Volume 2, Nº 4 (2024)

The article discusses the notion of protection of foreign investments within the context of armed conflict. The author examines the provisions of bilateral investment treaties aimed at protecting investors in the situations of violence, as well as the substantive standards rooted in investment protection. The author also refers to the historical context behind the advent of the first investment treaties and the colonial nature that characterises the emergence of international investment law. The analysis focuses on the challenges commonly indicative of the applicability of investment agreements in armed conflict, which is further complicated by theweakness of the current international legal regulation and the insufficiency of existing provisions. The author argues that theregulatory framework for the protection of foreign investments is not only imperfect for regulating the protection of investments in the event of armed conflict but is also overly cautious with regard to the application of the principles of international humanitarian law to investment disputes. The author considers that the concept of investment protection should be reconciled with the concept of human rights, as well as with the interests of developing countries, since although investment is usually associated with economic stability, this discourse is inapplicable to developing countries, which are often negatively affected by both foreign investment itself and its protection, as the example of Colombia shows. Therefore, the article dwells on the fact that the effectiveness of protecting foreign investment, which is always based on the premise of peace, should be viewed through the prism of three lenses: the law of international treaties, international humanitarian law, and international human rights law. It is precisely on these three levels the author shows the interaction between the economic aims of investors who wish to safeguard their investments, the goals of governmental agencies, and the rights and interests of local communities and indigenous peoples.

The article examines the possibility and conditions for qualifying cyber-attacks on personal data as a military operation, an attack, and/or an armed conflict from the perspective of international humanitarian law (hereinafter — IHL). It is often personal data that is the target of a cyber-attack. In this context, potential legal qualification of a cyber-attack depends on whether and to what extent states recognise data as an “object” under IHL. In the absence of a specific treaty dealing with the application of IHL to the malicious use of information and communication technologies (hereinafter — ICTs), the main focus of the study is on the existing sources of IHL (Geneva Conventions, Additional Protocols, principles), customary international law as well as judicial decisions and legal teachings as subsidiary means for the determination of rules of law. Special attention is paid to the positions of the Russian Federation and the United States on the issue of the application of IHL to cybernetic activities. The author concludes that a cyber-attack on personal data can qualify as a military operation, an attack and a prerequisite for the outbreak of an armed conflict, and offers possible qualification criteria. At the same time, “stretching” jus in bello to the activities involving ICTs creates threats for the international community due to prospective militarisation of “cyberspace”.

The collection of taxes is one of the most important functions of a state. At the same time, taxation can present a significant challenge to fostering the investment appetite that is essential for state development. The tax regulations have historically been regarded as a significant impediment to investment, largely due to their inherent instability. Moreover, a detailed examination reveals that the tax and investment fields employ disparate terminology and are guided by conflicting objectives. It is therefore necessary to establish a balance in the resolution of disputes and the definition of the terminology used. In order to address the question of how tax law is interpreted and the issues that arise at the intersection with investment activities, the authors have conducted an analysis of doctrine, international and national legal sources and jurisprudence. The study presents a normative analysis of the controversial situations that arise when different branches of law intersect with one another, as well as proposed mechanisms to eliminate the problems arising from mutual interpretation of international tax and investment treaties.

The commentary points out the fundamental evidentiary issues, which the International Court of Justice would face soon deciding the case Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation) at the merits stage. The author believes that the burden of proof considerations are at the heart of the whole procedural picture of this unique inter-state dispute. The analysis shows that in this case, pursuant to the actori incumbit onus probandi principle (it is for the claimant to prove his claim), the burden of proof remains — as it should — with the Applicant (Ukraine) and should not be arbitrarily shifted to the Respondent (the Russian Federation). Ukraine’s primary access to direct evidence regarding the legal nature of its acts should also be taken into account when establishing the appropriate burden of proof.