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BIT by BIT

In the past, traditional diplomatic protections and customary international law seemed to provide inadequate and uncertain protection for foreign investments. In the middle of the twentieth century, countries in need of investment by citizens of other countries, and countries whose citizens had resources to invest and a willingness to invest in foreign enterprises, devised bilateral investment treaties (BITs) or traités bilatéraux d’investissement (TBIs) to protect the rights of foreign investors on terms the enterprises in need of investment could accept. By promoting investment by citizens of one country in enterprises in a different country, BITs solidify diplomatic ties between the two countries (Mark Jacoby, “Investments, Bilateral Treaties,” MPEPIL 2011).

The Federal Republic of Germany and Pakistan signed the very first BIT in 1959. For almost 40 years, the number of BITs concluded each year rose steadily with a sharp upswing in the mid-1990s and the early 2000s. At the end of 2012, there were 2,857 BITs and 339 “other” international investment agreements (IIAs). Despite the healthy total number of BITs, the number concluded in 2012 was the lowest in two decades. While the pace at which countries are signing BITs has slowed, research interest in BITs has not waned. In fact, a spate of new scholarship on BITs and international investment law generally has appeared in the past five years, including articles and books by McGill’s Andrea Bjorklund. Why such scholarly interest in a form apparently in decline?

UNCTAD – World Investment Report 2013

UNCTAD – World Investment Report 2013

Litigation over BITs currently in force provides one answer. Litigants and other persons affected by BITs are questioning and disputing provisions in new and existing BITs. Canada, which calls its BITs Foreign Investment Promotion and Protection Agreements (FIPAs) in English or accords de promotion et de protection de l’investissement étranger (APIE) in French (see Bilateral Investment Treaties: A Canadian Primer (Canadian Council for International Co-operation, April 2010; French)) has continued to increase its use of new BITs in recent years (with FIPAs concluded, signed, or brought into force in 2013 with a record 10 countries, including seven African ones), even as disputes over BITs in force have arisen.

Canada-Cameroon BIT signing; photo from DFATD

Canada-Cameroon BIT signing; photo from DFATD

In Hupacasath First Nation v. Canada, the HFN of Vancouver Island argued that the federal government violated the constitution when it signed the Canada-China FIPA without consulting the HFN. The HFN said the investment treaty would potentially override Indigenous treaty rights and otherwise tilt the balance of power in questions of resource management from affected communities to expectant corporations.

On August 26, 2013, Chief Justice Crampton held that the HFN’s case against the FIPA was too speculative. According to one commentator, the Federal Court of Canada failed to appreciate “a wealth of Canadian and international evidence that investment tribunals are having an impact on governance by deciding important public policy questions outside of national courts or the reach of national constitutions.” The HFN has appealed the decision to the Supreme Court of Canada. A decision on the appeal is expected this June.

Countries are starting to be wary of entering into new BITs because of unfavorable results in investment claims disputes. The size and frequency of recent arbitral awards have caused them to question if BITs are meeting their investment promotion and strategic diplomatic aims. Countries are reexamining BITs and moving toward regional trade agreements and other IIAs with investment chapters.

These IIA negotiations themselves have been contentious. Some countries have opposed inclusion of investor-state dispute settlement (ISDS) provisions in the IIAs. For example, adding an ISDS section to the 12-country Trans-Pacific Partnership (TPP) agreement (Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States, Vietnam) has been an issue. NGOs strongly opposed the investment chapter in the EU-India free trade agreement (FTA). Litigants have filed record numbers of new ISDS cases pursuant to international investment agreements. The International Centre for the Settlement of Investment Disputes (ICSID) has 189 pending disputes. The disputes ensure the continued importance of BITs, even as countries adopt fewer BITs each year.

Countries are also trying to get out of their existing BITs. For example, Indonesia recently terminated its BIT with the Netherlands and may terminate all its BITs. Hogan Lovells’ Simon Nesbitt et al. commented on March 26, 2014 in Lexology:

While certain countries have terminated individual BITs, termination of all BITs would be unprecedented. South Africa recently decided to review all of its BITs, to terminate its BITs with certain EU countries, and to consider a new investment policy that eliminates recourse to international arbitration and certain substantive investment protections. Further, certain Latin American countries, such as Argentina, Ecuador and Venezuela have also taken steps to curtail their international investment protection regimes.

Researching BITs

In order to review a BIT to see if it still meets a country’s strategic needs, and to decide whether to revise or terminate it, the decision maker will need to look at the BIT or model BITs. Several research guides provide information about how to locate BITs and commentaries re, including Marci Hoffman & Mary Rumsey’s International and Foreign Legal Research: A Coursebook (2d ed., 2012), Georgetown Law Library’s International Investment Law Research Guide, Yale’s International Investment Law, the Peace Palace Library’s Foreign Direct Investment Research Guide, the British and Irish Association of Law Librarians (BIALL) wiki, NYU Law Library’s International Investment page, and International Arbitration between Foreign Investors and Host States (Investor-State Arbitration) via GlobaLex. Articles on BITs may be found in sources such as the ICSID Review: Foreign Investment Law Journal and the Yearbook on International Investment Law and Policy.

Lists of BITs

The International Centre for the Settlement of Investment Disputes (ICSID) BITs database includes information provided by governments about bilateral investment treaties going back to the early 1970s. The data includes signature and entry into force dates. ICSID’s Investment Treaties looseleaf service also has regularly updated alphabetical and chronological lists of BITs (most recent update through 13 January 2014). UNCTAD has lists of BITs for 180 economies with information about partner country, date of signature, and date of entry into force. These lists include BITs concluded as at 1 June 2013.

The UNCTAD’s BITs database may not be as up-to-date as a country’s own BITs site. For example, UNCTAD’s site doesn’t include information about Canada’s most recent BIT with Cameroon, signed on 3 March 2014. Canada’s Department of Foreign Affairs, Trade and Development (DFATD) site does.

Texts of BITs

Bilateral investment treaties are published in standard national and international treaty sources (such as a country’s treaty series, website, or the United Nations Treaty Series (UNTS)), at websites of ministries of trade and other government offices, in specialized databases, and subject compilations. So, if you’re looking for the text of a BIT, you have many options. The best first place to check for a BIT is the United Nations Conference on Trade and Development (UNCTAD) Investment Instruments Online: Bilateral Investment Treaties. It’s an easy to access, free, and publicly available resource. You can search for an individual country’s BIT with one other country or all countries. UNCTAD’s BITs database includes official texts from a country’s website or print publication. Note that the UNCTAD site may include BITs which are no longer in force or are not yet in force.

The Kluwer Arbitration subscription database has the full text of BITs for 180 jurisdictions with dates of signature and entry into force. For Canada, the source for the BIT texts in Kluwer Arbitration appears to be the Penn State Institute of Arbitration Law and Practice. Kluwer Arbitration does not yet include the recently signed Canada-Cameroon BIT. Over 2,200 BITs are integrated in KluwerArbitration.com per Wolters Kluwer Law & Business’ Academic Account Manager, Sean Hearon. Another subscription service to consult for BIT texts is Oxford University Press’ Investment Claims. It includes 1,277 BITs in English per OUP Editor-in-Chief, John Louth.

The Organization of American States (OAS) Foreign Trade Information System / Sistema de Información sobre Comercio Exterior (SICE) includes bilateral investment treaties for 34 countries in their original languages (Spanish, French, English) with some English translations. The Permanent Court of Arbitration has 32 BITs in PDF that mention the PCA. Texts are from the UNCTAD Investment Instruments Online, International Legal Materials (ILM), the United Nations Treaty Series Online, and individual government sources.

DFATD collects full texts of Canada’s Free Trade Agreements (FTAs), Foreign Investment Promotion and Protection Agreements (FIPAs), and other agreements at its “Negotiations and Agreements by Country” webpage (Path: Trade>Opening New Markets>Agreements by Country (A to Z List)). The texts include Canadian Treaty Series (CTS) citations when available. For example, the FIPA/BIT with Poland which entered into force 22 November 1990, “ Agreement between the Government of Canada and the Government of the Republic of Poland for the Promotion and Reciprocal Protection of Investments,” is here with the reference: E101511 – CTS 1990 No. 43. The Canada-Kuwait FIPA which entered into force on 17 February 2014 has no CTS citation (the print CTS ceased as of April 2014).

U.S. Bilateral Investment Treaties are available at the Department of Commerce’s Trade Compliance Center (TCC). Recent BITs (with Rwanda and Uruguay) can be found at the Office of the United States Trade Representative (USTR) website.

ICSID’s print looseleaf service, Investment Promotion and Protection Treaties (Oceana/Oxford University Press)(also called Investment Treaties) includes the texts of BITs for over 165 countries from 1959 to the present. Researchers may find older BITs in UNCTAD’s 14-volume, International Investment Instruments: A Compendium (published 1996-2005 in print, and also digitized).

Model BITs

Bilateral investment treaties tend to have standard components such as a preamble, provisions for transparency, exceptions and safeguards (concerning public health, environmental protection, national security), and dispute resolution sections. Some are modeled after sample BITs. .C. Professor Andrew Newcombe’s Investment Treaty Arbitration site links to the major model BITs as well as the UNCTAD BITs database and national treaty websites for 24 jurisdictions such as Argentina, Canada, Japan, and Mexico:

Conclusion

The adoption of new BITs has slowed, but BITs already in force have considerable effect on the international investment regime. Fortunately, UNCTAD and other basic national and international treaty sources ease the difficulty of finding bilateral investment treaties. And continued commentary, empirical research, and conferences such as “BIT by BIT: Can Bilateral Investment Treaties Protect Labor and Environmental Rights in the 21st Century?” help in understanding and clarifying the issues thereon.

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Comments

  1. Ginger Goodwin

    Very good summary and according to Van Harten (Osgoode Hall Law School) who wrote “Perceived Bias in Investment Treaty Arbitration” writes that his“article has presented a critique of the current system of investment treaty arbitration on the grounds that it does not ensure the rule of law based on an impartial and independent adjudicative process for the final determination of fundamental matters of public law”. Seems pretty clear as to the reason for the decline of the BITs.

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