Abstract

In recent years the world community has witnessed the lack of balancing between the state duty to protect the foreign investors’ properties on one hand and public health on the other. Arbitral tribunals which are empowered to hear foreign investors’ claims against states have, on a number of occasions, created dilemma as to whether foreign investors’ obligations are superior over non-investment obligations including public health. Tribunals have failed to create a balance between these interests. This article argues that a host state has the duty to ensure that foreign investors’ lives and property are protected as much as it has the obligation to ensure that public health is not compromised at the expense of attracting foreign investments. It is submitted further that these two obligations are parallel and need to be addressed simultaneously. It is concluded in this paper that the current investor – state tribunals trend of giving foreign investors’ interests a priority over public health is wrong and there is a need for the tribunals to balance these two conflicting state obligations.

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