Investor-state Dispute
Settlement (ISDS) is often viewed as a mechanism that only protects for-profit
corporations, to the exclusion of non-profit entities and other
non-governmental organizations (NGOs). While this assumption is reflected in
publicly-reported disputes to date – virtually all claimants in ISDS have been
for-profit entities – it has not been systematically examined in existing
scholarship. This article provides a comparative analysis of model and recent
investment treaties of major capital-exporting states to examine how they
define qualifying investors and investments. Contrary to conventional wisdom,
our study finds that many investment treaties, including those of United
States, Fance, and Germany use broad language to extend protection to
non-profit organizations and their activities. This finding challenges the
assumption underlying practice trends and the well-known Salini test
interpreting the ICSID Convention: that states intend to only protect
for-profit entities and activities in their investment treaties. The evidence
we present could open a new legal forum for non-profit organizations to
challenge state measures that restrict civic space utilizing international
investment law.