David Nikolaus Probst, 2012

INTERNATIONAL INVESTMENT AND POLITICAL VIOLENCE: THE LEGAL FRAMEWORK FOR THE PROTECTION OF INVESTMENT IN HIGH RISK ENVIRONMENTS

Languages spoken: German, English, French, Spanish
Thesis Advisor: Professor Jeswald Salacuse

David.Probst@tufts.edu

The recent turmoil in the Middle East and North African region especially accentuated one risk investors face in developing and emerging markets, namely, the risk of political violence. Increasingly, businesses abroad have to consider armed revolution, civil strife, war, and terrorism, which can result in the destruction of property and the interruption of business. Political violence may not only infringe the investor’s property rights, but may also thwart the attempts of developing countries to attract foreign investment to develop their economies.

Investors find protection against political violence mainly in international investment agreements (IIAs) and political risk insurances (PRIs). International arbitration tribunals have defined the scope of state responsibility for the destruction of property resulting from armed conflict under “full protection and security clauses” and “armed conflict clauses” of applicable IIAs. However, the occurrence of armed conflict can also provoke the suspension or cancellation of international treaties, or can create circumstances that justify a State’s wrongful conduct under principles such as “necessity” or “force majeure.” In addition, most political risk insurers offer insurance covering damages resulting from political violence. These can diverge in their scope of application, coverage, and subrogation mechanisms.

This thesis analyzes the different levels of protection under the provisions of IIAs and PRIs, and defines their scope of compensation and potential correlations. Further, it outlines the significance of the offered protection and its impact on the investment climate of affected countries.

Biography:

David Probst grew up in Southwestern Germany and received his first state examination in law from the University of Freiburg in 2011 with a specialization in European and International Legal and Economic Relations. He spent a year abroad at the University of Aix-en-Provence studying international law, interned with the corporate department of the international law firm Taylor Wessing in Berlin, and worked as a French teacher and as a lecturer for medical law. Prior to his arrival at Fletcher, he worked as a researcher with the Issam Fares Institute for Public Policy and International Affairs in Beirut, Lebanon, where he conducted interviews with high-ranking Lebanese politicians and drafted a case study on health policy-making in the Middle East. At Fletcher, he has focused on international business and investment law, international arbitration, and legal and economic aspects of the oil and gas industry. Further, he led a research project for the Harvard Law and International Development Society on the categorization of oil licensing regimes and related case studies on seventeen countries. David is interested in working as a lawyer in international arbitration practice with a law firm in Europe or abroad, but also considers working as a lawyer or analyst for an international organization or NGO with a focus on private sector development. He is currently Intern with the international arbitration department of Orrick, Herrington and Sutcliffe, LLP, in Paris, France. He will begin his legal clerkship in Berlin, Germany, in February, 2013.