Revisiting the Notion of Full Protection and Security of Foreign Direct Investments in Post-Gadhafi Libya: Two Governments, Tribal Violence, Militias, and Plenty More

Authors

Nasser Alreshaid

Abstract

This Article touches on crucial element of the very survival of foreign investments in today’s Libya, precisely oil concessions, which is the full protection and security of these “investments.” With that being said, there have been other situations where the investors in investor-state relationships have engaged in activities within hostile environments. Nonetheless, the current situation in Libya poses somewhat different challenges.

Post-Gadhafi Libya has become fragmented and is ruled by multiple militias, despite the fact that it has been touted as a two-government state, as shall be explained later on. Widespread and intensified violence has also been the theme in this post-conflict period, in fact, the conflict is ongoing. Oil terminals have been directly targeted with violent acts for various reasons, and current de facto sterile state institutions cannot control the situation.

This Article attempts to identify how the notion of full protection and security can support foreign investors’ claims in situations like this. Although there are different functioning governments and militias, there are nevertheless doctrines that would protect this notion in the form of the law of the occupant as well as well-defined Bilateral Investment Agreements (BITs) that tease the question of which government bears responsibility. Part II explains the current situation in Libya after the collapse of the Gadhafi regime. Following that, Part III displays how the notion of full protection and security has functioned within previous legal doctrines and jurisprudence. Lastly, Part IV applies the different legal doctrines to the post-Gadhafi period, discussing the Articles on the Responsibility of the State for Internationally Wrongful Acts, and the exceptions that may be pleaded, including force majeure and necessity in relation to the laws on jus in bello. Finally, where political risk insurance could also play a role in safeguarding these investments.

Recommended Citation

Alreshaid, Nasser (2021) "Revisiting the Notion of Full Protection and Security of Foreign Direct Investments in Post-Gadhafi Libya: Two Governments, Tribal Violence, Militias, and Plenty More," Florida Journal of International Law: Vol. 28: Iss. 1, Article 2.
Available at: https://scholarship.law.ufl.edu/fjil/vol28/iss1/2