Balance Between Investment Protection and Sustainable Development in BITs

2014 ◽  
Vol 15 (5-6) ◽  
pp. 809-826
Author(s):  
Anne-Juliette Bonzon
Keyword(s):  
Sustainable Development ◽  
Free Trade ◽  
Dispute Settlement ◽  
Free Trade Agreements ◽  
Trade Agreements ◽  
Dispute Settlement Mechanism ◽  
Foreign Investors ◽  
Investment Protection ◽  
Procedural Rights ◽  
Settlement Mechanism

The objective of this article is to examine how substantive and procedural rights granted to foreign investors by Swiss bits are gradually being balanced with social and environmental provisions. Switzerland has enjoyed a long bit practice, as it signed its first treaty with Tunisia fifty years ago. Swiss bits rely on the post-establishment model and include usual standards of treatment. From 1981, they also systematically provide for a dispute settlement mechanism for disputes arising between an investor and a host State. Since the Switzerland – El Salvador bit in 1994, sustainable development concerns have been expressly inserted in some Swiss bits, as well as in several recent free trade agreements. Provisions on this theme are however far from being systematic in Switzerland’s bit practice and essentially remain declaratory in nature. The trend towards wider inclusion of sustainable development provisions in bits still faces several practical and political challenges.

scholarly journals The rcep and Its Investment Rules: Learning from Past Chinese ftas

2017 ◽  
Vol 3 (2) ◽  
pp. 160-181
Author(s):  
Heng Wang
Keyword(s):  
Free Trade ◽  
Dispute Settlement ◽  
Free Trade Agreements ◽  
Trade Agreements ◽  
Medium Term ◽  
Investment Protection ◽  
Investment Liberalization ◽  
Economic Partnership ◽  
Regional Comprehensive Economic Partnership ◽  
Early Harvest

Abstract China’s free trade agreements (ftas) reveal malleability as the most striking feature. The paper analyzes the following questions: what is the trend of China’s fta approach to investment concerning malleability? Is China a rule follower, shaker or maker? How may China approach the Regional Comprehensive Economic Partnership (rcep) regarding investment? It argues first that the malleability will probably expand from investment protection to investment liberalization. China converges with deep ftas regarding investment protection and may incrementally move to investment liberalization. Second, increased malleability of China’s ftas exists in regulatory autonomy and investor-state dispute settlement. Third, China is likely to be a rule shaker in the short to medium term, and become a rule maker later if challenges are addressed. Its approach may evolve from selective adaption to selective innovation. Finally, the rcep may adopt low-level investment rules and an early harvest approach due to, inter alia, existing agreements and the nature of mega fta.

Three Salient Issues of the New Comprehensive Free Trade Agreements

2017 ◽  
Author(s):  
Stefan Griller
Keyword(s):  
Dispute Settlement ◽  
Free Trade Agreements ◽  
Trade Agreements ◽  
Settlement System ◽  
Investment Protection ◽  
National Courts ◽  
System P ◽  
Critical Account ◽  
Dispute Settlement System ◽  
The Relationship

The author argues that the mega-regionals are incorporating WTO standards on the removal of technical barriers to trade (TBT), but do not go much further. Consequently, domestic policies on consumer or environmental protection are inevitably affected. However, in this regard, the mega-regionals would not result in a substantive change. By contrast, the relationship between the removal of TBT and investment protection standards is qualified as poorly balanced, unclear, and creating fresh problems. This includes the possibility that damages might be awarded even in cases where the party to the agreement has correctly used its ‘right to regulate’. Moreover, a critical account of the investor-state dispute settlement system foreseen is offered. It is presented as unnecessarily complex, and creating unbalanced advantages for investors. The better alternative would be integrating national courts into the system.

scholarly journals What Do Trade Agreements Really Do?

2018 ◽  
Vol 32 (2) ◽  
pp. 73-90 ◽  
Author(s):  
Dani Rodrik
Keyword(s):  
Free Trade ◽  
Multinational Firms ◽  
Dispute Settlement ◽  
Market Access ◽  
Health And Safety ◽  
Free Trade Agreements ◽  
Trade Agreements ◽  
Pharmaceutical Companies ◽  
Nontariff Barriers ◽  
International Banks

Economists have a tendency to associate “free trade agreements” all too closely with “free trade.” They may be unaware of some of the new (and often problematic) beyond-the-boarder features of current trade agreements. As trade agreements have evolved and gone beyond import tariffs and quotas into regulatory rules and harmonization— intellectual property, health and safety rules, labor standards, investment measures, investor–state dispute settlement procedures, and others—they have become harder to fit into received economic theory. It is possible that rather than neutralizing the protectionists, trade agreements may empower a different set of rent-seeking interests and politically well-connected firms—international banks, pharmaceutical companies, and multinational firms. Trade agreements could still result in freer, mutually beneficial trade, through exchange of market access. They could result in the global upgrading of regulations and standards, for labor, say, or the environment. But they could also produce purely redistributive outcomes under the guise of “freer trade.” As trade agreements become less about tariffs and nontariff barriers at the border and more about domestic rules and regulations, economists might do well to worry more about the latter possibility.

Transparency and participatory aspects of investor-state dispute settlement in the EU ‘new wave’ trade agreements

2019 ◽  
Vol 32 (4) ◽  
pp. 781-800 ◽  
Author(s):  
Joanna Lam ◽  
Güneş Ünüvar
Keyword(s):  
Free Trade ◽  
Public Interest ◽  
Dispute Settlement ◽  
Free Trade Agreements ◽  
Trade Agreements ◽  
Forum Shopping ◽  
New Wave ◽  
Commercial Arbitration ◽  
Investment Arbitration ◽  
The Eu

AbstractThis article scrutinizes the investment chapters in the new EU Free Trade Agreements from a transparency perspective. The article examines the claims that the dispute settlement mechanisms in the new treaties are sufficiently participatory and more transparent than their predecessors. Procedural standards related to confidentiality of proceedings shall be analysed in the context of existing transparency safeguards in investment arbitration. In addition to procedural guarantees of transparency, the article examines relevant substantive rules affecting participatory aspects of dispute settlement. Furthermore, the article discusses forum-shopping strategies of the parties in the field of investment-related disputes, including internal forum-shopping and parallel proceedings using different procedural mechanisms. In this context, lessons from other fields such as international commercial arbitration related to transparency (in cases in which public interest is present) are highlighted. The proposal for the establishment of an integrated, multilateral court for investment cases is also invoked.

Part IV Guide to Key Substantive Issues, 23 The MFN Clause and Its Evolving Boundaries

2018 ◽  
Author(s):  
Smutny Abby Cohen ◽  
Polášek Petr ◽  
Farrell Chad
Keyword(s):  
Dispute Settlement ◽  
Primary Concern ◽  
Dispute Settlement Mechanism ◽  
Investment Treaty ◽  
Trade Practice ◽  
Defined Benefits ◽  
The Right ◽  
Procedural Rights ◽  
Trade And Investment ◽  
Settlement Mechanism

This chapter discusses most-favoured-nation (MFN) clauses from early references in trade agreements to contemporary references in investor-state arbitrations. MFN clauses originated in early international trade practice and have continued to be incorporated in modern trade and investment treaties, both bilateral and multilateral. Their intended purpose is to lessen discrimination and encourage the growth of trade and foreign investment by ensuring that certain defined benefits accorded to one set of States (or their nationals, investments, goods, etc.) are extended to other States (or their nationals, investments, goods, etc.). In the investment treaty context, some commentators have observed that the right to a favourable dispute settlement mechanism is the primary concern of foreign investors, and investors often invoke MFN clauses to secure procedural rights that might otherwise be unavailable to them.

Sign in / Sign up

Export Citation Format

Share Document