The Future of Bilateral Investment Treaties: A De Facto Multilateral Agreement?
New York University Law School
January 27, 2010
Brooklyn Journal of International Law, Vol. 34, No. 2, 2009
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.
Number of Pages in PDF File: 52
Keywords: Bilateral Investment Treaties, Multilateral Treaty, international tribunals, investor-state jurisprudence, corporate responsibilities
JEL Classification: K33
Date posted: January 28, 2010