International investment agreements (IIAs) were designed to promote greater investment flows between signatory countries and set out standards of protection for investors, with the first bilateral investment treaty being signed 50 years ago. However, there has been a recent proliferation of investor-state arbitrations (ISA) as private actors seek to enforce their treaty obligations against states under international law. As of 31 December 2012, the International Centre for Settlement of Investment Disputes (ICSID) had registered 419 ICSID cases since its establishment. Statistical research compiled by the United Nations Conference on Trade and Development (UNCTAD) reveals that as of 31 July 2017, the total number of publicly known ISA claims had reached 817, and 114 countries have been respondents to one or more known ISA claims.
As arbitrations can be kept confidential in many circumstances, ‘the actual number of disputes filed for this and previous years is likely to be higher’.
Since it was first invoked in the late 1980s in a dispute concerning an Asian country, there have been fewer known or reported Asia-related investor-state dispute settlement (ISDS) cases involving Asian parties than one would have expected. Sornarajah has observed that a’ combination of a historical sense of hostility, nationalism that continues to dictate events, pragmatism and competition among themselves to attract foreign investment underlies the different policies of the Asian states’ towards Foreign Direct Investment (FDI).
In 2012, Kim predicted a ‘pivot to Asia in investor-State arbitration’ away from ‘old generation’ agreements which eschew investment guarantees.
According to Kim, the barriers which exist to ISDS in Asia can be overcome if the’ necessary infrastructure to develop, evolve and converge toward practices followed by more experienced investors’ is put in place by its fast developing states. He called for a’ different sophistication and understanding for parties to resort to’ ISDS. At first glance, Kim's conclusions seem to be prescient.
The US Model bilateral investment treaty (BIT) of the same year is oft en used as the benchmark against which’ new generation’ investment treaties are negotiated and measured.