The Protection of Crypto-Assets in International Investment Law.

This article examines the emerging intersection of international investment law (IIL) and crypto-assets, focusing on whether and how crypto-assets can qualify as protected investments under bilateral investment treaties (BITs). Using a hypothetical case of an investor bringing a treaty claim against a State for regulating a crypto-exchange, it explores the economic and legal characteristics of crypto-assets, emphasizing that only those assets contributing to an underlying value-generating enterprise—and territorially linked to the host State—should be protected. The article critiques the applicability of the Abaclat tribunal's "ultimate benefit" test for determining territoriality, advocating instead for private international law approaches to establish the situs of crypto-assets, which may depend on factors such as the owner's residence or the location of the crypto-exchange. It further distinguishes proprietary rights in crypto-assets from mere expectations of profit, noting that expropriation claims require interference with proprietary rights tied to the blockchain, while regulatory measures affecting trading platforms may give rise to fair and equitable treatment claims, whose success is uncertain given crypto's volatility.