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43 Mich. J. Int'l L. 595 (2022)
Litigating Terror in the Sinai after the Egyptian Spring Revolution: Should States Be Liable to Foreign Investors for Failure to Prevent Terrorist Attacks?

handle is hein.journals/mjil43 and id is 613 raw text is: LITIGATING TERROR IN THE SINAI AFTER THE EGYPTIAN SPRING REVOLUTION: SHOULD STATES BE LIABLE TO FOREIGN INVESTORS FOR FAILURE TO PREVENT TERRORIST ATTACKS? Robert Howse and Amin R. Yacoub * ABSTRACT The ambiguity of the due diligence standard of the Full Protection and Security obligation in investment treaties persists to this day. A recent ICSID tribunal found a developing state liable for breaching the Full Protection and Security obligation due to its inability to protect a foreign investment against terrorist attacks in a remote deserted area. In this article, we analytically criticize the Ampal v. Egypt arbitral award against the comprehensive factual matrix behind the case. Based on our criticism of Ampal, we argue that developing states should not be liable for failing to prevent or stop terrorist attacks under the Full Protection and Security obligation when they exert efforts relevant to their limited capacity to offer such protection. Further, we argue that investors should also optimize political risk insurance offered by the Multilateral Invest- ment Guarantee Agency when they choose to invest in a host state that might be vulnerable to terrorist attacks, might face potential insurgencies, or suffer from political turmoil. Finally, we highlight the importance of integrating other subfields of international law - such as international human rights law - to the international invest- ment arbitration system, especially in defining what acts or omis- sions are required of a host state to fulfill the due diligence standard of the Full Protection and Security Obligation. * Lloyd C. Nelson Professor of International Law, New York University. Howse is grateful for comments by participants at the Colloquium on Investment Law and Armed Con- flict, University of Athens Oct. 5 2017, where an early version of this paper was presented, especially the helpful suggestions of Ira Ryk Lahkman and Tomer Broude. Howse is also deeply appreciative of participants at a session of the Investment Law and Policy Workshop, University College London, especially Lauge Poulsen and at the University of Haifa, especial- ly Itamar Mann. SJD Candidate at University of Virginia School of Law; Prosecutor at the Egyptian Public Prosecution Office; International lawyer (NY and Egypt); LLM in Interna- tional Legal Studies, NYU School of Law (2018); LLB with High Distinction, Cairo Universi- ty, Faculty of Law English Section (2015); Post-Graduate Diploma in Public Law, Faculty of Law, Cairo University (2017). 595