One of the things that I wanted to talk about today is, of course, our shared values. […] And what I worry about is the threat from within, the retreat of Europe from some of its most fundamental values — values shared with the United States of America. […] I look to Brussels, where EU commissars warn citizens that they intend to shut down social media during times of civil unrest the moment they spot what they’ve judged to be, quote, ‘hateful content.’1US Vice President J.D. Vance, Speech at the Munich Security Conference 2025 (Feb. 14, 2025), in Munich Security Conference 2025: Speech by J.D. Vance and Selected Reactions (Benedikt Franke ed., 2025) (on file with Munich Security Conference), available at https://securityconference.org/en/publications/books/key-speeches-volume-ii-jd-vance-msc-2025/ (last visited Jan. 27, 2026).X1 

U.S. Vice President JD Vance’s statement at the 2025 Münich Security Conference frames the contemporary geopolitical climate in which freedom of speech is increasingly weaponized in debates over fundamental democratic values.  As a response to this, several European leaders, including Finland's President Alexander Stubb and German Chancellor Friedrich Merz, rejected Vance’s characterization of its policies and defended European jurisdictions' right to regulate disinformation and hate speech.2Id.X2 

This geopolitical exchange reflects the intensification of a broader global regulatory conflict over how democratic societies reconcile expressive freedom with accountability in an increasingly borderless digital economy. What began as a period of liberal regulation fostering rapid platform growth has given way to an era of heightened intervention. In consequence, the rise of digital media platforms has produced a complex intersection between freedom of speech and international investment law. Governments increasingly impose regulatory measures, ranging from content takedowns, speech controls and license revocations to extensive compliance obligations, that affect how media enterprises operate, monetize, and engage people across borders. These measures are often divergent across jurisdictions and administratively opaque, creating substantial uncertainty for foreign media investors. Investors may claim that abrupt or disproportionate state interventions frustrate legitimate expectations, or diminish the economic value of investments and intangible assets such as contracts, user agreements, or access to data.

Recent scholarship and arbitral practice indicate that treaty claims once grounded in constitutional or public law discourse could plausibly be advanced under investment protection standards such as fair and equitable treatment (FET) and indirect expropriation. While freedom of speech does not constitute a standalone source of rights under investment treaties, this article suggests that its normative weight within public international law can function as a contextual benchmark for assessing investment protection standards and claims.

This article presents how free speech-embedded human rights arguments can operate as a proxy within the interpretive framework of investment arbitration law.  By situating this question within the broader implications of new regional media regulations, legal scholarship, economic research, and arbitral precedent, the analysis illuminates the possibilities between sovereign regulatory authority and the protection of media investments in an increasingly volatile legal context.

Tribunals have scarcely confronted claims arising from the media or technology sectors, and occasionally investment protection standards have been interpreted broadly enough to encompass injuries to the media sector and related enterprises.1CME Czech Republic B.V. v. Czech Republic, UNCITRAL, Partial Award, para. 533 (Mar. 14, 2003); See CME Czech Republic B.V. v. Czech Republic, UNCITRAL, Final Award, paras. 490-615 (Mar. 14, 2003) (the tribunal found that the Czech media regulator (the Media Council) coerced amendments to the investor’s memorandum of association and supported termination of its service agreement in 1999, thereby undermining the investor’s legal position).X1  Human rights provisions can inform this analysis but are not self-executing in investment arbitration disputes, which largely has to do with the systemic nature of public international law.  As noted by the Eskosol tribunal regarding the organization of the international legal system:

it is useful to recall that the international legal system is a general system without any central authority from whom the entire system flows […] composed of different legal sub-systems which have independent life, even if at times there may be interactions between them.2Eskosol S.p.A. in liquidazione v. Italian Republic, ICSID Case No. ARB/15/50, Decision on Termination Request and Intra-EU Objection, para. 143 (May 7, 2019).X2 

Nevertheless, while rarely invoked successfully in investment arbitration, the right to freedom of speech may be supplemented by the principle of systemic integration codified in Article 31(3)(c) of the Vienna Convention on the Law of Treaties, and thus, constitutes a relevant rule of public international law that arbitral tribunals may be required to consider.3Thomas Dillon, The Human Right of Freedom of Expression in Investor State Arbitration, 40 J. INT’L ARB. 179, 192-93 (2023).X3  A clear expression of this interpretive approach appears in Urbaser v. Argentina, where the tribunal held:

[t]he BIT cannot be interpreted and applied in a vacuum. The Tribunal must certainly be mindful of the BIT’s special purpose as a Treaty promoting foreign investments, but it cannot do so without taking the relevant rules of international law into account. The BIT has to be construed in harmony with other rules of international law of which it forms part, including those relating to human rights.4Urbaser S.A. v. Argentina, ICSID Case No. ARB/07/26, Award, para. 1200 (Dec. 8, 2016).X4 

Dillon has developed this interpretive dynamic regarding investment arbitration in the media sector, arguing that although tribunals seldom treat human rights instruments as self-standing sources of investment obligations, many investment treaties through references to public international law principles implicitly incorporate such rights into the interpretive framework governing state conduct.5Dillon, supra note 5 at 192-201.X5  For example, Dillon demonstrates that human rights jurisprudence, e.g., under Article 13(3) of the American Convention or Article 10 ECHR and its analogues in other regional systems, creates a presumption in favor of the freedom to broadcast and a corresponding burden on states to justify refusals of broadcasting licenses on legitimate and proportionate grounds.6Dillon, supra note 5 at 185-91.X6  When a state denies or manipulates such licenses for political reasons, the resulting interference may therefore constitute unfair or inequitable treatment under the relevant treaty – not because the investor enjoys a freestanding human rights claim, but because human rights law supplies the normative baseline against which the fairness of state action is measured.7Dillon, supra note 5 at 187-89, 201.X7 

Therefore, Dillon makes clear that human rights norms can function in investment arbitration as contextual determinants of meaning rather than as independent causes of action.8Dillon, supra note 5 at 200-01.X8  They assist in defining the content of treaty standards such as fair and equitable treatment, legitimate expectations, and proportionality, without displacing the treaty’s autonomous structure.  As Dillon have noted, this interaction reflects an evolving “systemic integration” between investment law and other branches of public international law and that while investment tribunals are not human rights centered, they operate within the same normative universe and cannot adjudicate in isolation from it.9Dillon, supra note 5 at 187-89, 200-01.X9  Bollinger and Sauvant observes similarly that international investment arbitration law provides robust enforcement mechanisms that human rights treaties lack, making investment treaties an attractive vehicle for vindicating press freedoms that might otherwise go uncompensated.10Lee C. Bollinger and Karl P. Sauvant, How Investment Agreements Can Protect Free Media, Columbia Center on Sustainable Investment (July 2016), available at https://ccsi.columbia.edu/content/how-investment-agreements-can-protect-free-media (last visited Jan. 26, 2026).X10  Thus, human rights law contribute to the interpretation and substance of investor protection but not to its source.  Human rights can guide how investment treaty obligations are understood, yet remain incapable of grounding a claim in their own right.11Dillon, supra note 5 at 209-10.X11 

Investment treaties typically obligate host states to afford foreign investments a defined standard of protection.1RUDOLF DOLZER & CHRISTOPH SCHREUER, PRINCIPLES OF INTERNATIONAL INVESTMENT LAW 188 (2022); Cf. US DEP’T OF STATE, 2012 US Model Bilateral Investment Treaty, art. 5 & annex A (2012) (defining fair and equitable treatment and full protection and security as the customary international law minimum standard of treatment); Asia-Pacific Economic Cooperation (APEC), Handbook on Obligations in Investment Treaties, APEC Committee on Trade and Investment 24-51 (2019) (describing typical standards of protection found in modern IIAs).X1  Classic investment protection provisions guarantee fair and equitable treatment and full protection and security of covered investments and bar unjustified discrimination or illegal expropriation. Such provisions usually prohibit uncompensated expropriation of investments of both direct or indirect nature.2DOLZER & SCHREUER, supra note 14 at 190; APEC, supra note 14 at 28-39; Organization of Economic Cooperation and Development (OECD), “Fair” and “Equitable” Treatment Provisions in Investment Treaties: A Large-Sample Survey of Treaty Provisions 11 (OECD Working Papers on International Investment, April 12, 2023). X2  These protections are often phrased in economic terms, e.g., safeguarding investors’ legitimate expectations and freedom from “unreasonable or discriminatory measures” impairing their business, including taking into account business and regulatory risk.3Técnicas Medioambientales Tecmed S.A. v. Mexico, ICSID Case no. ARB(AF)/00/2, Award, para. 154 (May 29, 2003) (the tribunal held that the FET clause in the Spain-Mexico bilateral investment treaty (BIT) obliged the state to protect the “basic expectations that were taken into account by the foreign investor to make the investment”); MichaÅ‚ Krzykowski, MichaÅ‚ MariaÅ„ski and Jakub ZiÄ™ty, Principle of Reasonable and Legitimate Expectations in International Law as a Premise for Investments in the Energy Sector, 21 INT’L ENVTL. AGREEMENTS: POL., L. & ECON. 79 (2021).X3  Professor Krzykowski has underscored that “[t]he judgements of arbitration tribunals indicate that the notion of reasonable and legitimate expectations is relevant when the actions of a contracting party lead the investor to develop reasonable and legitimate expectations regarding the behavior of said party.”4Krzykowski, MariaÅ„ski & ZiÄ™ty, supra note 16 at 78.X4  Consistent with this reasoning, the tribunal in LG&E v. Argentina described the legal criteria of fair expectations having among others the following characteristics:  “[…] they are based on the conditions offered by the host state at the time of the investment […].”5LG&E Energy Corp., LG&E Capital Corp., and LG&E International, Inc. v. Argentine Republic, ICSID Case no. Arb/02/, Decision on Liability, para. 130 (Oct. 3, 2006).X5 

Notably, the tribunal emphasized the relevant baseline for assessing investment protection claims as being the situation at the time of the investment, highlighting that investors cannot retroactively create expectations based on later developments.  This insight is particularly significant in the media context, because as noted by Professor Pollicino, the technology sector initially developed under a liberal, minimally regulated framework that enabled rapid platform growth and market consolidation.6ORESTE POLLICINO, A NEW GEOMETRY FOR DIGITAL CONSTITUTIONALISM, IN GRAÇA ENES ET. AL., A DIGITAL EUROPE FOR CITIZENS: DATA GOVERNANCE, DATA MARKETS, DATA SERVICES 11 (2026).X6  This period of regulatory permissiveness is now being replaced by intensified governmental oversight aimed at content moderation and accountability.  Concurrent with the evolving regulatory landscape of the platform economy, democratic governance has experienced a sustained global decline; indeed, the protection of free speech has reached its most precarious state in half a century, as documented by the International Institute for Democracy and Electoral Assistance.7Yana Gorokhovskaia, Cathryn Grothe & Amy Slipowitz, Freedom House, FREEDOM IN THE WORLD 2026: THE GROWING SHADOW OF AUTOCRACY (Mar. 2026) available at https://freedomhouse.org/report/freedom-world/2026/growing-shadow-autocracy (last visited Apr. 3, 2026); International Institute for Democracy and Electoral Assistance (IDEA), THE GLOBAL STATE OF DEMOCRACY 2025: DEMOCRACY ON THE MOVE 2 (2025) available at https://www.idea.int/publications/catalogue/global-state-of-democracy-2025-democracy-on-the-move?lang=en (last visited Apr. 3, 2026).X7  Due to these intersecting developments, regulatory frameworks across the globe are becoming increasingly volatile and grant government authorities – and media firms as intermediaries – wide discretion to determine what constitutes permissible speech.8GIOVANNI DE GREGORIO, THE LAW OF THE PLATFORMS, IN DE GREGORIO, DIGITAL CONSTITUTIONALISM IN EUROPE: REFRAMING RIGHTS AND POWERS IN THE ALGORITHMIC SOCIETY 81 (2022).X8 

For example, the EU Digital Services Act (DSA) requires intermediary services such as host providers, online marketplaces, and social media networks to remove or restrict “illegal content,” but the thresholds for “illegal” material and its enforcement remain subject to ongoing interpretation by national judicial or administrative authorities.9Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services (Digital Services Act), arts. 1-9, 2022 O.J. (L 277).X9  The enforcement of the DSA, however, is more pervasive than merely content regulation.  In a recent development, the European Commission has preliminarily found TikTok in breach of the DSA due to design features that may promote addictive user behavior, marking a novel focus on platform design rather than content issues.10European Commission, Commission preliminarily finds TikTok’s addictive design in breach of the Digital Services Act, Press Release (Feb. 6, 2026) available at https://ec.europa.eu/commission/presscorner/detail/en/ip_26_312 (last visited Feb. 20, 2026). X10  Defining what constitutes addictive design and determining which features must be modified or eliminated involves complex judgements about user autonomy, behavioral science and the balance between engagement and harm.11Xin Ye, Dark Patterns and Addictive Designs, 5 WEIZENBAUM J. DIGITAL SOC’Y NO. 3 (2025).X11  The Commission's findings suggest it is prepared to make those judgements,12European Commission, supra note 23.X12  but the legal and practical challenges of implementing design-level interventions should not be underestimated.  If the Commission's preliminary findings are confirmed, the DSA framework positions design choices as potential sources of regulatory risk that must be assessed, mitigated and, where necessary, restructured.

Beyond the EU framework, significant regional developments in content moderation laws have emerged.  Nigeria’s National Information Technology Development Agency (NITDA) Code of Practice mandates rapid content takedowns within 48 hours of government notice, providing no opportunity for platforms to verify claims or appeal decisions, leaving platforms little predictability over enforcement.13National Information Technology Development Agency (NITDA), Code of Practice for Interactive Computer Service Platforms/Internet Intermediaries (Sept. 26, 2022) (on file with NITDA); Vincent Obia, Digital policy and Nigeria’s Platform Code of Practice: towards a radical co-regulatory turn 7 DATA & POL’Y E 12 6 (2025).X13  At the regional level, the African Union’s ACHPR Resolution 630/2025 establishes broad obligations for digital platforms to moderate misinformation and hate speech, but the resolution leaves significant discretion to its member states in implementation.14African Commission on Human and Peoples’ Rights, Resolution 630: Towards the Development of Pan-African Guidelines on Digital Platforms and Online Content Moderation (2025).X14  Similarly, India’s Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, as amended in 2022 and 2023 and 2026, impose extensive content-governance obligations on media platform intermediaries.15Government of India, Ministry of Electronics and Information Technology, Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, G.S.R. 139(E), dated Feb. 25, 2021 (India), Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (latest amended Feb. 10, 2026). X15  Platforms designated as “Significant Social Media Intermediaries” are subject to heightened due diligence duties.16Id. Rules 2(1)(v), 3(1), 4, 5, 7.X16  Enforcement operates less on independent monetary sanctions, and instead primarily through the withdrawal of statutory intermediary immunity under section 79 of the Indian Information Technology Act, 2000.  Non-compliant platforms forfeit safe-harbour protection and are thereby exposed to direct civil and criminal liability for third-party content.17Id. Rule 7.X17  Furthermore, by an amendment in February 2026, platforms are required to remove or disable access to such information which is used to commit "unlawful acts" within three hours of receiving actual knowledge of such information.18Id. Rule 3(1)(d) (defining actual knowledge arises for a platform when it receives an order of a court of competent jurisdiction considering its content as such, or by an intimation in writing by a competent officer). X18  This recent amendment reinforces India position as one of the world’s most aggressive regulators of online content, and places considerable compliance burdens on media firms.  India's regulatory architecture effectively put enterprises in a position where continued market access depends on aggressive risk-averse content moderation.  In practice, major digital media enterprises operating in India face a structural choice between over-compliance with indeterminate regulatory standards or exposure to criminal and civil liability, effectively risking operational paralysis.

In the United States, free speech is governed by the First Amendment.  To date, no comprehensive federal regulatory initiative comparable to those adopted in other jurisdictions has been enacted.  Several state-level content moderation laws have been enjoined on First Amendment grounds before taking effect.  The Supreme Court addressed two such state laws in Moody v. NetChoice19MOODY V. NETCHOICE, LLC, 603 U. S. 707 (2024).X19 where it held that certain applications of these statutes burden media firms' constitutionally protected editorial discretion.  Specifically, the Court reasoned that when platforms such as Facebook and YouTube decide whether to host, remove, or organize third-party content, they engage in expressive activity protected by the First Amendment.20Id. at 13-29.X20  Laws that restrict a platform’s ability to curate, prioritize, or exclude speech may therefore infringe its editorial control and violate constitutional protections.21Id.X21  Correspondingly, the U.S. government and agencies have conducted directed efforts to regulate certain media firms.

For instance, in TikTok Inc. v. Garland,22TIKTOK INC. V. GARLAND, 604 U.S. 56 (2025).X22 the Supreme Court upheld the Protecting Americans from Foreign Adversary Controlled Applications Act signed by the Biden Administration – a U.S. federal law that bans social networking services classified as "foreign adversary controlled applications" if deemed a national security threat. The Act specifically targets ByteDance Ltd.'s ownership of TikTok and alleges it could give the Chinese government access to sensitive user data or enable influence operations via its algorithms and content moderation, thus, embedding national security rationales against allegations of overt free speech restrictions.23Id. at 12-3 (the Supreme Court specifically narrowed their holding by stating: X23  On September 25, 2025 the Trump Administration announced an Executive Order stating that "[TikTok] will be majority-owned and controlled by United States persons and will no longer be controlled by any foreign adversary […].24Exec. Order No. 14,352, Saving TikTok While Protecting National Security, 90 Fed. Reg. 47,219 (Sept. 30, 2025). X24  Another recent U.S. development on free speech takes aim at broadcasting services. The Federal Communications Commission (FCC) have revived the application of the statutory equal opportunities rule under 47 U.S.C. § 315. The equal opportunities rule essentially requires broadcasting stations to provide political candidates "equal opportunities" to public airwaves, with non-compliance risking license revocations, inter alia.25For more information about the relationship between First Amendment protections and the equal opportunities rule see Eric N. Holmes, CONG. RESEARCH SERV., LSB11239, The Equal Time Rule for Political Candidates: Constitutional Context (2024).X25  This is an ongoing development, however, having prompted a domestic debate whether the FCC is materially correct in certain enforcement cases, and whether the FCC is itself partisan in its enforcement method by targeting only certain broadcast stations.26Eric Columbus, Brendan Carr Has a Point About the Equal Time Rule, Lawfare (Mar. 4, 2026) available at https://www.lawfaremedia.org/article/brendan-carr-has-a-point-about-the-equal-time-rule (last visited Mar. 10, 2026); See also Noah Feldman, The FCC is using 'equal time' to silence late night, Bloomberg Opinion (Feb. 21, 2026) available at https://www.bloomberg.com/opinion/articles/2026-02-19/trump-s-fcc-is-using-equal-time-to-silence-colbert-and-late-night (last visited Mar. 10, 2026).X26 

Because most media firms often distribute the same content across multiple jurisdictions, each jurisdiction apply divergent rules, enforcement standards, and thresholds for permissible speech. Reflecting the structural challenges this creates, Morais Rocha observes that “[digital platforms] are often virtual places without state and law and, therefore, without the rule of law.”27TIAGO MORAIS ROCHA, DIGITAL SERVICES ACT: TOWARDS THE DIGITAL RULE OF LAW, IN GRAÇA ENES ET. AL. A DIGITAL EUROPE FOR CITIZENS: DATA GOVERNANCE, DATA MARKETS, DATA SERVICES 192 (2026). X27  Therefore, the business model of digital media firms combined with an increasingly politically aggressive and volatile regulatory global market, investors cannot rely on stable content rules or consistent application of regulatory authority.28DE GREGORIO, supra note 21.X28  In extreme cases, sudden content takedowns, license revocations, or sweeping censorship requirements could effectively deprive the investor of the use or value of their media outlet,29Aram Aghababyan, Government Blocking of Social Media Platforms as Expropriation of Contractual Rights, 5 ITA IN REV. 3 18, 22‑7 (2023).X29 thus, raising the prospect of indirect expropriation claims30Id. at 18 and 37-8.X30 and the potential discretionary nature of these developing legal regimes can frustrate investors’ legitimate expectations.

Building on the foregoing, a media investor may contend that a government-ordered content takedown, license cancellation, onerous content-regulation requirements, or censorship law violated its legitimate expectations under the FET standard,1Dillon, supra note 5 at 180 1.X1  or that such measures amounted to an indirect expropriation of its investment.2Aghababyan, supra note 42 at 37-8.X2  To qualify for protection a claimant must first establish that the grievance relates to a protected investment as defined under the relevant treaty.  Once investment status is satisfied, the claimant invokes investment protection standards.  The following analysis turns to the circumstances under which a media investment may qualify for protected investment status and subsequently to its potential claims under relevant protections.  Thus, the following discussion aims to demonstrate how the human rights-based free speech argument may function as proxy within the interpretative system of investment treaty arbitration.

A.      The Investment Status of Media Platforms and Conceptualizing Free Speech as 'Economic Investment'

Tribunal jurisdiction presupposes the existence of a covered investment.  As the term lacks a uniform definition, its scope differs across treaties.  Most treaties were drafted before the platform economy emerged and center on tangible assets and traditional services.  According to UNCTAD's World Investment Report 2025 "old-generation investment treaties generally lack provisions directly related to digital investment but also contain an open-ended definition of investment, covering physical assets, such as information and communication technology infrastructure, and non-physical assets, including intellectual property rights."3UNCTAD, UNCTAD/WIR/2025, World Investment Report 2025: International investment in the digital economy 231 (Jun. 19, 2025).X3  Though absent express references in many treaties today, media firm assets may still qualify under broad formulations, such as “any asset” or “any economic interest,” which grant tribunals interpretive leeway to encompass non-traditional investment types.  For media firms, intangible assets pose the most significant interpretive challenges and are highly dependent on the treaty’s wording and the nature of that asset.4Id. UNCTAD further notes that X4  Aghababyan has identified that for mixed or purely intangible assets, the requirement of territoriality is more complex.  Because assets such as contracts, data, revenues from advertisement, intellectual property or know-how are inherently borderless, tribunals have adopted different tests.5Aghababyan, supra note 42 at 29-30 (Aghababyan lifts the example of Abaclat v. Argentina, where the tribunal departed from rigid territorial standards, holding that for financial investments, the relevant question is where and for whose benefit the funds are ultimately used; See Abaclat v. Argentina, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, para. 374 (Aug. 4, 2011). Similarly, Aghababyan contrasts in Nova Scotia Power v. Venezuela, how the tribunal emphasized the benefit conferred upon the host state as the decisive link for establishing territoriality; Nova Scotia Power Inc. v. Venezuela (II), ICSID Case No. ARB(AF)/11/1, Excerpts of Award, para. 130 (Apr. 30, 2014).X5

Some tribunals have also considered the contribution to the host state’s economic development as an additional element in identifying a covered investment.6Cf. Salini Costruttori S.p.A. and Italstrade S.p.A. v. Kingdom of Morocco [I], ICSID Case No. ARB/00/4, Decision on Jurisdiction, para. 52 (Salini v. Morocco established a set of “objective” criteria for the existence of an investment under Article 25 ICSID Convention, including the contribution to the economic development of a state). Furthermore, Professor Matthias Herdegen has, indeed, underscored that foreign investments are essential for creating economic development; MATTHIAS HERDEGEN, PRINCIPLES OF INTERNATIONAL ECONOMIC LAW 405 (2016).X6  Aghababyan has highlighted that the pervasive penetration of social media services into foreign digital economies, entire populations may effectively contract with the platform7Aghababyan, supra note 42 at 19.X7 – an engagement whose aggregate economic and societal significance surpasses that of ordinary commercial arrangements.8European Parliament, EPRS Study No. 656.336, Online Platforms: Economic and Societal Effects, Panel for the Future of Science and Technology, European Parliamentary Research Service (Mar. 10, 2021); Keyao Li, Analysis of the Economic Effects of Digital Platforms, COMMS. IN HUM. RESEARCH 77 (2025) (identifying the pervasive economic impacts of digital platforms on global economic growth and market structures).X8  Major media enterprises now operate as central economic intermediaries affecting consumption, labor, local and global R&D initiatives, advertising, and information flows, and their scale and reach have significant societal implications beyond typical market transactions.9European Parliament, supra note 51; Li, supra note 51.X9  Media enterprises may argue within this determination that their operations advance this criterion by facilitating public goods such as access to information and freedom of speech, thereby situating fundamental freedoms and human rights as a relevant contextual lens grounded in economic empirical results.  

This approach finds a useful point of departure in Nobel Prize winning economist, Professor Amartya Sen’s central argument in Development as Freedom (1999) where he reconceptualized “development” not as traditional GDP growth, but as the expansion of substantive human freedoms.10AMARTYA SEN, DEVELOPMENT AS FREEDOM (1999).X10   According to Sen, political freedoms, including freedom of speech, are identified as “instrumental freedoms” constitutive of development.11Id. at 152. X11  For instance, Professor Sen argues that political freedoms – such as free speech – can have a major role in providing incentives and information in the solution of acute economic needs of nations.12Id. at 147. X12  Thus, in accordance with Sen’s argument, economic development should be viewed as a means to extending freedoms rather than an end in itself.

Another proposition that supports this argument is the research presented by Professors Guernsey, Serfling, and Yan investigating the cost of equity (COE) for private firms enacting U.S. anti-Strategic Lawsuits Against Public Participation (SLAPP) laws into their corporate governance structure.13Scott Guernsey, Matthew Serfling, Cheng Yan, When Speaking Freely Pays: Anti-SLAPP Laws and Firms’ Cost of Equity, ECGI FIN. WORKING PAPER NO. 1078/2025 (2026) (the authors explain that X13  According to their findings greater freedom of speech enhances the credible flow of negative information, supporting the timely incorporation of "bad news" into markets, mitigating shocks, and alleviating mispricing resulting in lowered COE for firms.14Id. at 21, 24-5, 31.X14  Notably for this article's thesis, their findings further indicated that U.S. states that enacted stronger anti-SLAPP statutes showed state-wide correlation in lower COE for corporations, associating an intersection between protections of free speech and strong capital markets.15Id. at 33-4. To further strengthen the point made, the United Nations X15 

A critical point of demarcation arises regarding whether commercial speech rather than freedom of speech is the predominant driver of the media firm's economic contribution to the host state’s development.  The assessment of this distinction will ultimately depend on the quality and availability of empirical evidence capable of disentangling the economic effects attributable to commercial activity from those associated with core expressive functions.  At a minimum the absence of a dominant free speech nexus would not preclude a finding of economic contribution, insofar as other aspects of the media firm's operations independently support indicators of the host state’s economic development. Nonetheless, depending on the nature and framing of the evidence presented, reliance on predominantly commercial economic evidence to substantiate the investment criterion, may risk narrowing the scope for human rights arguments to operate as a relevant contextual factor in evaluating alleged breaches of investment protection standards.

B.      Media Investments under Potential FET and Expropriation Claims

Once investment status is satisfied, the claimant invokes investment protection standards. Assessing a breach requires juxtaposing the legal and factual circumstances at the time of the investment with those prevailing when the state adopted the contested measures.  If that comparison discloses an inexcusable significant departure from the state’s original assurances the state may be deemed responsible for the losses sustained by the investor.16Krzykowski, MariaÅ„ski & ZiÄ™ty, supra note 16 at 78.X16  

The FET enshrined in virtually all bilateral investment treaties require host States to administer their regulatory frameworks in a manner consistent with the investor’s legitimate expectations.  Arbitral tribunals have repeatedly emphasized that legitimate expectations arise from the legal and regulatory conditions prevailing at the time of the investment, as well as from specific assurances on which the investor reasonably relied.17Tecmed v. Mexico, supra note 16; LG&E Energy v. Argentina, supra note 18, paras. 125-31.X17  The standard has been interpreted to encompass core requirements of transparency, stability, due process, and freedom from arbitrariness.18Tecmed v. Mexico, supra note 16; LG&E Energy v. Argentina, supra note 18, paras. 125-31; DOLZER & SCHREUER, supra note 14 at 193; Waste Management, Inc. v. United Mexican States (No. 2), ICSID Case No. ARB(AF)/00/3, Award, para. 98 (Apr. 30, 2004); Stephan W. Schill, Fair and Equitable Treatment under Investment Treaties as an Embodiment of the Rule of Law, 11 IILJ WORKING PAPER 1, 9-23 (2006).X18  For media investors – whose operations are typically grounded in licenses, regulatory approvals, and ongoing interaction with public authorities – these elements acquire particular importance.  Broadcasting and platform-based business models depend not only on formal authorization, but on the predictable and procedurally fair exercise of regulatory power regarding free speech, rendering them structurally sensitive to abrupt or opaque state intervention.19Cf. DE GREGORIO, supra note 21.X19  

In practice, a media investor alleging a breach of FET must demonstrate that the host state’s conduct fundamentally departed from the framework on which the investment was made, including regulations for speech protection.  Tribunals have consistently held that States retain the sovereign right to regulate – including in politically sensitive sectors such as health and national security – but that this right is not unfettered.20Saluka Investments BV v. Czech Republic, UNCITRAL, Partial Award, para. 305 (Mar. 17, 2006); Parkerings-Compagniet AS v. Lithuania, ICSID Case No. ARB/05/8, Award, para. 332 (Sep. 11, 2007).X20  Where regulatory changes are unreasonable or inequitable, and where they materially frustrate expectations of regulatory continuity or lawful process, FET may be breached.21Saluka v. Czech Republic, supra note 63; Parkerings-Compagniet, supra note 63; LG&E Energy v. Argentina, supra note 18, para. 130. Krzykowski, MariaÅ„ski & ZiÄ™ty, supra note 16 at 78-80.X21   This reasoning underpinned the findings in cases such as CME v. Czech Republic, where the manipulation of licensing regimes and selective regulatory enforcement against due process were found to dismantle the legal security of the investment and distort competitive conditions.22CME v. Czech Republic, supra note 3.X22  Therefore, the FET inquiry in the media context is not only concerned with the substantive content of regulation but also with its manner, coherence, and impact on the investor’s reliance on an established legal order.

As discussed above, although investment tribunals do not adjudicate freedom of speech as a freestanding right, human rights norms could increasingly inform the interpretive environment within which FET is applied.  Relevant rules of public international law may guide the interpretation of treaty standards – including arbitrariness and due process – allowing human rights arguments to supply a normative baseline for assessing FET breaches arising from interferences with media operations, as contextual determinants of fairness.23Dillon, supra note 5 at 187-9, 201; Vienna Convention on the Law of Treaties (1969) art. 31(3)(c); Schill, supra note 61; Urbaser v. Argentina, supra note 6. X23  In this sense, suppression of broadcasting activity, politically motivated license revocations, or coercive content controls may reinforce a finding that state conduct was manifestly inequitable, particularly where it undermines both the commercial viability of the investment and the procedural values embedded in public international law.

Alongside FET, regulatory measures affecting media enterprises may also under certain circumstances give rise to claims of indirect expropriation.  Investment treaties uniformly prohibit both direct and indirect takings of covered investments, and tribunals have long accepted that expropriation may occur through measures that do not formally transfer title but nonetheless neutralize the economic substance of the investment.24DOLZER & SCHREUER, supra note 14 at 153.X24  As the Metalclad tribunal established, indirect expropriation encompasses “covert or incidental interference” that has the effect of depriving the investor of the use or reasonably expected economic benefit of its property.25Metalclad Corporation v. United Mexican States, ICSID Case No. ARB(AF)/97/1, Award, para. 103 (Aug. 30, 2000).X25  In the media sector – where the commercial value of the investment often resides in regulatory entitlements and market access rather than in physical assets – permanent bans, license cancellations, or regulatory restructuring that restricts speech and renders operation impossible may satisfy the “substantial deprivation” threshold, as articulated by the tribunal in Pope & Talbot v. Canada.26Pope & Talbot Inc. v. Canada, UNCITRAL, Interim Award, paras. 102-4 (Jun. 26, 2000).X26  This logic underpinned the finding in CME v. Czech Republic, where the dismantling of the claimant’s broadcasting framework was held to have effectively extinguished the investment and to constitute an indirect expropriation.27CME v. Czech Republic, Partial Award, supra note 3, paras. 591-609.X27 

Furthermore, Aghababyan has highlighted that for digital and social-media enterprises in particular, the core assets most vulnerable to expropriation are intangible and relational: contractual rights, user agreements, and the commercial capacity to collect data and monetize audience access.28Aghababyan, supra note 42 at 37-40.X28   International jurisprudence has consistently recognized that contractual rights capable of economic valuation may constitute expropriable property.29DOLZER & SCHREUER, supra note 14 at 147-9.X29  The PCIJ in Certain German Interests in Polish Upper Silesia treated the taking of a factory as simultaneously expropriating the contractual rights attached to it, while later tribunals have affirmed that “any right which can be the object of a commercial transaction” may be subject to expropriation.30Cf. Aghababyan, supra note 42 at 37-40; Certain German Interests in Polish Upper Silesia (Merits), PCIJ Series A No. 7, Judgment, 44 (May. 25, 1926); Amoco International Finance Corp. v. Iran, Iran-US Claims Tribunal, Partial Award No. 310-56-3, para. 108 (Jul. 14, 1987).X30  As underscored by Aghababyan, this approach has been reiterated in modern investment arbitration, including Siemens v. Argentina, EMV v. Czech Republic, and Saipem v. Bangladesh, all of which confirm that state measures substantially neutralizing contractual rights may amount to indirect takings.31Cf. Aghababyan, supra note 42 at 37-40; Siemens A.G. v. Argentine Republic, ICSID Case No. ARB/02/8, Award, paras. 267-70 (Jan. 17, 2007); EMV v. Czech Republic, supra note 47, para. 84; Saipem S.p.A. v. Bangladesh, ICSID Case No. ARB/05/7, Decision on Jurisdiction, paras. 127-8 (Mar. 21, 2007).X31  Aghababyan has further noted that when a government blocks a social-media platform, it exercises sovereign authority in a manner that may deprive thousands or millions of user agreements of any economic value, severing the legal and commercial relationships through which the platform extracts data, advertising revenue, and market presence.32Aghababyan, supra note 42 at 39-40.X32  Where such measures permanently extinguish the platform’s ability to operate and monetize its contractual network, tribunals may be prepared to characterize the interference not merely as regulation, but as a de facto expropriation of an integral component of the investment.33Id.X33 

Looking ahead, the confluence of investment law, democratic governance, and digital regulation will shape both treaty practice and arbitration case law.  Media and digital platforms may press for treaty-based relief when major markets impose new speech controls, and ongoing disputes will test whether tribunals treat content moderation mandates as a legitimate exercise of state power or as treaty violations.  Furthermore, the potential intersection between free speech rights and investment claims raises profound policy questions.  Proponents argue that investment arbitration can vindicate globally recognized norms of free expression by giving investors binding remedies.1Bollinger and Sauvant, supra note 12.X1  Professors Bollinger and Sauvant, for example, contend that when domestic or human rights mechanisms fall short, investors and their home states may rely on treaties’ enforceable, damages-based dispute resolution to uphold media freedom.2Id.X2  Indeed, where censorship anywhere can chill discourse everywhere, some might view investment law as a tool for protecting the worldwide discussion necessary to democracy.3Id.X3  In this respect, an award for a media investor is justifiable compensation for the real harm of suppressed speech. Furthermore, as this article has underscored, free speech is a cornerstone of a democratic society. As such, the adjudication of speech issues in an investment context is consistent with the acquis of investment law's purpose of advancing good governance democratic structures conducive to attracting and retaining investments.4HERDEGEN, supra note 49.X4 

However, investment arbitration was not originally designed to adjudicate free speech controversies, and granting media firms proxy-rights through investment protection could, in fact, undermine national democratic governance and sovereignty.  Tribunals may therefore attempt to limit their role to economic effects, such as compensation for lost business, rather than approving or overruling pervasive content-moderation and compliance decisions.  Ultimately, any award balancing media firms’ speech claims against state regulation must grapple with sovereignty concerns.  States will assert their right to regulate their territory, just as they regulate health or national security.  Investment tribunals have long recognized a state’s “right to regulate” often deferring to bona fide public purpose measures.  In speech-related cases, this principle requires careful analysis of proportionality and motive.  Tribunals may insist that only truly excessive or discriminatory restrictions cross the line into investment protection violation.  Importantly, as free speech continues as one of the main battlegrounds of a reconfiguring international order, the adjudication of speech-related disputes in investment arbitration carries a heightened risk of generating politically controversial awards capable of undermining the perceived legitimacy and, ultimately, the enforceability of the arbitral system.