Briefing Note: Modern Provisions in Investment Treaties

Abstract

Governments are pursuing substantive and procedural reform of the international investment regime in recognition that there are fundamental, systemic, and interrelated concerns about current approaches to investment governance, and that current approaches have failed to meet their purported objectives. A vast majority of the 1,023 publicly-known treaty-based claims have been brought under “old-generation” treaties. In 2018, for example, 60% of such claims were brought under treaties originally concluded in the 1990s or earlier, and all but one was filed under a pre-2011 treaty. These old-generation treaties include vague and far-reaching obligations for states, generally do not include any reference to investor responsibilities (even in non-binding terms) or obligations, and rarely include provisions that seek to meaningfully reaffirm and protect the ability of states to regulate without having to pay compensation for adoption or enforcement of legitimate regulatory measures. Effective environmental, human rights, gender, health, labor, and other public interest provisions are generally absent from these agreements. Without provisions that effectively protect regulatory space and flexibility, and meaningfully advance sustainable development objectives of states parties, respondent host states have been left exposed to costly investor-state dispute settlement (ISDS) proceedings and claims challenging public interest measures. Investor claimants have also relied on investment treaties and ISDS to make threats of claims in order to distort government measures or conduct in foreign investors’ favor. In the context of COVID-19, for example, some law firms seized on the pandemic to advise multinationals on strategies for relying on investment treaties and ISDS to bring claims against governments on the basis of COVID-related measures.

Keywords: Investment Treaties, Reform, Sustainability, Investment Trends, Energy Charter Treaty, Energy Policy, Investment Law and Policy