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This essay proposes a matrix for understanding the dynamics of investment treaty reform. It tracks incremental, systemic, and paradigmatic reform options as applied across procedure, substance, and form. Although stylized and thus unable to capture all the nuances of individual positions, the reform matrix creates a framework for understanding some of the main debates about investment treaty reforms and offers a template for locating and comparing the approaches of key international actors, including the United States, the European Union, and Japan, together with Brazil, Russia, India, China, and South Africa (the BRICS).
Brazil only recently joined the collection of states that have adopted international investment agreements (IIAs), but in doing so it developed a noteworthy approach in the form of the Cooperation and Facilitation Investment Agreement (CFIA). In this essay, we explore the characteristics and merits of this particular treaty model, making three points: First, the CFIA exhibits unique features that set it apart from traditional bilateral investment treaties (BITs), including the state-to-state management of investment relations and an emphasis on investment facilitation rather than investment protection. Second, the CFIA displays a degree of “interoperability” that has made it possible for Brazilian partners to sign these agreements while simultaneously holding BIT portfolios, despite significant differences between the two approaches. Finally, one of the CFIA's key features—that of investment facilitation—is a promising basis for reform in multilateral settings such as the World Trade Organization (WTO). In short, we believe that the CFIA offers an innovative and attractive option for states looking to supplement or revise traditional BITs, both bilaterally and multilaterally.
No Western publication on international investment law (IIL) has ever specifically undertaken a comparative study of Russian and Western doctrines of IIL. Although Russian scholars often contrast Western and Russian approaches to international law, scholars in the West mostly proceed without any discussion of Russian practice and perspectives. To fill this gap, this essay introduces the Russian approach to IIL and contrasts it with its Western counterpart. In particular, we show that the Russian approach focuses far more extensively on the nature and categorization of IIL and treats IIL primarily as private international law rather than public international law. The distinctive Russian approach has practical relevance for states and scholars, in part because it helps to explain why Russia has resisted efforts to reform investor-state dispute settlement.
International arbitration before Western-based institutions is the dominant mode of investor-state dispute settlement (ISDS). The Washington-based International Centre for Settlement of Investment Disputes (ICSID), the Hague-based Permanent Court of Arbitration, the Arbitration Institute of the Stockholm Chamber of Commerce, and the International Court of Arbitration of the Paris-based International Chamber of Commerce handle the vast majority of the world's international investment disputes. ICSID alone administers over sixty percent of the cases, while the others account for an additional twenty percent. Yet China has begun to innovate in ISDS over the last few years. These innovations have taken three main forms. The first is the extension of the jurisdiction of existing commercial arbitral institutions in China to cover foreign investment disputes. The second is the creation of new Chinese courts to possibly handle contractual investment disputes. The third is the formation of joint arbitration centers with states in regions where China invests heavily, such as Africa. This essay describes these changes and argues that they should be understood as reflecting an important facet of China's broader international strategy. In particular, the recent innovations aim to furnish adequate protection to Chinese investors in foreign countries, particularly developing states; actively shape international discourses on international investment law; and offer alternative, Chinese-initiated institutions that will break the monopoly of the West.
Many states use investment treaties to spur economic development by granting legal protections to foreign investors and providing for direct enforcement before international arbitral tribunals. Yet South Africa has taken a different course. As explained below, South Africa originally signed onto a number of investment treaties despite barely considering how the resulting obligations would affect its constitutional commitments and the authority of its domestic courts. After the shock of losing its first two treaty-based investment disputes, the country shifted from avidly entering into bilateral investment treaties (BITs) to opposing BITs absent compelling economic and political reasons to conclude them. Today South Africa seeks to replace investment treaties and investor-state arbitration with protections under domestic legislation, along with mediation and dispute resolution before domestic courts. In this essay, I describe this shift and explore three difficult and yet-to-be-resolved questions that it presents: (1) Will foreign investors still be able to rely on protections under international law when bringing domestic cases? (2) If so, will the South African Constitution, as a matter of domestic law, displace any relevant commitments under international law? And (3) is the new South African approach consistent with international law?
Brazil, Russia, India, China, and South Africa (the BRICS) have emerged as a new hub of power in international relations. They have begun to speak out jointly on a wide range of issues and to explore cooperating collectively. For instance, they strongly urge the Bretton Woods institutions to address their legitimacy deficits by transferring substantial voting power to emerging powers, and suggest that failure to do so will “run the risk of seeing [those institutions] fade into obsolescence.” The investment treaty regime may be another field in which they can exert influence, but the investment treaty policies of BRICS countries are diverging now more than ever. In particular, India and South Africa have taken significant measures, such as terminating investment treaties, that cast doubt on whether the BRICS can play a collective role in reforming such treaties. In this essay, I make two arguments. First, the recent investment treaty policies of some BRICS (India, South Africa, and to some extent Brazil) have shifted from one imbalanced approach that is too protective of foreign investors to another that is too protective of host states and is likely to be rejected by major powers such as the European Union, the United States, and China. Second, the BRICS together have the ability to craft approaches to investment treaties that encourage greater balance in the regime overall, including by remedying some of the defects inherent in the traditional investment treaties.
There is much rethinking being done about investment treaties. While some level of uniformity existed when there was institutional direction by the World Bank and hegemonic pressure exerted by states in the Global North, geopolitical power is now shifting in ways that are producing greater diversity in approaches to the field. The evidence seems to indicate that each state that is of sufficient size or power will seek to fashion its foreign investment policy in the context of its own circumstances. This is certainly true for Brazil, Russia, India, China, and South Africa (the BRICS). Within this group of newly industrializing countries, it is clear that a uniform approach to investment treaties will not emerge, despite avowals to the contrary. In this essay, I offer an assessment of the divergent paths some of these states have taken. I contend that China has emerged as a newly hegemonic actor in international investment in a way that undermines its traditional role as champion for the Third World, and that India's recent attempt to develop a “balanced approach” to investment treaties is unworkable. Only South Africa has developed an approach that seeks to protect its government's ability to serve the goals of its people by subjecting foreign investment disputes to South African law and courts.