FPS obligation because the state never imposed sanctions on a third party (EHC) or its senior officials for their seizures of hotels.

31 See Wena Hotels v. Egypt, op. cit., note 14, above, para. 94.

32 See Tecmed v. Mexico, op. cit., note 19, above, para. 175.

33 See Tecmed v. Mexico, op. cit., note 19, above, para. 177.

34 See El Paso v. Argentina, op. cit., note 10, above, para. 523.

35 See Spyridon Roussalis v. Romania, ICSID Case No. ARB/06/1, Award (7 Dec. 2011), para. 322; AAPL v. Sri Lanka, op. cit., note 16, above, paras. 48–50. See also Noble Ventures, Inc. v. Romania, ICSID Case No. ARB/01/11, Award (12 Oct. 2005), para. 164.

36 See Saluka Investments BV (The Netherlands) v. The Czech Republic (Saluka v. Czech Republic), UNCITRAL, Partial Award (17 Mar. 2006), para. 484.

37 See Tecmed v. Mexico, op. cit., note 19, above, para. 177.

38 See Elettronica Sicula S.P.A. (ELSI), Judgment, International Court of Justice Reports 1989, para. 108.

39 See Wena Hotels v. Egypt, op. cit., note 14, above, para. 45.

40 See Biwater v. Tanzania, op. cit., note 13, above, at 725.

41 See Rumeli v. Kazakhstan, op. cit., note 9, above, para. 668.

42 See Saluka v. Czech Republic, op. cit., note 36, above, para. 484.

43 See Rumeli v. Kazakhstan, op. cit., note 9, above, para. 668.

44 See AMT v. Zaire, op. cit., note 11, above, para. 6.06.

45 See ibid., para. 6.05.

46 See ibid.

47 See AAPL v. Sri Lanka, op. cit., note 16, above, para. 85(B) (such as 'to order undesirable persons out from security sensitive areas').

48 See ibid.

49 See Biwater v. Tanzania, op. cit., note 13, above, para. 725.

50 See UNCTAD, 'Investor-State Disputes Arising from Investment Treaties: A Review', UNCTAD Series on International Investment Policies for Development (United Nations, 2006), at 40–41, in which FPS is described as 'an obligation of good faith efforts to protect the foreign-owned property'.

51 See El Paso v. Argentina, op. cit., note 10, above, para. 523.

52 cf. AWG Group Ltd. v. The Argentine Republic (AWG v. Argentine), UNCITRAL, Decision on Liability (30 Jul. 2010), para. 171 (holding that 'State action that violates the full protection and security clause would of necessity constitute a violation of fair and equitable treatment under the French BIT. On the other hand, all violations of fair and equitable treatment are not automatically also violations of full protection and security . . . In short, there are actions that violate fair and equitable treatment that do not violate full protection and security.').

53 See August Reinisch and Christoph Schreuer, International Protection of Investments: The Substantive Standards (Cambridge University Press, 2020), at 358.

54 See ibid. For relevant cases, see AAPL v. Sri Lanka, op. cit., note 16, above, paras. 43, 47–51; AMT v. Zaire, op. cit., note 11, above, paras. 6.04–6.08; Wena Hotels v. Egypt, op. cit., note 14, above, para. 84.

55 See Enron Corporation and Ponderosa Assets, L.P. v. The Argentine Republic, ICSID Case No. ARB/01/3, Award (22 May 2007), para. 286; Suez & InterAguas v. Argentina, op. cit., note 28, above, para. 168.

56 See Reinisch and Schreuer, op. cit. note 53, above, at 358. For relevant cases, see Impregilo S.p.A. v. Argentina, Award (21 Jun. 2011), ICSID Case No. ARB/07/17, para. 334; OI European Group B.V. v. Bolivarian Republic of Venezuela (OI European v. Venezuela), ICSID Case No. ARB/11/25 Award (10 Mar. 2015), para. 576; Rusoro Mining Ltd. v. Bolivarian Republic of Venezuela (Rusoro v. Venezuela), ICSID Case No. ARB(AF)/12/5, Award (22 Aug. 2016), para. 548.

57 See AWG v. Argentine, op. cit., note 52, above, para. 171.

58 See OI European v. Venezuela, op. cit., note 56, above, para. 576.

59 See Occidental Exploration and Production Company v. Ecuador (Occidental v. Ecuador), Final Award, LCIA Case No. UN3467, 1 July 2004, para. 187.

60 See Rusoro v. Venezuela, op. cit., note 56, above, para. 548.

61 See UNCTAD, 'Fair and Equitable Treatment: A Sequel', UNCTAD Series on Issues in International Investment Agreements II (United Nations, 2012), at 36 note 2.

62 See Suez & InterAgua v. Argentina, op. cit., note 28, above, para. 167.

63 See Electrabel v. Hungary, op. cit., note 29, above, paras. 7.80, 7.83.

64 See OI European v. Venezuela, op. cit., note 56, above, para. 576, in which the tribunal noted the differences between the two standards, saying: 'Whereas the general classification [FET] covers acts that violate legal certainty, the specific type centers on physical security (FPS).' Nevertheless, the tribunal still held that the FPS only constitutes a specific type of FET.

65 See Occidental v. Ecuador, op. cit., note 59, above, para. 189.

66 See ibid., para. 190.

67 See ibid., para. 188.

68 See US–Uruguay BIT (2005), Annex A.

69 See AMT v. Zaire, op. cit., note 11, above, para. 6.07.

70 See Azurix v. Argentina, op. cit., note 23, above, para. 361.

71 See ibid.

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