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The Future of Bilateral Investment Treaties: A De Facto Multilateral Agreement?

52 Pages Posted: 28 Jan 2010  

Efraim Chalamish

New York University Law School

Date Written: January 27, 2010

Abstract

The international community has agreed to abandon investment regulation in the Doha round, leaving itself with the indispensable goal of dealing with investment regulation on unilateral, bilateral and regional basis. The expansion of the already-extensive network of bilateral investment treaties ("BITs") that have been regulating foreign investment bilaterally in recent decades calls for a careful review of the network's characteristics and relationships with potential multilateral agreements in the future. This paper studies the multilateral element of the network through its reduced competitiveness factor, centralized signing mechanism, and harmonization of interpretation and implementation of the treaties by international tribunals.

The strong multilateral element of a BIT suggests that the BITs network could serve as a de facto multilateral agreement, as long as governments cannot agree on similar arrangements on the multilateral level. This phenomenon could make a future multilateral agreement redundant, strengthen the developing investor-state jurisprudence, and call for inclusion of non-investment related concessions in such bilateral treaties, such as the controversial corporate responsibilities provisions. Thus, the paper demonstrates how the important BITs network is gradually becoming a humanized multilateral agreement.

Keywords: Bilateral Investment Treaties, Multilateral Treaty, international tribunals, investor-state jurisprudence, corporate responsibilities

JEL Classification: K33

Suggested Citation

Chalamish, Efraim, The Future of Bilateral Investment Treaties: A De Facto Multilateral Agreement? (January 27, 2010). Brooklyn Journal of International Law, Vol. 34, No. 2, 2009. Available at SSRN: https://ssrn.com/abstract=1543322

Efraim Chalamish (Contact Author)

New York University Law School ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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