Recalibrating Policy Space in Bilateral Investment Treaties: Is There a Common B(R)ICS Approach?

Abstract

The Law of International Investment Protection is currently in a time of contestation and transition. States all over the world have revised, or are in the process of revising their in-vestment protection policies and international treaties. Among diverse approaches, several States from the Global South have taken radical stances against the international investment regime, in line with earlier approaches by newly independent States. At the same time, some former developing States are transitioning from being mainly capital importers towards be-coming important capital exporters increasingly wary of protecting investments of their citizens and state-owned companies abroad. In this context, the paper seeks to explore how BRICS have positioned themselves within the debate of recalibrating bilateral investment treaties. Beginning with a short analysis of BRICS common statements related to investment protection, the paper will describe in more detail how treaty practice and Model BITs of Brazil, India and China balance investors’ rights with a State’s right to regulate.

Keywords: BRICS, Investment Law, Investment Protection, BIT, Bilateral Investment Treaty, China, Brazil, India, South Africa

JEL Classification: K