Part I Fundamental Issues, Ch.4 Multilateral Investment Rules Revisited
Stefan D Amarasinha, Juliane Kokott
Edited By: Peter T Muchlinski, Federico Ortino, Christoph Schreuer
- Investment — Investor — Specialized treaty frameworks — Standards of treatment — BITs (Bilateral Investment Treaties)
This chapter addresses the question of whether it is possible to retain a multifaceted and multi-layered system of bilateral and regional agreements, which leads to what some have termed a ‘spaghetti-bowl’ of legal instruments, or whether it is necessary to reform that system by way of multilateral disciplines on foreign investment. Section 1 sets the scene by examining the current international regulation of foreign investment and discussing previous attempts in the WTO and under the auspices of the OECD to negotiate multilateral rules. Section 2 identifies the main lessons to be learned from deliberations of the WTO Working Group on Trade and Investment, when it was tasked with considering which issues should be included in any possible WTO-based initiative on foreign investment rules. Section 3 discusses and offers recommendations for possible future multilateral investment rules which would encompass not merely rights of investors and obligations on the part of host countries, but rather a more comprehensive ‘compact’ comprising pre- and post-establishment aspects of investment, as well as a number of supporting elements regarding the environment, good governance, labour standards and human rights, and the overall conduct of foreign investors. Section 4 offers suggestions for substantive elements and aspects of dispute settlement in addition to the Model International Investment Agreement for Sustainable Development (IIASD Agreement) draft. Finally, Section 5 suggests and concludes that given the existing regulation of foreign investment, future multilateral investment rules would not altogether replace existing investment regulation, but would rather clarify it in some areas and add value in others, including through substantive provisions relating to environmental and labour standards.