Model Bilateral Investment Treaty Research Articles

Ubuntu, human rights and sustainable development: Lessons from the African Arbitration Academy’s Model Bilateral Investment Treaty

This paper provides a non-exhaustive analysis of the ubuntu-based human rights approach to sustainable development adopted recently by the African Arbitration Academy’s Model Bilateral Investment Treaty. The concept of ubuntu is used in this approach to sustainable development as an overriding principle for the interpretation, performance and enforcement of substantive treaty provisions, including investors’ human rights obligations. Through this original approach, sustainable development objectives are to be achieved in the host state by focusing on effective protection and implementation of human rights. Specifically, the study employs the methodology of legal analysis of provisions derived primarily from the model, the methodology of comparative analysis and the comprehensive study doctrine. The paper suggests that the ubuntu-based human rights approach has the potential to enhance the acceptance of human rights, effectively implement them and contribute to the achievement of sustainable development goals. This paper is an important contribution to the literature on sustainable development, the culturalisation of human rights and corporate human rights responsibility.

Article: The 2019 BLEU Model BIT: BLEU’s Vision of the Future of Investment Protection

This article compares the 2019 BLEU model bilateral investment treaty with the older 2002 version. After an overview of the BLEU’s role as a major actor in international investment law, the authors argue that the changes introduced by the 2019 Model BIT reflect the EU’s policy towards foreign investment protection. The drafters of the 2019 Model BIT were inspired by the EU-Canada Comprehensive Economic and trade Agreement and the European Commission’s proposal to establish a Multilateral Investment Court. The 2019 Model BIT marks a shift from liberalization of foreign direct investment (FDI) to the protection of the sovereign powers, in particular the State’s right to regulate, and the curtailing of investment protection presented as a response to the investment protection system’s misuse and abuse by investors. By placing certain limitations to substantive standards of protection, placing strong emphasis of sustainable development objectives and advocating a reform of the investor-State dispute settlement (ISDS), the 2019 BLEU Model BIT puts forward a vision for the future of investment protection that departs from the Washington Consensus of economic liberalization but also enables the investment protection system to survive in the face of the so-called backlash against ISDS and the criticism of civil society.

Last year’s model? Investment arbitration, negotiation, and the gap between Model BITs and IIAs

ABSTRACT With more than 3000 international investment agreements (IIAs) worldwide, states negotiate similar agreements multiple times with numerous partners. Accordingly, many states have developed template agreements known as ‘Model bilateral investment treaties (BITs)’. Nevertheless, concluded IIAs commonly deviate from the corresponding Model BITs, albeit to varying degrees. Investigating this variation, we examine the impact of Model Countries and their Partner Countries’ investor–state dispute settlement (ISDS) experience. Specifically, we argue that the Model Country adopts changes sought by the Partner Country during the negotiation process in order to accommodate the latter’s preferences, which were shaped by lessons learned from ISDS cases. Empirically, we introduce novel measures of divergence between Model BITs and IIAs, based on the concept and scheme of state regulatory space, with respect to several key aspects of investment rules. Coding a large number of Model BITs and IIAs on these variables and controlling for a host of alternative explanations, we find that the higher number of investment claims filed against the Partner Country, but not the Model Country, is associated with greater divergence between the Model Country’s Model BITs and its IIAs. This effect is especially noticeable with respect to important substantive investment rules.

The African Arbitration Academy’s Model Bilateral Investment Treaty for African States

The African Arbitration Academy’s Model Bilateral Investment Treaty for African States

Disclosure, and challenge of arbitrators under the Indian Model BIT: A step towards enhancing the legitimacy of investment arbitration?

Legal provisions for disclosure and challenge of arbitrator are very crucial to restore the confidence of the parties in the arbitral process when it is upset by complaints of lack of independence or impartiality of arbitrators. However, detailed and binding rules on the challenge and disqualification of arbitrators are not forthcoming. Against this backdrop, the revised Indian Model Bilateral Investment Treaty (BIT) of 2015, as a first-of-its-kind, has taken the initiative of including a detailed framework in the form of treaty rules to address the disclosure requirements and the grounds and procedure for challenge of arbitrators. In this connection, the article attempts to determine how the disclosure and arbitrator challenge mechanisms are structured across the leading international (investment) instruments and later use this as a benchmark to evaluate the disclosure obligations of arbitrators and their challenge under the Indian Model BIT. disclosure, challenge of arbitrators, Indian Model BIT, independence and impartiality, code of conduct, justifiable doubts standard, CC/Devas v India.

The 2019 Morocco Model BIT: Moving Forwards, Backwards or Roundabout in Circles?

Abstract The Moroccan Model Bilateral Investment Treaty (BIT) (2019) adds to a growing body of ‘new-generation’ model BITs that have fuelled the conversation on reforming the investment arbitration system. Broadly speaking, such agreements have attempted to rethink means of dispute resolution and traditional investment protection standards while adding detailed investor obligations and standards of conduct. In that context, this article discusses the provisions of the Moroccan Model BIT (2019), highlighting not only progressive developments but also areas of concern. Upon comparing the provisions of the BIT with those of other ‘new-generation’ investment agreements, as well as existing treaty practice, the authors offer the following findings.

Environmental Protection Under the Ugandan Model Bilateral Investment Treaty: A Call for Reform

Environmental Protection Under the Ugandan Model Bilateral Investment Treaty: A Call for Reform

The 2019 Dutch Model Bilateral Investment Treaty: Navigating the Turbulent Ocean of Investment Treaty Reform

The 2019 Dutch Model Bilateral Investment Treaty: Navigating the Turbulent Ocean of Investment Treaty Reform

Rebus sic stantibus as a Stabilizing Doctrine in the Climate Crisis

Abstract In the face of massive, unanticipated and even disjunctive changes, the balance of the respective interests of the state parties to existing treaties may no longer survive the changed—or changing—climate landscape. While, ideally, the co-contracting states to such treaties could mutually agree to terminate or revise their treaty obligations to accommodate such changes and redress the now imbalance of interests in the treaty, some scenarios are bound to be contentious. In such cases, is there any other procedure that can provide for an orderly and fair adjustment of treaties so as to avert a breakdown of the network of treaties and a destabilization of world order? This article proposes that the rebus sic stantibus doctrine may function as a stabilizing doctrine for maintaining and possibly adjusting treaty regimes in an orderly fashion. Unlike the doctrine of necessity or many explicit treaty carve-outs, such as the security exception of the US Model Bilateral Investment Treaty, the doctrine of rebus sic stantibus may allow for both an objective test and also one that must be pleaded before a third-party arbiter. For this reason, rebus operates within controlled limits. Rebus offers an international tribunal the opportunity to set out a fair termination or revision of a climate-impacted treaty. I trace the evolution of rebus as a stabilizing doctrine and illustrate the potentialities of its application to the climate crisis.

The New Italian Model Bit Between Current and Future Trends

Abstract In 2021, the new Italian Model Bilateral Investment Treaty has been published. It replaced the 2003 Model bit and can be considered as a significant example of the “new generation of bit s”, which try to better balance investor rights with the public prerogatives of States. The Model Treaty also introduces significant innovations as to the conduct of arbitrators and the corporate social responsibility of investors and is also aimed at coordinating Italian and European foreign investment policies. This article offers a view of this new Model bit and tries to insert it in the broader context of the proposed reforms regarding international investment law and arbitration.

The Protection of the Environment in International Investment Agreements – Recent Developments and Prospects for Reform

Foreign investors benefit from rights to the protection of their foreign investments under a web of thousands of international investment agreements (IIA S). Those IIA s traditionally, however, contain no corresponding duties. The presence of rights without corresponding obligations in the global system of investment protection has attracted significant criticism. This is particularly true in the field of environmental protection (including the fight against climate change), where the concern is that the promotion and protection of investment may unduly restrict a State’s ability to take measures that promote environmental objectives. This article analyses what IIA S do or could do to contribute to the goal of environmental protection, in three parts: first, it identifies provisions of “old generation” IIA S (i.e., those concluded prior to 2010) that provide scope for environmental considerations to be taken into account; second, it analyses the trend in recent IIA S and model bilateral investment treaties (BIT S) to incorporate mechanisms aimed at promoting environmental protection in relation to the regulation of foreign investment; and third, it analyses various possibilities for reform of international investment law to further promote the protection of the environment in the field of foreign investment. It concludes that while the texts of the vast majority of IIA S currently in force appear to do little directly to promote environmental objectives, some contain certain mechanisms that are capable of allowing tribunals to give environmental concerns the weight they deserve. In relation to new and renegotiated IIA S, there are a wide variety of mechanisms that can be used to enhance the contribution they make to promoting sustainable investment and investment in green industries.

The UK’s Post-Brexit Investment Policy: An Opportunity for New Design Choices

Brexit presents an important opportunity for the UK to reimagine its investment policy. The UK formulated its independent investment policy, separate from the European Union’s, more than a decade ago. Since then, State practice relating to investment protection, facilitation, liberalisation and dispute resolution has changed. New model bilateral investment treaties (BITS) and other recent international investment agreements offer innovations. The UK can learn from these developments in formulating its post-Brexit investment policy. The UK’s recent policy documents suggest that its investment policy will closely track its historical practice. The UK has historically offered investment protection to foreign investors in its bit s. Investors have been allowed to initiate arbitration against States. However, the UK’s current negotiations with the EU suggest that investor protections may be more limited. This article begins by describing the UK’s existing trade agreements and recent trade practice as an EU Member State. It also describes the anticipated impact of Brexit on these arrangements and practices. The next section explains the likely direction of the UK’s future investment policy, as indicated in recent policy documents. The final section offers ideas for selected design choices that the UK could make in formulating its investment policy.

Contributory Fault under International Law: A Gateway for Human Rights in ISDS?

Abstract The intersection between foreign investment and human rights is gaining attention, as is evident from an increasing number of investment treaty awards analysing legal issues relating to human rights. In the recent International Centre for the Settlement of Investment Disputes (ICSID) arbitration of Bear Creek v Peru, Philippe Sands QC posited, in a dissenting opinion, that the investor’s contribution to events—ie protests against its allegedly adverse environmental impact and disregard of indigenous rights, namely resulting from its ‘inability to obtain a “social licence”’—which led to the unlawful expropriation of its investment, was ‘significant and material’. He further noted that the investor’s ‘responsibilities are no less than those of the government’ and found that damages should thus be reduced. Last year, the Netherlands adopted a new model bilateral investment treaty (BIT), which allows tribunals to ‘take into account non-compliance by the investor with the UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises’ when assessing damages. These recent developments shed light on how states and tribunals, as part of their decision-making process, can take into account human rights in practice, and crucially in respect of damages analyses. By first dissecting the concept of contributory fault, then shedding light on the intersection of investment treaty law and human rights, as elucidated in recent jurisprudence, this article questions whether there now exists a gateway for human rights obligations (soft or hard) in the investment treaty arbitration realm through the concept of contributory fault.

A Legal Analysis of the 2019 Dutch Model Bilateral Investment Treaty: Balancing the Investor's Rights and the Public Interest of the Host State

傳統上，國際投資協定被認為是維護投資法律環境與鼓勵外國直接投資的重要法律工具。因此，當今國家締結有為數眾多的雙邊投資條約，或是於自由貿易協定中訂定投資專章。與此同時，各國通過有雙邊投資條約範本，以作為建構其保護與促進外國投資活動之法律網絡的基礎。然而，由於近年來投資者權利與地主國公共利益兩者的衝突不斷增加，國際投資協定因此開始進行改革，以平衡投資者與地主國之間的權利義務關係，而此趨勢亦展現在各國對於雙邊投資條約範本的修正。荷蘭於2019年通過之《投資互惠促進及保護協定範本》為近年來國際間所通過的新雙邊投資條約範本，其目的在取代2004年之《投資鼓勵及互惠保護協定範本》，以作為日後荷蘭與其他非歐盟成員國締結或修改雙邊投資條約的基礎文件。本文擬探討2019年荷蘭雙邊投資條約範本於何種程度上展現出對於國際投資協定過去單方面保護投資者權利的修正，以及其是否有助於地主國規制權的行使以確保公共利益。International investment agreements (IIAs) are traditionally regarded as important instruments for creating a stable investment environment and promoting foreign direct investment (FDI). As a result, States conclude a number of bilateral investment treaties (BITs) and include free trade agreements (FTAs) with investment provisions. States also adopt Model BITs as the bases for developing their extensive networks for the protection and promotion of foreign investment. However, with the conflict between the protection of the investor's rights and the public interest of the host State arise, IIAs concluded in recent years not only narrow down the scope of protection the investor used to enjoy, but also seek to ensure the host State's regulatory space for the public interest. This trend has also reflected in the amendment of Model BITs.Investment adopted by the Netherlands in 2019 (the 2019 Dutch Model BIT) aims at replacing the 2004 Model Agreement on Encouragement and Reciprocal Protection of Investment and will become the basic instrument for the Dutch Government to conclude BITs with non-EU countries. This article explores the extent to which the 2019 Dutch Model BIT has reflected the growing trend mentioned above, thereby achieving a better balance between the investor's right and the public interest of the host State.

Brazil India Investment Cooperation and Facilitation Treaty (2020)

During a recent visit to India (24th – 27th January) as a chief guest of the Republic Day celebration, Brazilian President Jair Messias Bolsonaro sketched an ambitious plan to revitalization their faltering economy. This new strategic partnership will expand cooperation in key sectors of the economy such as oil, gas, and mining, while it was setting the target of USD 15 billion in bilateral trade by 2022. While approaching to WTO against India for extending support to her sugarcane farmers, Brazil penned investment cooperation and facilitation treaty. This is Brazil’s 10thand India’s 4thbilateral investment agreement since both nations had adopted their Model Bilateral Investment Treaty. Previously, India has managed to conclude bilateral investment treaties with Belarus, Kyrgyzstan, and Cambodia after scrapping down all 83 existing bilateral investment treaties. The object and purpose of this short write-upare to critically analyze and compare the new Brazil-India Cooperation and Facilitation Treaty (Brazil-India BIT) with the Model BITs of India and Brazil. It will be discussed who deviates from Model BIT and to what extent to sign the investment agreement. Moreover, the author will evaluate whether both countries have compromised their interest to strike a deal and who wins the deal or to what extent.

The UK’s Post-Brexit Investment Policy: An Opportunity for New Design Choices

Brexit presents an important opportunity for the UK to reimagine its investment policy. The UK formulated its independent investment policy, separate from the European Union’s, more than a decade ago. Since then, State practice relating to investment protection, facilitation, liberalisation and dispute resolution has changed. New model bilateral investment treaties (BITs) and other recent international investment agreements offer innovations. The UK can learn from these developments in formulating its post-Brexit investment policy. The UK’s recent policy documents suggest that its investment policy will closely track its historical practice. The UK has historically offered investment protection to foreign investors in its BITs. Investors have been allowed to initiate arbitration against States. However, the UK’s current negotiations with the EU suggest that investor protections may be more limited. This article begins by describing the UK’s existing trade agreements and recent trade practice as an EU Member State. It also describes the anticipated impact of Brexit on these arrangements and practices. The next section explains the likely direction of the UK’s future investment policy, as indicated in recent policy documents. The final section offers ideas for selected design choices that the UK could make in formulating its investment policy.

The Protection of the Environment in International Investment Agreements – Recent Developments and Prospects for Reform

Foreign investors benefit from rights to the protection of their foreign investments under a web of thousands of international investment agreements (IIAs). Those IIAs traditionally, however, contain no corresponding duties. The presence of rights without corresponding obligations in the global system of investment protection has attracted significant criticism. This is particularly true in the field of environmental protection (including the fight against climate change), where the concern is that the promotion and protection of investment may unduly restrict a State’s ability to take measures that promote environmental objectives. This article analyses what IIAs do or could do to contribute to the goal of environmental protection, in three parts: first, it identifies provisions of ‘old generation’ IIAs (i.e., those concluded prior to 2010) that provide scope for environmental considerations to be taken into account; second, it analyses the trend in recent IIAs and model Bilateral Investment Treaties (BITs) to incorporate mechanisms aimed at promoting environmental protection in relation to the regulation of foreign investment; and third, it analyses various possibilities for reform of international investment law to further promote the protection of the environment in the field of foreign investment. It concludes that while the texts of the vast majority of IIAs currently in force appear to do little directly to promote environmental objectives, some contain certain mechanisms that are capable of allowing tribunals to give environmental concerns the weight they deserve. In relation to new and renegotiated IIAs, there are a wide variety of mechanisms that can be used to enhance the contribution they make to promoting sustainable investment and investment in green industries.

Comparative Analysis between the 2018 and 2004 Dutch Model Bilateral Investment Treaty Texts

This article compares the recently published 2018 Dutch model bilateral investment treaty text (2018 Model bit) and the former 2004 version. The changes to the 2018 Model BIT reflect the reaction by European Union (EU) Member States to the increasing number of investor-state disputes against them, the general backlash against free trade agreements (FTA), and the CJEU’S decision in Achmea. Furthermore, the drafters of the new Dutch Model bit carefully took into consideration the framework of the EU-Canada Comprehensive Economic and Trade Agreement (CETA) and the European Commission’s proposal for the establishment of an Investment Court System (ICS) as a substitute for the current investor-state dispute settlement system (ISDS). As a result, the 2018 text incorporates significantly stricter provisions than the ones of the former version.

EVOLUTION OF THE LEGAL CONCEPT OF "FOREIGN INVESTMENT" IN A NETWORK SOCIETY

The paper deals with the problems of definition of the concept "investment" in multilateral and bilateral investment treaties. The author shows how the approach to the definition of "investment" in international investment agreements has changed over time, how this concept differs in modern agreements from those enshrined in agreements concluded more than ten years ago. It is noted that today we can talk about the trend of a broad definition of the concept of investment in international treaties, that is, investments are understood as any kind of property values; further the author specifies what applies to them.International treaties on the protection and promotion of investment also include the right to engage in business activities. It turns out that investment disputes can arise from ordinary commercial activities, for example from a contract of sale. However, there are documents that do not include monetary claims arising from commercial contracts, such as the 2012 model bilateral investment Treaty of the South African development Community.Generally, investment protection agreements do not distinguish between direct and portfolio investments. Therefore, portfolio investments also enjoy the protection of these investment treaties. However, some of the international investment agreements that are currently being concluded specify that portfolio investments are excluded from their scope, such as the Model bilateral investment Treaty of the South African Development Community.In the literature there are three approaches to the qualification of foreign arbitral awards as a foreign investment. According to one of them, the award is an investment, because it is part of the entire activity of the investor. Some modern international investment agreements contain provisions according to which arbitration, judicial decisions are not investments.

The 2019 Netherlands Model BIT: riding the new investment treaty waves

Abstract Investor–state arbitration is undergoing a paradigm shift with several countries and regional blocs rethinking the best way to protect investor rights while retaining sovereign prerogatives. This is where the Netherlands fits into the narrative. Its decision to modernize appears to follow the contemporary developments in investment arbitration, including heightened public scrutiny on the effect of investment treaties on regulatory space and the investor-to-state dispute settlement system, as well as the Post-Treaty of Lisbon European Union framework for investment arbitration. On 16 May 2018, the Dutch Ministry of Foreign Affairs published a draft for a new Model Bilateral Investment Treaty (BIT) on the Government’s website. This was done with a view to updating the earlier Model BIT which dates. Through public consultation, individuals and interest groups were invited to share their views. The Government amended the 2018 Draft Model BIT after deliberating on the public reactions it had received, and circulated a new draft on 19 October 2018. Subsequently, after parliamentary debate in February 2019, the Dutch Government published an updated Model BIT on 22 March 2019. In this article, we critically examine the 2019 Final Dutch Model BIT and examine it in light of the global rethink on investment law and policy.