The Political Economy of a Bilateral Investment Treaty

1998 ◽  
Vol 92 (4) ◽  
pp. 621-641 ◽  
Author(s):  
Kenneth J. Vandevelde
Keyword(s):  
Political Economy ◽  
International Law ◽  
International Investment ◽  
The Political ◽  
Bilateral Investment Treaties ◽  
Bilateral Investment Treaty ◽  
Investment Treaty ◽  
Investment Treaties

One of the more remarkable developments in international law in the mid-1990s is not what it appears to be. The massive and sudden proliferation of bilateral investment treaties (BITs), now constituting a network of more than thirteen hundred agreements involving some 160 states, appears to reflect die triumph of liberal economics in the sphere of international investment. In fact, however, it constitutes only a momentary convergence of nationalist interests. If the BITs are to construct the liberal international investment regime they seem to promise, then they must be modified in important and substantial ways.

scholarly journals Bilateral Investment Treaties and Sovereignty: An Analysis with Respect to International Investment Law

2016 ◽  
Vol 5 (2) ◽  
pp. 1-8
Author(s):  
Joseph Thaliath
Keyword(s):  
International Law ◽  
Present Situation ◽  
Economic Globalization ◽  
International Investment ◽  
International Level ◽  
Bilateral Investment Treaties ◽  
International Investment Law ◽  
Investment Law ◽  
Investment Treaties ◽  
Market Relations

International law as a governing institution, has gained prominence, with the advent of globalization. This is of specific relevance for the governance of state-market relations. Nowhere has this been as pronounced as in the international investment regime. Bilateral Investment Treaties (BITs) have today become some of the most potent legal tools underwriting economic globalization. These are established through pacts, which have to be adhered to, through all stages of performance of the treaty. This paper argues against the shift of bilateral investment treaties (BIT) from a pro-sovereign, to a pro-investor approach. It does so by explaining the present situation of bilateral investment treaties while pointing out their disadvantages. The basic idea of a BIT is questioned in order to understand its purpose and examines its failure in achieving the same. The partial approach towards the investors by the tribunals, is frowned upon and the lack of justifications and defenses on the part of the state is reviewed. Modest suggestions on improving this situation are provided by using cases decided by tribunals at an international level, taking up the example of Argentina.

scholarly journals Putting the MFN Genie Back in the Bottle

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 60-63
Author(s):  
Michael Waibel
Keyword(s):  
International Law ◽  
International Investment ◽  
Third Party ◽  
Most Favored Nation ◽  
Trade Regime ◽  
Investment Treaty ◽  
Limited Role ◽  
Investment Treaties ◽  
Text Context

This essay underscores the importance of background understandings in general international law for interpreting brief, open-ended clauses such as most favored nation (MFN) clauses. Contrary to Simon Batifort and J. Benton Heath's claim, I suggest that often interpreters of MFN clauses cannot limit themselves to the text, context, and preparatory materials of a specific MFN clause. A common international negotiating technique, including for investment treaties, is to rely on the general background understanding of what a clause typically means in international law—its default meaning. I also argue that MFN clauses have played a surprisingly limited role in the international investment regime to date. In the main, they have functioned as a stepping stone for procedural and substantive guarantees found in third-party investment treaties. This use, and the limited role of MFN clauses in investment treaty awards, stands in sharp contrast to MFN clauses in the trade regime.

scholarly journals Cortec Mining Kenya Limited, Cortec (Pty) Limited, and Stirling Capital Limited v. Republic of Kenya

2019 ◽  
Vol 113 (3) ◽  
pp. 574-581
Author(s):  
Lorenzo Cotula ◽  
James T. Gathii
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Environmental Law ◽  
International Investment ◽  
Arbitral Tribunal ◽  
Public International Law ◽  
Bilateral Investment Treaty ◽  
Investment Treaty ◽  
Legal Implications ◽  
Mining Project

In Cortec v. Kenya, an investor-state arbitral tribunal established under a bilateral investment treaty (BIT) held it lacked jurisdiction to hear a dispute concerning a mining project that the tribunal found did not comply with domestic environmental law. The award raises significant issues of public international law, including how questions of investor compliance are considered in investor-state dispute settlement and the legal implications of investor noncompliance. The issues resonate with wider debates about balancing investor rights and obligations in the international investment regime.

The Republic of Ghana and Bilateral Investment Treaties: A Burgeoning Expert?

2020 ◽  
Author(s):  
Gracious Avayiwoe
Keyword(s):  
International Investment ◽  
Current Status ◽  
Bilateral Investment Treaties ◽  
Investment Treaty ◽  
Pan African ◽  
International Investment Agreements ◽  
Investment Treaties ◽  
The Republic ◽  
Investment Agreements

Abstract In this note, I categorize and review the bilateral investment treaties (BITs) concluded by the Republic of Ghana. I identify the current status of Ghana in the BIT sphere as being that of neither a novice nor a fully-fledged expert. The country is, nevertheless, progressively exhibiting some level of innovation and negotiation influence. Notwithstanding, all generations of its BITs remain very broad in scope, and, also, share laconic and vaguely-worded provisions. Furthermore, contemporary models of international investment agreements (IIAs) as contained in Ghana’s latest BIT—the earlier generations having lacked such innovations—is not as robust as those in emerging IIAs of Africa. Towards sustainability and systemic coherence of the BITs and the new African IIA paradigm, Ghana, certainly, needs to reform its existing BITs and reorient its future investment treaty practice. In the interim, I propose the Pan-African Investment Code (PAIC) as the benchmark.

scholarly journals On Foreign Investor ‘Privilege’ and the Limits of the Law: A Reply to Ivar Alvik

2020 ◽  
Vol 31 (1) ◽  
pp. 313-319
Author(s):  
Jürgen Kurtz
Keyword(s):  
Political Economy ◽  
International Investment ◽  
The Political ◽  
Definitive Answer ◽  
State Action ◽  
Investment Treaty ◽  
Legal Principle ◽  
Internal Problem ◽  
The Law ◽  
Domestic Companies

Abstract International investment treaties are structurally characterized by inherent asymmetry in the (non-relative) legal protections extended to foreign investors vis-à-vis domestic companies and nationals. For many lawyers, ‘foreign privilege’ is deeply problematic as it violates a foundational legal principle – namely, equality before the law. Yet law and law alone cannot always offer a definitive answer of this sort. At the very least, legal hypotheses should be rigorously tested against insights from other disciplines that can offer sharp analytical light on the complex contours of a given phenomenon. In this reply, I explore the political economy of host state policy as it is formed against three categories of foreign direct investment (FDI). Conceptually (and empirically), this political economy matrix reveals sharply varying levels of risk of hostile state action against distinct forms of FDI. To be sure, this analysis alone does not justify the traditional and expansive model of bilateral investment treaty protections. Yet, at least for some categories, this political economy case reveals an internal problem that is difficult (if not impossible) for the state itself to resolve, and, thus, it may well be rational for such a state to leverage international norms to extend qualified extra-domestic priority to foreign actors.

1 A Global Regime for Investment

2021 ◽  
Author(s):  
Salacuse Jeswald W
Keyword(s):  
International Law ◽  
Foreign Investment ◽  
International Investment ◽  
Bilateral Investment Treaties ◽  
International Regime ◽  
International Investment Agreements ◽  
Global Regime ◽  
Investment Treaties ◽  
Investment Agreements

This chapter provides an overview of investment treaties. Investment treaties, often referred to as ‘international investment agreements’ (IIAs), are essentially instruments of international law by which states (1) make commitments to other states with respect to the treatment they will accord to investors and investments from those other states, and (2) agree to some mechanism for enforcement of those commitments. A fundamental purpose of investment treaties, as indicated by their titles, is to protect and promote investment. International investment treaties consist principally of three types: (1) bilateral investment treaties, commonly known as ‘BITs’; (2) bilateral economic agreements with investment provisions; and (3) other investment-related agreements involving more than two states. The chapter then considers the significance of investment treaties and argues that together they constitute an international regime for foreign investment.

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