New methods of doing international business, which have appeared in the process of digital transformation of economic and social life, have not gone unnoticed by a number of States that use tax and administrative methods to regulate them. One possible way to protect the interests of operators of digital business models from such regulation could be bringing claims against these States on the basis of bilateral and multilateral treaties for the promotion and protection of investments. Among the mandatory conditions for the presentation of such claims is the presence in the territory of a host State of protected “investments” within the meaning of an applicable treaty. This Article analyzes the meaning of the term “investment” in the pre-digital age as well as the exact content of the territorial link requirement with the host State. It describes four typical business models of the digital economy: (i) digital reseller; (ii) digital marketplace operator; (iii) search engine operator; and (iv) social network operator. It then analyzes the possibility of recognizing each business model’s intangible assets as “investments” for the purposes of investment treaties. It also identifies the shortcomings of the existing concept of “investment,” which was formed before the advent of the digital economy for the effective protection of digital assets and forecasts possible directions of development of existing arbitration practice to eliminate these shortcomings. The Article also identifies the emerging regulatory role of this concept in the digital era.
Dmitry A. Pentsov,
The Concept of “Investment” at the Dawn of the Digital Era,
Ga. J. Int’l & Compar. L.
Available at: https://digitalcommons.law.uga.edu/gjicl/vol51/iss1/5