Challenges of digital environment for international investment agreements

The article attempts to critically examine the challenges that digital assets and digitalisation bring to “pre-digital” International Investment Law and investor-state dispute settlement system. It is of a research interest to examine how the provisions of the current international investment-treaties (IIAs), with their core epistemology, including the concepts of protected investor/investment the territorial application, can apply to digital space. This viewpoint is explained by the fact that the majority IIAs are “pre-digital” and are, in principle, not designed to address the challenges of the digital era. The argument is advanced that the IIAs’ defined concepts, especially those related to the recent generation of IIAs, can be constructed to include investments in via digital assets, particularly when applying the non-restrictive interpretation of the territorial jurisdiction with regards to such key concepts for the settlement of investment disputes as investment/investor/recipient state. Despite the proposed hypothesis, the author is of the opinion that a prudence is required when introducing digital assets into the new IIAs’ scope of application, as this action gives rise to yet unresolvable conceptual and procedural controversies and may result in a potential increase of disputes at a time when the legitimacy and the efficiency of the existing framework for investor-state dispute settlement and the need for its radical reform remains at the forefront of the agenda of the investment actors.