There are sound policy
reasons for offering non-profits protection under investment law: they ‘invest’
in a country, albeit not in an economic sense: many contribute to the
development and education of civil society, or to the grassroots implementation
of international norms and values such as democratic representation, free
speech or rights of vulnerable groups. However, most current investment
treaties do not clearly give jurisdiction to tribunals to adjudicate these
cases. This can be remedied through treaty amendment, as suggested in the model
clauses put forward in this paper. Even if the jurisdiction hurdle is cleared
and a non-profit is seen as a protected investor with a protected investment,
further problems await. First, difficulties might arise regarding the
application of most substantive investment protection standards. Secondly, it
is unclear how one could quantify damages with regard to non-profit activities.
Thirdly, investors seeking to enforce non-International Centre for the
Settlement of Investment Disputes (ICSID) awards or ICSID awards in states not
party to the ICSID Convention might find it difficult to rely on the New York
Convention. But more importantly, one could doubt whether investorstate
arbitration is the best forum for these disputes. In conclusion: not everything
that can be done, should be done.