International Investment Agreements: A survey of Environmental, Labour and Anti-corruption Issues

Abstract

This paper surveys the societal dimension of 296 international investment agreements (IIAs) signed by the 30 member countries and of by the 9 non-member countries that participate formally in OECD investment work. Annex 3.A1 to the paper looks at the same issues for 131 IIAs signed by 15 developing countries (including China and India) that are not part of the OECD sample. The survey finds that, in practice, the societal dimension covers mainly environment and labour issues, but some (usually) more recent agreements contain language on human rights and anti-corruption. More generally, however, the survey shows that few of the countries in both the OECD and non-OECD samples include language on societal issues in their IIAs – 16 of the 39 countries in the OECD-related sample and 6 out of the 15 countries in the non-OECD sample include such language in any of their IIAs. The others never include societal language in their IIAs, although they emphasise that this does not diminish the importance that they attach to such issues. For the countries in the OECD sample that do include such language, the most common approach is to include a short text in the preamble; however, Canada, Mexico and the United States include lengthy texts in preambles, articles and annexes. While the OECD texts focus on such issues as upholding internationally agreed principles, right to regulate and not lowering standards, the issue most frequently encountered in the non-OECD sample is exceptions to most favoured nations in relation to benefits stemming from regional co-operation in the economic, social or labour fields. The survey of recent arbitration decisions revealed several claims dealing with environmental permits and regulation and two cases involving corruption allegations. One observation is that arbitration panels in some of these cases refer to broader international instruments in the environmental and anti-corruption fields when making their decisions, even if these instruments are not explicitly cited in the IIA under which the case has been brought.