Trade secrets at risk—the protection against expropriation of a trade secret

An investor exploiting their trade secret in a foreign territory puts it at risk of disclosure, use, or regulation by the host State. If the risk materializes, a foreign investor may seek to mitigate the impacts with the protections afforded by an investment treaty. As investors in the Czech Republic, Kenya, Pakistan, and Venezuela have sought to do. While the protection of trade secrets has been noted by commentators, a detailed analysis of the protection of trade secrets under international investment law is yet to be offered. In this article, I outline how trade secrets amount to an ‘investment’, the types of risks to a trade secret, and how the protection against expropriation can mitigate four risks for a foreign investor.