2010/IEG/WKSP1/002 Overview of IIAs and Treaty-Based Investment Disputes
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1 21/IEG/WKSP1/2 Overview of IIAs and Treaty-Based Investment Disputes Submitted by: UNCTAD Workshop on Dispute Prevention and Preparedness Washington, DC, United States 26-3 July 21
2 Workshop on dispute prevention and preparedness Washington d.c July 21 Overview of IIAs and Treaty-Based Investment Disputes Anna Joubin-Bret Senior Legal Adviser Division on Investment and Enterprise UNCTAD 1 Contents - Bilateral Investment Treaties - Double taxation treaties - Free Trade Agreements with investment chapters - Systemic evolution in the IIA universe - Recent developments in investor-state dispute settlement - Key issues and challenges 2 1
3 The network of International Investment Agreements (IIAs) Bilateral investment treaties (BITs) Free trade agreements / economic partnership agreements with investment provisions (FTAs/EPAs) Regional integration agreements (EU, EFTA, CARICOM, MERCOSUR, ASEAN) Multilateral agreements dealing with investment (GATS, TRIMs, TRIPs, MIGA, APEC principles) 3 A. Bilateral Investment Treaties 4 2
4 Annual and cumulative BITs worldwide, BITs annual BITs cummulative BITs Annual BITs cumulative 82 BITs concluded in 29, bringing the total number of BITs to 2,75 5 Annual and cumulative BITs concluded by APEC economies, Annual BITs Cumulative BITs 6 3
5 The top ten signatories of BITs in the world, end 29 Germany China Sw itzerland United Kingdom Egypt Italy France Netherlands Belgium and Luxembourg Korea, Republic of The top ten signatories of BITs, APEC economies, end 29 China Korea, Republic of Malaysia Russian Federation Indonesia VietNam Chile United States Thailand Singapore
6 BITs concluded by country group 13% 4% 25% 8% 1% 4% Between developing countries Between developed and developing countries Between developing countries and countries of SEE&CIS Between developed countries Between developed and countries of SEE&CIS Between countries of SEE&CIS 9 New generation of BITs: Increasingly sophisticated and complex United States and Canadian model BITs (24) Tend to be increasingly sophisticated in content Clarifying in greater detail the meaning of a number of standard clauses Putting more emphasis on the protection of national security, health, safety, the environment, and labour rights 1 5
7 B. Double taxation treaties 11 Annual and cumulative DTTs worldwide, DTTs Annual DTTs cumulative 19 double taxation treaties concluded in 29, bringing the total to 2,894 DTTs by end
8 The top ten signatories of DTTs, end 29 United Kingdom United States Netherlands France Switzerland Denmark Canada Sweden Norway Germany Belgium China Italy Finland Spain The top ten APEC economies signatories of DTTs, end 29 United States Canada China Korea, Republic of Malaysia Japan Singapore Russian Federation Australia Thailand Indonesia VietNam Mexico New Zealand Philippines
9 c. Free Trade Agreements 15 B. Free Trade Agreements with Investment Chapters International investment rules are increasingly being formulated as part of agreements that encompass a broader range of issues (including trade, services, competition, intellectual property) Regional integration with investment disciplines: ASEAN investment liberalization and protection The total number of such economic agreements with investment provisions exceeded 29, as of end
10 Over 29 other IIAs, rapid increase since of IIAs (other than BITs and DTTs) Number By period Cumulative 17 Number of other IIAs concluded by APEC economies, : a shift from BITs to FTAs with investment chapters?
11 Recent FTAs with investment chapters Free Trade Agreement between the EFTA States and Canada Free Trade Agreement between China and New Zealand Free Trade Agreement between Singapore and Panama Economic Partnership Agreement between Japan and Thailand Free Trade Agreement between the United States and the Republic of Korea EC-CARIFORUM Economic Partnership Agreement Hong Kong-New Zealand Closer Economic Partnership agreement (CEPA) Free Trade Agreement between China and Costa Rica 19 Multiple overlapping FTAs with investment provisions IIAs proliferate at all levels Constituting a complex system of multi-layered and multi-faceted investment rules 2 1
12 D. Systemic evolution 21 Systemic evolution of the IIA universe Recent trends in substantive IIA content: Enhance coherence between investment and other legitimate policies Balancing the rights and obligations of investors and host countries Increasing predictability and stability in international investment relations How is this being done? 22 11
13 1. The review of model BITs 2. BIT renegotiations 3. Efforts towards more consolidation through multiparty FTAs and regional agreements 4. Modernisation of treaty content Clarification of scope Exceptions for public policy concerns Clarifying meaning of specific provisions (FET, indirect expropriation) ISDS innovations 23 12
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