Suchergebnisse

This article presents the situation of 'Missing Investment Treaties' (MITs), defined as those International Investment Agreements (IIAs) that have been concluded by States, but their texts (and in some cases their existence) are not publicly available or incomplete. In order to determine the number of MITs, we examined the text and language availability of IIAs concluded by countries, that are publicly available, and we complemented that information with country-specific searches from international, governmental and private sources. In turn, the article explores possible explanations to this State's behaviour, using the following questions as guidelines: Why would countries sign agreements that are supposedly negotiated to promote, protect or liberalise foreign investment without making those texts available? If a text of an IIA is publicly available, does it correspond to the language of both contracting parties, only one of them, or of a third country? Is it possible to achieve IIAs' objectives if the text of the treaty is not available, or is it available only in one language? Might there be other reasons to sign these agreements?

Governments are pursuing substantive and procedural reform of the international investment regime in recognition that there are fundamental, systemic, and interrelated concerns about current approaches to investment governance, and that current approaches have failed to meet their purported objectives. A vast majority of the 1,023 publicly-known treaty-based claims have been brought under "old-generation" treaties. In 2018, for example, 60% of such claims were brought under treaties originally concluded in the 1990s or earlier, and all but one was filed under a pre-2011 treaty. These old-generation treaties include vague and far-reaching obligations for states, generally do not include any reference to investor responsibilities (even in non-binding terms) or obligations, and rarely include provisions that seek to meaningfully reaffirm and protect the ability of states to regulate without having to pay compensation for adoption or enforcement of legitimate regulatory measures. Effective environmental, human rights, gender, health, labor, and other public interest provisions are generally absent from these agreements. Without provisions that effectively protect regulatory space and flexibility, and meaningfully advance sustainable development objectives of states parties, respondent host states have been left exposed to costly investor-state dispute settlement (ISDS) proceedings and claims challenging public interest measures. Investor claimants have also relied on investment treaties and ISDS to make threats of claims in order to distort government measures or conduct in foreign investors' favor. In the context of COVID-19, for example, some law firms seized on the pandemic to advise multinationals on strategies for relying on investment treaties and ISDS to bring claims against governments on the basis of COVID-related measures.

We analyze the effect of bilateral investment treaties (BITs) on bilateral foreign portfolio investment in equity and debt securities. We find that expropriation risk and the level of a BIT's investor protection are complementary. Applying a Poisson Pseudo-Maximum-Likelihood model to a panel of 60 home and 39 host countries from 2002 to 2017, we find that host countries receive 40% more bilateral equity investment when they protect foreign investors with a BIT. This effect almost doubles when investment protection of BITs is strong, and the political risk of the host country is high.

This is a major work investigating China's bilateral investment treaties (BITs) regime through various approaches including textual analysis, case study, comparative study and empirical study. This book tries to unveil some of the puzzles in Chinese BITs. The general consensus is that the evolution of China's BIT regime has its underlying logic, which follows an investment liberalization trend and fits China's changing role from a key capital-importing state to a major capital-exporting state. A similar trend is evident in Chinese BIT-making and BIT policy. This book investigates these theoretical assumptions and looks into some of the loopholes in Chinese BITs.

This Perspective argues that investment law is ripe for a paradigm shift away from pure capital protection. Rather, investment law should be recognized as part of a comprehensive global economic governance system for ensuring justice and the rule of law, in this case in the allocation of investment capital.