Skip to main content
×
×
Home

Balanced Investment Treaties and the BRICS

  • Congyan Cai (a1)
Extract

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.

  • View HTML
    • Send article to Kindle

      To send this article to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle.

      Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

      Find out more about the Kindle Personal Document Service.

      Balanced Investment Treaties and the BRICS
      Available formats
      ×
      Send article to Dropbox

      To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Dropbox.

      Balanced Investment Treaties and the BRICS
      Available formats
      ×
      Send article to Google Drive

      To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Google Drive.

      Balanced Investment Treaties and the BRICS
      Available formats
      ×
Copyright
This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
Hide All

1 II BRIC Summit—Joint Statement, para. 11 (Apr. 16, 2010).

2 Anthea Roberts, Investment Treaties: The Reform Matrix, 112 AJIL Unbound 191 (2018).

3 Id.

5 See, e.g., UN Conference on Trade & Dev. [UNCTAD], Investment Policy Framework for Sustainable Development, UN Doc. UNCTAD/DIAE/PCB/2015/5 at 8 (2015).

6 Id. at 6.

9 White Industries Austl. Ltd. v. India, Final Award, UNCITRAL (UNCITRAL, Nov. 30, 2011).

10 India—As Respondent State, UNCTAD Investment Policy Hub (Dec. 31, 2017) [hereinafter India As Respondent].

12 For details, see Grant Hanessian & Kabir Duggal, The Final 2015 Indian Model BIT: Is This the Change the World Wishes to See?, 32 ICSID Rev. 216 (2017).

13 Model Text for the Indian Bilateral Investment Treaty art. 15.2 (2015) [hereinafter 2015 Indian Model BIT).

14 Hanessian & Duggal, supra note 12, at 217.

16 India: Bilateral Investment Treaties (BITS), UNCTAD Investment Policy Hub.

17 Foresti v. S. Afr., ICSID Case No. ARB(AF)/07/1 (Aug. 4, 2011).

18 South Africa Dep't Trade & Industry, Bilateral Investment Treaty Policy Framework Review pt. II (June 2009) [hereinafter BIT Review].

20 South Africa: Bilateral Investment Treaties (BITs), UNCTAD Investment Policy Hub.

21 Protection of Investment Act 22 of 2015 §§ 13, 15 (S. Afr.).

22 Engela C. Schlemmer, Dispute Settlement in Investment-Related Matters: South Africa and the BRICS, 112 AJIL Unbound 212 (2018).

23 BIT Review, supra note 18, at 7.

24 South Africa—As Home State, UNCTAD Investment Policy Hub (Dec. 31, 2017); South Africa—As Respondent State, UNCTAD Investment Policy Hub (Dec. 31, 2017).

25 India As Respondent, supra note 10.

26 India—As Home State, UNCTAD Investment Policy Hub (Dec. 31, 2017).

27 Madhyam Kavaljit Singh, The India–US Bilateral Investment Treaty Will Not Be an Easy Ride, E. Asia F. (Feb. 10, 2015); Eur. Comm'n, Overview of FTA and Other Trade Negotiations (May 2018).

28 BIT Review, supra note 18, at 56.

29 See, e.g., 2015 Indian Model BIT, supra note 13, arts. 24, 29; see also High Level Committee Report, supra note 11, at 107, 113.

30 See Henrique Choer Moraes & Felipe Hees, Breaking the BIT Mold: Brazil's Pioneering Approach to Investment Agreements, 112 AJIL Unbound 197 (2018).

31 CFIA, supra note 15, art. 24.

32 South Africa Dep't of Trade & Industry, Press Release, BRICS Perspective on International Investment Agreements (July 15, 2014).

33 Id.

34 See Moraes & Hees, supra note 30.

35 CFIA, supra note 15, arts. 17–18, 22, respectively.

36 Kenneth J. Vandevelde, U.S. International Investment Agreements 32, 41 (2009).

38 Roberts, supra note 2, at 196.

39 Protection of Investment Act, supra note 21, § 9.

41 See, e.g., Jorge G. Castañeda, Not Ready for Prime Time: Why Including Emerging Powers at the Helm Would Hurt Global Governance, Foreign Aff. 109, 109 (Sept./Oct. 2010); Stewart Patrick, Irresponsible Stakeholders? The Difficulty of Integrating Rising Powers, Foreign Aff. 44, 57 (Nov./Dec. 2010).

Recommend this journal

Email your librarian or administrator to recommend adding this journal to your organisation's collection.

AJIL Unbound
  • ISSN: -
  • EISSN: 2398-7723
  • URL: /core/journals/american-journal-of-international-law
Please enter your name
Please enter a valid email address
Who would you like to send this to? *
×

Metrics

Altmetric attention score

Full text views

Total number of HTML views: 0
Total number of PDF views: 0 *
Loading metrics...

Abstract views

Total abstract views: 0 *
Loading metrics...

* Views captured on Cambridge Core between <date>. This data will be updated every 24 hours.

Usage data cannot currently be displayed