The First Bilateral Investment Treaties: U.S. Postwar Friendship, Commerce, and Navigation Treaties

82 Pages Posted: 5 Sep 2017 Last revised: 14 Sep 2017

Date Written: May 1, 2017

Abstract

These are Chapters One and Five of The First Bilateral Investment Treaties: U.S. Postwar Friendship, Commerce, and Navigation Treaties, published by Oxford University Press in May 2017. Based on a review of 32,000 pages of negotiating history housed in the National Archives (as well as thousands of pages of other documents), the book traces the history of the U.S. postwar friendship, commerce, and navigation (FCN) treaty program, including the process by which a treaty series initiated in 1776 to address trade and maritime relations was reconceptualized in the late 1940s as a program of investment treaties. It describes the origins and meaning of the investment provisions that appeared in these treaties, provisions that are the precursors to the provisions that appear in contemporary bilateral investment treaties (BITs) and free trade agreements (FTAs) with investment provisions. It shows how these investment provisions, formulated in the late 1940s, were rooted in the New Deal liberalism of the Roosevelt and Truman administrations. They were intended to obtain for U.S. investors abroad protections similar to those already enjoyed by foreign (and domestic) investors in the United States under the U.S. Constitution. The book also includes an account of the negotiation of each postwar FCN treaty signed by the United States and a description of how each investment-related provision was interpreted by the United States.

Chapter One is the Introduction to the book. It summarizes the events that are described throughout the remainder of the book, explains what is meant by references to New Deal liberalism, and describes in more detail the contents of the book.

Chapter Five describes the process by which the FCN treaties were reconceptualized as bilateral investment treaties.

The First Bilateral Investment Treaties: U.S. Postwar Friendship, Commerce, and Navigation Treaties is part of a trilogy of books on international investment agreements. U.S. International Investment Agreements, published by Oxford University Press in 2009, presents a comprehensive analysis of the first 30 years of the current U.S. investment treaty program, including both BITs and FTAs with investment chapters. It traces the evolution of each provision in the U.S. model BITs, explains the policies underlying those provisions, describes modifications to the provisions in the signed BITs and FTAs, and synthesizes the international arbitral awards interpreting the provisions. Chapters One (“Introduction”) and Three (“The Evolution of the BIT Model Negotiating Text”) of that book have been posted separately. Bilateral Investment Treaties: History, Policy, and Interpretation, published by Oxford University Press in 2010, provides a general theory of international investment law, arguing that investment treaties are based on six core principles (nondiscrimination, security, reasonableness, due process, transparency and access), and analyzes the key provisions of BITs, explaining the structure and policy of each provision, tracing its origins and development, and synthesizing the arbitral awards interpreting it. It covers the period from 1959, when Germany concluded its first bilateral investment treaty with Pakistan, through 2009, and thus provides a summary of the first 50 years of BIT programs worldwide. Chapters Seven (“Nondiscrimination”) and Nine (“Access”) of that book have been posted separately.

Keywords: friendship, commerce and navigation, FCN treaty, liberalism, foreign investment policy, bilateral investment treaty, model BIT, fair and equitable treatment, expropriation

JEL Classification: K33, P33, P45

Suggested Citation

Vandevelde, Kenneth J., The First Bilateral Investment Treaties: U.S. Postwar Friendship, Commerce, and Navigation Treaties (May 1, 2017). Thomas Jefferson School of Law Research Paper No. 2993300, Available at SSRN: https://ssrn.com/abstract=2993300

Kenneth J. Vandevelde (Contact Author)

Thomas Jefferson School of Law ( email )

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