Bilateral investment treaty

A bilateral investment treaty (BIT) is an agreement establishing the terms and conditions for private investment by nationals and companies of one state in another state. This type of investment is called foreign direct investment (FDI). BITs are established through trade pacts. A nineteenth-century forerunner of the BIT is the friendship, commerce, and navigation treaty (FCN).[1]

Most BITs grant investments made by an investor of one Contracting State in the territory of the other a number of guarantees, which typically include fair and equitable treatment, protection from expropriation, free transfer of means and full protection and security. The distinctive feature of many BITs is that they allow for an alternative dispute resolution mechanism, whereby an investor whose rights under the BIT have been violated could have recourse to international arbitration, often under the auspices of the ICSID (International Center for the Settlement of Investment Disputes), rather than suing the host State in its own courts.[2]

The world's first BIT was signed on November 25, 1959 between Pakistan and Germany.[3] There are currently more than 2500 BITs in force, involving most countries in the world.[4] Influential capital exporting states usually negotiate BITs on the basis of their own "model" texts (such as the US model BIT).[5]

Contents

Criticism

Political movements and NGOs have spoken against the use of BITs, stating that they are mostly designed to protect the foreign investors and do not take into account obligations and standards to protect the environment, labour rights, social provisions or natural resources. Moreover when such clauses are agreed upon the formulation is legally very imprecise, enabling investors to take great liberties and making it difficult for host states to predict the limits of their rights and obligations.[6]

BITs involving the U.S.

As of 2009:[7]

In force

  1.  Albania: signed January 11, 1995, entered into force January 4, 1998
  2.  Argentina: signed November 14, 1991, entered into force October 20, 1994
  3.  Armenia: signed September 23, 1992, entered into force March 29, 1996
  4.  Azerbaijan: signed August 1, 1997, entered into force August 2, 2001
  5.  Bahrain: signed September 29, 1999, entered into force May 30, 2001
  6.  Bangladesh: signed March 12, 1986, entered into force July 25, 1989
  7.  Bolivia: signed April 17, 1998, entered into force June 6, 2001
  8.  Bulgaria: signed September 23, 1992, entered into force June 2, 1994
  9.  Cameroon: signed February 26, 1986, entered into force April 6, 1989
  10.  Democratic Republic of the Congo (Kinshasa): signed August 3, 1984, entered into force July 28, 1989
  11.  Republic of the Congo (Brazzaville): signed February 12, 1990, entered into force August 13, 1994
  12.  Croatia: signed July 13, 1996, entered into force June 20, 2001
  13.  Czech Republic: signed October 22, 1991, entered into force December 19, 1992
  14.  Ecuador: signed August 27, 1993, entered into force May 11, 1997
  15.  Egypt: signed March 11, 1986, entered into force June 27, 1992
  16.  Estonia: signed April 19, 1994, entered into force February 16, 1997
  17.  Georgia: signed March 7, 1994, entered into force August 17, 1997
  18.  Grenada: signed May 2, 1986, entered into force March 3, 1989
  19.  Honduras: signed July 1, 1995, entered into force July 11, 2001
  20.  Jamaica: signed February 4, 1994, entered into force March 7, 1997
  21.  Jordan: signed July 2, 1997, entered into force June 12, 2003
  22.  Kazakhstan: signed May 19, 1992, entered into force January 12, 1994
  23.  Kyrgyzstan: signed January 19, 1993, entered into force January 12, 1994
  24.  Latvia: signed January 13, 1995, entered into force December 26, 1996
  25.  Lithuania: signed January 14, 1998, entered into force November 22, 2001
  26.  Moldova: signed April 21, 1993, entered into force November 25, 1994
  27.  Mongolia: signed October 6, 1994, entered into force January 1, 1997
  28.  Morocco: signed July 22, 1985, entered into force May 29, 1991
  29.  Mozambique: signed December 1, 1998, entered into force March 3, 2005
  30.  Panama: signed October 27, 1982, entered into force May 30, 1991. Amendment: signed June 1, 2000, entered into force May 14, 2001
  31.  Poland: signed March 21, 1990, entered into force August 6, 1994
  32.  Romania: signed May 28, 1992, entered into force January 15, 1994
  33.  Senegal: signed December 6, 1983, entered into force October 25, 1990
  34.  Slovakia: signed October 22, 1991, entered into force December 19, 1992
  35.  Sri Lanka: signed September 20, 1991, entered into force May 1, 1993
  36.  Trinidad and Tobago: signed September 26, 1994, entered into force December 26, 1996
  37.  Tunisia: signed May 15, 1990, entered into force February 7, 1993
  38.  Turkey: signed December 3, 1985, entered into force May 18, 1990
  39.  Ukraine: signed March 4, 1994, entered into force November 16, 1996
  40.  Uruguay: signed November 4, 2005, entered into force November 1, 2006

Not yet ratified

  1.  Belarus: signed January 15, 1994, not yet ratified
  2.  El Salvador: signed March 10, 1999, not yet ratified
  3.  Haiti: signed December 13, 1983, not yet ratified by Haiti or the U.S.
  4.  Nicaragua: signed July 1, 1995, not yet ratified by the U.S.
  5.  Russia: signed June 17, 1992, not yet ratified by Russia
  6.  Uzbekistan: signed December 16, 1994, not yet ratified
  7.  Pakistan: negotiations announced September 28, 2004, began February 7, 2005

Note: Many countries that do not have BITs with the U.S. are instead covered by free trade agreements.

Notes

  1. ^ See W. Michael Reisman et al.,"International Law in Comparative Perspective" (2004), p. 460.
  2. ^ See Jarrod Wong, "Umbrella Clauses In Bilateral Investment Treaties: Of Breaches of Contract, Treaty Violations, and the Divide Between Developing and Developed Countries In Foreign Investment Disputes", George Mason Law Review (14 Geo. Mason L. Rev. 135) (2007).
  3. ^ "International Investment", by Americo Beviglia Zampetti and Pierre Sauve, in Research Handbook in International Economic Law (E. Elgar, 2007), p215; http://www.bilaterals.org/article-print.php3?id_article=717
  4. ^ See Rudolf Dolzer and Christoph Schreuer, Principles of International Investment Law, Oxford, 2008, p. 2. Also see UNCTAD, World Investment Report (2006) XVII, 26.
  5. ^ http://www.ustr.gov/trade-agreements/bilateral-investment-treaties (discusses model BITs). See also INTERNATIONAL INVESTMENT INSTRUMENTS: A COMPENDIUM VOLUME XIV, 01/03/05 (UNCTAD/DITE/4(Vol.XIV)), Part II, for the Canadian model BIT.
  6. ^ Protest against EU investment policy Transnational Institute
  7. ^ http://tcc.export.gov/Trade_Agreements/Bilateral_Investment_Treaties/index.asp Trade Compliance Center

See also

External links