Bilateral Investment Treaties

The American Branch of the International Law Association (ABILA) is excited to announce that registration is now open for International Law Weekend (#ILW2023) which will be held October 19-21, 2023 in NYC. The unifying theme for ILW 2023 is Beyond International Law.

Sri Lanka’s debt restructuring process is burdened with several challenges. They include typical political and legal challenges, as well as evident geopolitical tensions and possible disruptive investment arbitration based on Sri Lanka’s BITs. Indeed, these atypical challenges will possibly make Sri Lanka’s debt restructuring process more complex and perhaps prolonged, leaving the country more vulnerable. Besides these challenges, debt restructuring might have immediate repercussions on the economy, such as difficulties in attracting foreign investors and losing access to international financial markets. Furthermore, although sovereign debt restructuring could bring the country’s distressed economy back to debt sustainability if appropriately managed, there is no guarantee that it will end the calamities of an insolvent nation grappling with several intertwined crises. Finally, Sri Lanka’s more daunting debt restructuring process will test the existing global financial infrastructure, questioning its adequacy to accommodate the current global economy’s challenges.

These recent procedural and substantive trends encompassed in the WAU conference demonstrate a renewed and welcomed interest for arbitration of mega disputes in the African continent and the MENA region, both international arbitration hubs that are gaining prominence. Whilst challenges remain, biases against arbitrating disputes in these regions are being debunked by the experience of Africa and MENA with dispute resolution, the advent of institutions and “arbitration friendly” jurisprudence.

This blog reflects on recent efforts for international investment agreements (IIAs) to extend human rights and sustainable development obligations to foreign investors. Prior to the recent adoption of the Nigeria-Morocco BIT in 2016, human rights language and foreign investor obligations were notably absent in Nigeria’s IIAs. This discrepancy - between attempts to attract foreign investment through IIAs and the failure to link these investments to socio-economic priorities in Nigeria – has led to palpable tensions within Nigeria’s dominant economic sector, oil production, but recent international law developments suggest a slow shift is happening.

Private investment is at the centre of Japan’s current Africa policy that aims to amplify its economic diplomacy in Africa, offsetting the increased Chinese presence in the continent mainly through sovereign investments. This has made the promotion of Japanese private investments in Africa a “strategic priority of Japan”, whose political impetus in this respect clashes with the economic interests of “risk-averse” Japanese investors. Accordingly, the protection of private investments has come to the fore hastening the Afro-Japanese BIT programme remained idle for decades.

Ecuador’s relationship with the Investment Treaty Regime is an unsettled issue deeply contested by dueling actors and narratives battling to annihilate each other. Ecuador is one of the top investment disputes’ respondent. ISDS awards have been particularly detrimental to its public coffers, and the country has attempted a tailored made constitutional approach to limit the reach of ISDS. Yet, none of this has been enough to reach a minimum consensus and understanding regarding the breadth of foreign investment protection. Remarkably, this endless struggle has paved the way for an increasing confluence of players that put in plain display the multiple transnational interests that shape foreign investment protection.

The book provides useful knowledge of aspects of IIL and clearly contributes to the field. It seems to map the field in a way that can generate interest in undertaking a more detailed and rigorous examination of some issues raised in the application of rules and principles of IIL in a variety of settings. Invariably some issues have been covered in more depth than others. In addition to the consideration of regional instruments, there are some comparative references between countries such as Nigeria, United Kingdom and the United States. To understand the book’s mission and contributions, it is important to explore the contents of its chapters.

I am delighted to present this symposium for my textbook entitled: International Investment Law: National, Regional and Global Perspectives (Wolf Legal Publishers, Nijmegen, the Netherlands: 2020). The textbook could not have come at a better time given the compelling need for scholars from the Global South, particularly Africa, to contribute to international investment law scholarship to help reshape and redefine international investment law for the mutual advantages of foreign investors/enterprises and the host States.

Probably buoyed by its relatively open-ended nature, the fair and equitable standard (FET) of protection of foreign investors has become a much more invoked arsenal than the claim of direct or indirect expropriation. As Professor Sornarajah notes in his foreword to the book, very few scholars have dealt with the impact that the relatively opaque, if not expansive interpretations of the FET standard by arbitrators has had on the host States, particularly those from the global South. Professor Rumana Islam’s work is a notable exception to this.

The overarching argument made in the book is that there is a pressing need to reconceptualize the interpretation of the FET standard, taking into account the particular developmental circumstances of the developing countries in investor-State disputes. The book explores these challenges and issues that the developing countries face arising from overly broad interpretations of the FET standard.