Cryptocurrencies in International Investment Law: The Dawn of a New Era of Protected Investments under Article 25(1) of the ICSID Convention?
Cryptocurrencies in International Investment Law:
The Dawn of a New Era of Protected Investments under Article 25(1) of the ICSID Convention?
Gautam Mohanty and Hamidou Tangara
 
ABSTRACT: In January 2009, the first-ever cryptocurrency, i.e., Bitcoin, was launched. Since then, the market capitalization of cryptocurrency, as per reports, has grown to a billion-dollar industry ushering in the renaissance of the internet’s innovation. Inspite of the high usage of cryptocurrency, international law and particularly international investment law is silent regarding the impacts of cryptocurrencies on international trade and dispute resolution. While some tend to consider them as digital tokens and tradable assets, others consider them as a currency. In the traditional sense, international investment law governs the legal relationship between a foreign investor and a host state. Pertinently, the primary source of authority in international investment law are bilateral investment treaties (BITs) which impart necessary remedies to the foreign investor in case of any misconduct by the host state. Against the above backdrop, this article addresses the issue of contextualizing cryptocurrencies within the investor-state arbitration framework and determining whether disputes involving cryptocurrencies can be successfully tackled under international investment law. This article commences by ascertaining whether entities dealing with cryptocurrencies qualify as investors within the prevailing jurisprudence of international investment law and BITs. Thereafter, this article aims to determine whether cryptocurrencies qualify as investments under Article 25(1) of the ICSID Convention while juxtaposing it with the definition of ‘investment’ ascribed by the arbitral tribunal in the case of Salini v. Morocco.

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