Investor-State Dispute Settlement (ISDS) Series | Part 2: Full Protection and Security

Nigeria is party to 31 bilateral investment treaties, of which 14 are in force. Virtually all of them oblige the state to accord foreign investments full protection and security, an affirmative duty to take active measures against harm, whether that harm comes from third parties or from the state’s own agencies. Nigeria has already lost a claim brought under that standard.

The publication traces the interpretive divide between the traditional physical security reading and the broader reading extending to legal and regulatory stability, sets out the due diligence threshold that governs liability and distinguishes the standard from fair and equitable treatment and from expropriation.

Part 2 examines Nigeria’s record, contrasting the tribunal’s rejection of the claim in Interocean with its finding against Nigeria in Zhongshan Fucheng, where the conduct of state agencies toward the investor’s personnel was held to breach the continuous protection obligation.

This is a 5 part series. Part 3 will address the Fair and Equitable Treatment standard.