Treaty Program Research Articles

Brazil’s New Investment Treaty Model: Why Now?

The investment treaty regime, unlike other economic regimes, lacks common substantive multilateral rules and depends on countries signing bilateral or plurilateral investment treaties. As the regime presented a pro-developed country bias, developing countries, especially in Latin America, avoided signing investment treaties up to the 1980s. Brazil followed this trend and did not start an investment treaty program until the late 1990s. However, the treaties never entered into force. The country also avoided acceding to the World Bank agency responsible for investment arbitration proceedings - the International Centre for Settlement of Investment Disputes (ICSID). In 2015, Brazil started a new investment treaty program. However, the timing seems counterintuitive. The investment treaty regime had already been criticized, including inefficiency in attracting foreign investment, the potential to encroach on countries’ regulatory sovereignty and the lack of legitimacy of its investor-state dispute settlement (ISDS) procedure. Furthermore, the favorable foreign economic scenario did not force the country to seek an inflow of foreign capital at that time. The new Cooperation and Facilitation Investment Agreement (CFIA) is presented as an investment treaty model for developing countries, since it responds to major criticisms to the investment treaty regime, and at the same time meets the demands of an important domestic interest group, the Brazilian industrial sector, for a legal framework that mitigates the political risk of its increasingly internationalized operations. Brazil’s CFIA may be viewed as a model that other developing countries could emulate in the face of the failure of the traditional paradigm of investment dispute settlement.

The Origins of Euratom's Research on Controlled Thermonuclear Fusion: Cold War Politics and European Integration, 1958–1968

The article traces the origins and early developments of European fusion research in the framework of Euratom and of postwar nuclear international institutionalism, and as an episode of both the technoscientific Cold War and the interaction between big science and politics in the history of European integration. Based on original Italian, French and European Union archival sources, the article deals with four main passages of Euratom's fusion history: the Euratom treaty and Euratom's first five-year programme (1958–62); the early attempts to establish a Euratom ‒ CERN Joint Study Group for Fusion Research (1958‒9); the launching of Euratom's first fusion programme; and the contribution of Euratom's ‘fusion association contracts’ with the member states to the creation and training of a European transnational epistemic community of fusion scientists and technocrats. The Merger Treaty of 1965, the ‘crisis’ of Euratom and the prospect of British entry in the Community, as well as the ‘tokamak revolution’ of the late 1960s, would contribute to substantially redefine the European fusion programme.

Evaluating the Strategy to optimize the Retakaful Treaty Property Insurance: In the Perspective of the Sharia General Insurance Company in Indonesia

Purpose: This study on the potential strategy to optimize the retakaful treatyproperty insuranceof the Indonesian sharia general insurance company. Those potential strategies are the priority strategy and alternative strategy.The company can design a piority strategy to optimize the retakaful treaty contract so as to minimize problems arising from the implementation of the underwriting and claim handling. Design/methodology/approach: Thedesign of this research is descriptive - qualitative.A survey on the reinsured’s retakaful existing strategy, retakaful treaty program, internal and external factors, the company's position and implementation ofits business process werealso conducted for this study. Several alternative strategies were obtained using Strength, Weakness, Opportunity (SWOT) analysis and the priority strategyis determined by the Quantitative Strategic Planning Matrix (QSPM) analysis. Finding: The findings from the survey of the evaluation of reinsured’s retakaful existing strategies are: An alternative strategy obtained by using a SWOT matrix analysis, where the company's position in quadrant I with a progressive strategy. The strategy is in accordance with the results of the company's position analysis using the IE matrixwhere the company is in quadrant II in the position of Growth and build. The suitable strategy is to use intensive, forward, backward and horizontal integration. By using the QSPM, the priority strategy is that the company can design a quality retakaful treaty contract. Research Limitation/Implications: This study is limited to Indonesian’s retakaful experience. The strategy being evaluated is the reinsured’s retakaful existing strategy. The findings are the the priority strategy and alternative strategy. The company can design a priority strategy regarding the retakaful treaty contract to optimize the treaty program. Practical Implications: By evaluating the reinsured’s existing strategy in the retakaful treaty, the sharia general insurance company can design a quality retakaful treaty contract to optimize the treaty program. The study may also aid the researchers and regulators to discuss on the area for further development of sharia insurance industry. Social Implications: Based on the findings and implications, it can give managerial implication to the sharia general insurance company and convince the government to speed up the other retakaful business units to spin off becoming a professional reinsurance company. So the numbers of the sharia reinsurance companies in Indonesia will increase and moreover strengthen the sharia insurance industry. Originality/value: The insights on the respondent’s experience when explaining the internal and external factors, company’s position related to the strategy on optimizing retakaful treaty can assist the sharia generalinsurance companies to manage the risks and have a priority strategy to set up their underlying retention and get the claim recovery from the reinsurer. Keywords: Priority Strategy, Retakaful Treaty, Property insurance, Sharia general insurance company.

Growing New Wings: The Rise Of International Arbitration In Japan

This article considers the growing trend for Japanese entities to select international arbitration as the primary means for resolving international business disputes. In particular, this paper focuses on the following four factors which it identifies as being significant drivers behind this trend: (1) increasing maturity of Japanese parties in terms of their arbitration experience; (2) a growth in awareness of arbitration associated the rapid expansion of Japan’s investment treaty programme; (3) the establishment of a locally based arbitration talent pool, and (4) improvements in the domestic legal, educational and physical infrastructure for arbitrations seated in Japan. Japan, international arbitration, investment treaty arbitration, market growth, legal infrastructure, statistics.

Renegotiation of Investment Treaties as a Mean of Internalization

A few states in Asia and Latin America have recently embarked on an overhaul of their investment treaty program by terminating and renegotiating the states’ bilateral investment treaties (BITs). While that is commonly viewed as part of a backlash against the global investment treaty regime and particularly its investor-state dispute settlement mechanism (ISDS), this paper suggests that narrowing the scope of the host state’s substantive obligations, preserving regulatory autonomy and limiting the state’s exposure to investment treaty claims are not the only virtues which may arise from a state’s investment treaty renegotiation program. The program, and the resulting new treaties, can also be valuable in enhancing the internalization of investment treaties in the respective state as well as providing a better framework for the treaties’ implementation on a domestic level. The paper will thus elaborates on the notion, process and complexities of ‘internalization’ of investment treaties at a domestic level as one of the keys to understand how such treaties are implemented and observed as well as linking investment treaty renegotiation programs to internalization efforts.

EU-China comprehensive agreement on investment in the context of Chinese bilateral investment treaty program with the EU countries

EU-China negotiations for Comprehensive Agreement on Investment (CAI) have the potential to become one of the most important developments in international economic law as well as in investment treaty policymaking area. The sides have already had 18 rounds of negotiations discussing all major parts of the new BIT, such as the definitions, substantive and procedural protection standards, and still there seems a relatively long way to go for finalizing the formulations of the clauses. The first part of this article puts the China-EU CAI negotiations in historical, political and economic context for giving a background for the concurrent negotiations. The second part of the article provides discussion on substantive investment protection standards found in China-EU28 bilateral investment treaties (BITs) that are currently in force, for assessing the shortcomings of their formulations and pointing out the importance of concluding a unified BIT between China and EU for providing a higher level of legal clarity and certainty to their investors without compromising the regulatory powers of the state.

International Investment Arbitration in Laos: Large Issues for a Small State

Abstract Laos is no stranger to international investment arbitration. Despite its status as one of Southeast Asia’s least developed countries, it has had an Investment Law for more than two decades and is also a party to several bilateral and Association of South East Asian Nations (ASEAN)-related investment agreements. More recently, two investment treaty claims have been made against it, one of which has given rise to an award challenge that went all the way to Singapore’s highest court. This article will examine the history, evolution and current iteration of Laos’ relationship with international investment law and focus on the two investment treaty claims instituted against Laos. The article concludes with an appraisal of Laos’ need to maintain its investment treaty programme, despite the difficulties that may have arisen as a result of it being a respondent in investment treaty arbitrations.

International Investment Law and Practice in the Kingdom of Cambodia: An Evolving ‘Rule Taker’?

Abstract Cambodia has undertaken several initiatives to attract foreign direct investment (FDI), which has been growing rapidly in recent years, particularly through participating in Association of South East Asian Nations (ASEAN) investment agreements and free trade agreements (FTAs). This article first outlines Cambodia’s arbitration law and practice, its Law on Investment, the court system, problems relating to corruption, and foreign direct investment (FDI) patterns. It then surveys trends in Cambodia’s comparatively belated signing of investment treaties, and their main contents (including recent treaties with India and Hungary, adopting very different models). The article then discusses the only investment arbitration instituted against Cambodia, which was successfully defended, followed by a comment on the future prospects for Cambodia’s investment treaty program.

How did investor‐state dispute settlement get a bad rap? Blame it onNAFTA, of course

AbstractIn the short history of the US bilateral investment treaty (BIT) programme, there have been no instances of dispute settlement cases initiated against the United States by firms fromBITcountries. TheNAFTAexperience changed that. Where other studies have only hinted at the reasons forNAFTAcontroversies, this paper makes clear three causal factors: (i) changing patterns and intensity ofFDI, (ii) the application of those rules to developed countries amid those changingFDIpatterns and (iii) ambiguities inISDSrules themselves. The paper explores these and traces the ways in which lessons of theNAFTAhave been instrumental in changing the pursuit of investment protection agreements.BITs used to be uncontroversial, but theNAFTAfocused attention on reforms toISDSthat maintain the utility ofBITs in the governance ofFDI, without creating a legal structure for simply challenging the state.

The political motivations of the United States’ bilateral investment treaty program

ABSTRACTThe United States has signed 47 bilateral investment treaties (BITs) over the last three decades. The standard explanation for why the United States’ government signed those BITs is that it was motivated by a desire to promote the development of international investment law and to protect American capital invested abroad. An alternative explanation, however, is that the United States has largely used BITs as a foreign policy tool to improve relationships with strategically important countries in the developing world. This project uses qualitative and quantitative evidence to assess whether the United States was motivated to sign BITs based on investment considerations or political considerations. The qualitative evidence suggests that US executive branch officials viewed BITs as a potential way to cement and strengthen relationships with politically important countries. The quantitative evidence suggests that proxies for investment considerations – like trade and FDI flows – are weak predictors of US BIT formation, but that political considerations – like military aid and whether a country was formerly a communist state – are consistently statistically significant predictors. Taken together, the evidence supports the argument that political considerations are better predictors of the BITs the United States signed than investment considerations.

The Politics of the United Statess Bilateral Investment Treaty Program

The Untied States has signed 47 Bilateral Investment Treaties (BITs) over the last three decades. The standard explanation for why the United States’ government signed those BITs is that it was motivated by a desire to promote the development of international investment law and to protect American capital invested abroad. An alternative explanation, however, is that the United States has largely used BITs as a foreign policy tool to improve relationships with strategically important countries in the developing world. This project uses qualitative and quantitative evidence to assess whether the United States was motivated to sign BITs based on investment considerations or political considerations. The qualitative evidence suggests that U.S. executive branch officials viewed BITs as a potential way to cement and strengthen relationships with politically important countries. The quantitative evidence suggests that proxies for investment considerations — like trade and FDI flows — are weak predictors of U.S. BIT formation, but that political considerations — like military aid and whether a country was formerly a communist state — are consistently statistically significant predictors. Taken together, the evidence supports the argument that political considerations are better predictors of the BITs the United States signed than investment considerations.

Reconsidering the Motivations of the U.S. Bilateral Investment Treaty Program

Reconsidering the Motivations of the U.S. Bilateral Investment Treaty Program

India and Bilateral Investment Treaties--A Changing Landscape

This article examines the origin, evolution and current status of the Indian Bilateral Investment Treaty (BIT) programme. India launched its BITs programme in 1994 as part of its overall strategy of economic liberalization. To date, India has entered into more than 80 BITs. However, India’s BIT programme didn’t receive much attention until recently when numerous foreign investors brought BIT claims against India challenging various regulatory measures such as cancellation of telecom licences and imposition of retrospective taxes. This sudden gush of BIT claims has put the focus on India’s BIT programme. It has triggered concerns about Indian BITs not balancing investment protection with India’s regulatory power, thus compelling India to re-think its BIT programme.

Reconsidering the Motivations of the U.S. Bilateral Investment Treaty Program

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The Enigma of Enforceability of Investment Treaty Arbitration Awards in India

This paper critically discusses the issue of enforceability of investment treaty arbitration (ITA) awards against India under the Indian domestic law on arbitration. In this regard, the paper discusses the relevant provisions of the Indian arbitration law and its interpretations by the Indian judiciary to understand their ramifications for the enforcement of ITA awards against India. The paper also discusses the proposed amendments to the Indian arbitration law and its ramifications on ITA. The issue of enforcement of ITA awards in India has become important due to India’s gigantic international investment treaty programme where each treaty allows for investor-state treaty arbitration to settle disputes between investors and India. This issue has also become important in light of the growing observation that enforcement of foreign commercial arbitral awards in India is extremely difficult especially after the Venture Global engineering case. Thus, India is endeavouring to change the arbitration law so as to alter this perception. This paper argues that in spite of these proposed changes; enforcement of ITA awards may still face problems. Thus, the paper suggests that India should address the issue of enforceability of ITA awards given its gigantic investment treaty programme aimed at attracting foreign investment.

The Enigma of Enforceability of Investment Treaty Arbitration Awards in India

AbstractThis paper critically discusses the issue of enforceability of investment treaty arbitration (ITA) awards against India under the Indian domestic law on arbitration. In this regard, the paper discusses the relevant provisions of the Indian arbitration law and its interpretations by the Indian judiciary to understand their ramifications for the enforcement of ITA awards against India. The paper also discusses the proposed amendments to the Indian arbitration law and its ramifications on ITA. The issue of enforcement of ITA awards in India has become important due to India's gigantic international investment treaty programme where each treaty allows for investor-state treaty arbitration to settle disputes between investors and India. This issue has also become important in light of the growing observation that enforcement of foreign commercial arbitral awards in India is extremely difficult especially after the Venture Global engineering case. Thus, India is endeavouring to change the arbitration law so as to alter this perception. This paper argues that in spite of these proposed changes; enforcement of ITA awards may still face problems. Thus, the paper suggests that India should address the issue of enforceability of ITA awards given its gigantic investment treaty programme aimed at attracting foreign investment.

Living Weapons: Biological Weapons and International Security

In the summer of 1996, as a (much younger) Army infectious disease physician, I headed off to a new assignment with the US Army Medical Research Institute of Infectious Diseases (USAMRIID) at Fort Detrick, Maryland. It was a heady time to be entering the niche field of biodefense. Five years before the events of 9/11 and the subsequent “Amerithrax” attacks would become an integral part of the world’s consciousness, USAMRIID was (with the exception of a few veterinary laboratories studying anthrax, brucellosis, Q fever, and similar zoonotic diseases) the “only game in town.” The institute had quietly wrestled with issues of medical biodefense since the United States shuttered its old offensive biowarfare program in 1969. As an assignee to its division of operational medicine, I was enamored of my ability to master the sparse literature and science of the field and soon became an “expert.” Such luxurious self-confidence is no longer warranted (if it ever was) or even possible. The field has, for better or worse, burgeoned in the decade since 9/11. Hundreds of texts and thousands of scientific articles now address every aspect of the daunting problems of biowarfare and bioterrorism defense, and mastery of such material is beyond the grasp of any one scientist, diplomat, or arms-control expert. Fortunately, several good reviews exist to guide those wishing to gain a basic understanding of these complex issues. Was yet another treatise thus necessary? My initial reaction was an emphatic “no,” until I read Gregory Koblentz’s book, Living Weapons. Koblentz, deputy director of a graduate degree program in biodefense at George Mason University, tackles the myriad issues surrounding biodefense from a policy perspective. In so doing, however, he puts forth a readable, succinct, yet thorough review of the field. After a crisp introduction to the history of biowarfare, he focuses on the seemingly insurmountable obstacles to nonproliferation efforts aimed at state-sponsored weapons programs: treaty compliance verification, program oversight, and intelligence. He then addresses the parallel problems posed by nonstate actors and terrorists and closes with a prescription for reducing the dangers of uncontrolled biology. A tour de force of bureaucratic hurdles and treaty-compliance issues would hardly seem compelling reading for all but a few die-hard policy wonks. Not so in the case of Koblentz’s text. Even though his penchant for frequent summary makes for some redundancy, he provides an extremely readable, yet comprehensive, compendium of the implications for national security posed by wayward biology. Moreover, he does so without the ideological bias often found in other treatises on this subject. Specifically, Koblentz delivers a detailed review of the United Nations Special Commission inspections in Iraq and the lessons they provide. He similarly deals with the now-discredited 2002 National Intelligence Estimate, which provided much of the impetus for President George Bush’s decision to invade Iraq. Yet, he analyzes these efforts and their implications for diplomats, policymakers, and arms-control experts without descending into partisan politics or anti-US demagoguery. In summary, Living Weapons is a thoroughly readable book, filled with enough anecdotes to capture the reader’s interest. But, more importantly, it provides a disturbing yet refreshing look at the myriad obstacles confronting those who would play a role—whether political, diplomatic, or scientific—in attempting to rein in the use of biology in war and terror. It is a must read for graduate students and experts alike.

Investment Treaty Arbitration—An Australian Perspective

Broadly speaking, investment treaties establish clear rules on the scope of investment protection and the treatment that states must provide to foreign investment in their territories. In addition, they establish a framework for the resolution of investment disputes through arbitration between the foreign investor and the state. This article explores the scope of investment treaties, and disputes relating thereto, with particular reference to Australia’s investment treaty programme. This article is based on a series of presentations delivered by Freshfields Bruckhaus Deringer and Blake Dawson Waldron in Perth, Melbourne, Sydney, and Brisbane over the period November 17–22, 2006.

Defining Investment and Investor: Who is Entitled to Claim?

WITH THE benefit of the perspective of both sides of the table – having served both as a government official responsible for investment claims and as a private lawyer advising in this field – I can say with confidence that the definition of ‘investor’ and ‘investment’ is the key to making the most of international investment agreements. Why is it the key? From the perspective of a capital exporting country, the definition identifies who the country's constituents are for purposes of investment policy: who are the categories of persons, industries and groups that will benefit from the investment treaty programme. From the perspective of a capital importing country, the definition identifies who the country's clients are for purposes of investment policy: who are the persons, industries and groups that the country wants to attract in order to increase foreign investment. From the perspective of investors, the definition identifies how the investment holdings may be structured in order to maximise protection of the investment under investment treaties. This sounds rather like BIT-shopping and it is – a subject I will return to. In the lines that follow, I first provide an overview of the definitions of investment and investor in contemporary treaties. I then examine the policy implications of these definitions in the current investment environment. Investment treaties are premised on two elemental propositions: foreign investment tends to spur economic development, and fundamental legal protections tend to encourage and promote foreign investment.1 It is equally elemental that capital is fungible and investment of capital takes a multitude of forms in the world today. In recognition of this reality, the definitions of ‘investment’ in contemporary treaties tend to be broad and open-ended, with a list of specific types of covered investments which is indicative rather than definitive. Recent UK treaties define …

R&D FOR NUCLEAR TEST BAN OUTLINED

The critical role of science in arms control was brought to light once again earlier this month by the release of a timely report on the fundamental research needed to support the monitoring of a pending global ban on nuclear weapons testing. The report also brings out the complexities of the scientific challenges involved. The treaty is the Comprehensive Test Ban Treaty (CTBT). It likely will be submitted by the White House to the Senate within the next few months for ratification. The report, commissioned by the Nuclear Treaty Program Office of the Department of Defense, was prepared by a National Research Council (NRC) panel chaired by University of California, Santa Cruz, seismologist Thome Lay. A central focus of the ratification debate will certainly be the issue of whether the science and technology of monitoring is good enough to ensure that nobody will be able to endanger the U.S. by ...