Integrating Sustainable Development into International Investment Agreements: A Guide for Developing Country Negotiators

摘要

Much has been written about the "grand bargain" promised by the international investment agreement (iia). Most has take the form of bilateral investment treaties (bits) between a capital-exporting State on the one hand and a capital importing State on the other. The capital-exporting State wants to protect its investors who venture into the developing world. The capital-importing State wants to attract desperately needed foreign investment. Hence, the capital-importing State agrees to provide certain protections, in the form of international treaty rights, to investors from the capital-exporting State. The provisions of bits and other has typically afford the investor of the other party with protections against discrimination based on nationality, expropriation, interference with transfers, and require each host government to accord the investor with "fair and equitable treatment" and "full protection and security." Nearly all modern has allow the investors of one State to enforce these protections by asserting claims (typically for monetary damages) directly against the host State in international arbitration. Proponents of the traditional model of has argue that States commit to no more than the basic fair treatment of foreign investors. Critics argue that the rules, especially as they may be interpreted by arbitral tribunals, restrict the host government's ability to regulate as it chooses to a degree that does not merit any increased investment that the has may attract.