D'Sousa, Sara Nicola (2025) The protection of crypto-assets in international investment law. ICSID Review. ISSN 0258-3690
Full text not available from this repository.Abstract
The recent spate of regulatory intervention in the crypto-industry suggests it is only a matter of time before investment treaty claims concerning crypto-assets emerge. Crypto-assets today represent immense economic value, but many are traded for pure financial speculation. As such, there is clear tension between international investment law and the nature of these cryptocurrencies as assets capable of treaty protection. Several questions emerge: how can decentralised assets be localised in a State's territory? Can (and should) States be liable to protect investors holding speculative assets, with a remote economic contribution, from State regulation? Is international investment law equipped to address the challenges to the conventional boundaries of jurisdiction and merits that these assets will provoke? To answer these questions, this article envisages a hypothetical crypto-exchange on which crypto-assets are traded worldwide. A hypothetical investor seeks to bring a claim against a State for regulating the exchange, but their only ‘investment’ is the crypto-tokens hosted on the exchange. Through this hypothetical, the article explores the legal and economic materialisation of a crypto ‘investment’, and highlights its relevance for substantive questions of expropriation and fair and equitable treatment (FET). It also contends that traditionally flexible notions of ‘territory’ for financial instruments are unsuitable for crypto-assets, advocating a return to private international law instead. This article situates the immense potential of crypto-assets within the competing concerns of States’ newer investment treaties. Accordingly, it identifies the characteristics of value-generating crypto-assets that should be protected under international investment law.
| Item Type: | Article |
|---|---|
| Additional Information: | © 2025 The Author(s) |
| Divisions: | LSE |
| Subjects: | H Social Sciences > HG Finance K Law > K Law (General) |
| Date Deposited: | 20 Mar 2025 15:27 |
| Last Modified: | 20 Mar 2025 15:27 |
| URI: | http://eprints.lse.ac.uk/id/eprint/127611 |
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