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Investment Treaties: The Reform Matrix

  • Anthea Roberts (a1)
Extract

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).

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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
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1 See Anthea Roberts, Incremental, Systemic, and Paradigmatic Reform of Investor-State Arbitration, 112 AJIL (forthcoming 2018).

2 Comprehensive and Progressive Agreement for Trans-Pacific Partnership, Mar. 8, 2018; see Trans-Pacific Partnership Agreement ch. 9 (Investment), art. 9.4-.15 (drafting investor protections in greater detail and with express provisions ensuring regulatory freedom), art. 9.22 (instituting rules on arbitrator conflicts, qualifications, and ethics), art. 9.23.6 (developing mechanisms for early dismissal of frivolous claims), art. 9.24 (requiring transparency in arbitral proceedings), art. 9.25.3 (providing for joint binding interpretation), Feb. 4, 2016.

3 Roberts, supra note 1.

4 Protection of Investment Act 22 of 2015 § 13 (S. Afr.).

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

9 See Russian Federation, UNCTAD Investment Policy Hub (providing links to Russia's investment treaties).

10 Dmitry K. Labin & Alena V. Soloveva, International Investment Law as International Law: Russian and Western Approaches, 112 AJIL Unbound 202 (2018).

11 See generally 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 Id., arts. 13 & 15.

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

16 Axel Berger, Investment Rules in Chinese PTIAs—A Partial “NAFTA-ization”, in The Rise of Preferential Trade and Investment Agreements: Bridging the Gap? 297, 297 (Rainer Hofmann et al. eds., 2013); Stephan W. Schill, Tearing Down the Great Wall: The New Generation Investment Treaties of the People's Republic of China, 15 Cardozo J. Int'l & Comp. L. 73, 76 (2007).

17 Anthea Roberts & Zeineb Bouraoui, UNCITRAL and ISDS Reforms: Concerns About Consistency, Predictability and Correctness, EJIL: Talk! (June 5, 2018).

18 Congyan Cai, Balanced Investment Treaties and the BRICS, 112 AJIL Unbound 217 (2018).

20 Huiping Chen, China's Innovative ISDS Mechanisms and Their Implications, 112 AJIL Unbound 207 (2018).

21 Anthea Roberts, UNCITRAL and ISDS Reform: Pluralism and the Plurilateral Investment Court, EJIL: Talk!, (Dec. 12, 2017).

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AJIL Unbound
  • ISSN: -
  • EISSN: 2398-7723
  • URL: /core/journals/american-journal-of-international-law
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