2.1. From ancillary clauses to treaty architecture: the legal development of facilitation through three generations

The development of IF provisions within IIL marks a reordering of treaty architecture. What began as auxiliary clauses appended to broader investment agreements have become a distinct method of legal ordering, centred on procedural obligation. This section formulates a three-stage model of treaty development, in which facilitation provisions evolve from transparency clauses to instruments of procedural coordination and, ultimately, to vehicles for embedding sustainability obligations within treaty structures. Each generation consolidates a different legal function: initial transparency commitments, procedural coordination of administrative practice and, in more recent treaties, integration of public policy objectives, such as sustainable development. The progression reflects not an expansion of treaty content but a redefinition of how legal obligations are constructed and sequenced within investment agreements.

Early treaties, such as the Netherlands-Pakistan BITFootnote ¹⁵ and the North American Free Trade Agreement,Footnote ¹⁶ treated facilitation as secondary to investment protection. Transparency obligations were limited to the publication of laws and regulations, offering no mechanisms for administrative streamlining or investor assistance. These agreements prioritised shielding investments from political risks in a context where such protection was paramount.Footnote ¹⁷ However, they lacked robust mechanisms for procedural efficiency, such as clear processes for dispute resolution or administrative streamlining, which hindered their ability to promote more cooperative investment environments.Footnote ¹⁸

In contrast, second-generation treaties, such as Brazil’s Cooperation and Investment Facilitation Agreements (CIFAs) and the Association of Southeast Asian Nations Investment Facilitation Framework (ASEAN IFF),Footnote ¹⁹ treat procedural simplification and transparency as distinct objectives. They present these aims as stand-alone commitments, rather than as ancillary measures that support substantive standards of treatment.Footnote ²⁰ Notably, while investor protection standards, such as MFN treatment, national treatment and protection against expropriation, are retained in CIFAs, these treaties also introduce provisions relating to sustainable development (including commitments to corporate social responsibility), thereby marking an early departure from a purely protection-centric approach and aligning with the emerging global emphasis on investment sustainability. Brazil’s CIFAs, including agreements with Mozambique,Footnote ²¹ AngolaFootnote ²² and Malawi,Footnote ²³ introduce enforceable obligations to improve transparency, establish focal points for investor assistance and prevent disputes through cooperation.Footnote ²⁴

These treaties reject the traditional ISDS model based on international arbitration, opting instead for procedural alternatives such as structured bilateral consultations and joint committees aimed at resolving disputes cooperatively. This marks a clear departure from adversarial enforcement toward a collaborative framework designed to balance investor interests with the regulatory sovereignty of host States. The evolution also reflects a broader attitudinal change among States; from a reactive posture that treated disputes as ex post risks to be adjudicated, to a proactive approach that emphasises institutional engagement and early-stage prevention mechanisms. Similarly, the ASEAN IFF encourages voluntary regional measures to enhance transparency and streamline administrative processes, but its non-binding nature limits enforceability and leaves implementation to the discretion of individual States.

Third-generation treaties, including the WTO IFDA,Footnote ²⁵ the Regional Comprehensive Economic Partnership (RCEP)Footnote ²⁶ and the AfCFTA Protocol on Investment,Footnote ²⁷ represent a more sophisticated and comprehensive approach to facilitation. These agreements embed advanced procedural measures while integrating broader sustainability and development objectives. The WTO IFDA, currently pending ratification by WTO members, reflects a broad multilateral consensus on the importance of IF. However, its incorporation into the WTO legal architecture presents procedural complexities, not due to a lack of political will but because of the challenges inherent in embedding a facilitation-focused instrument within a broader institutional framework.Footnote ²⁸ The RCEP, operational since 2022, demonstrates the effective implementation of facilitation measures across a diverse membership, harmonising regulatory practices and improving administrative efficiency.Footnote ²⁹ In Africa, while the AfCFTA Agreement has been in force since 2019, its Protocol on Investment is not yet in force.Footnote ³⁰ Nevertheless, the Protocol sets a high standard for regionally tailored IF, with a focus on regulatory coherence, sustainable development and inclusive growth.Footnote ³¹

Sustainability is also a defining feature of many third-generation treaties. The European Union-Angola Sustainable Investment Facilitation Agreement (EU–Angola SIFA)Footnote ³² and the Australia-Singapore Green Economy Agreement (Australia–Singapore GEA)Footnote ³³ exemplify the trend of linking facilitation with environmental and social objectives. These treaties go beyond procedural streamlining to promote responsible investment practices, aligning with global goals, such as the UN SDGs. This integration highlights the transformative potential of facilitation provisions in reshaping the relationship between investment governance and global public policy objectives.

Table 1 compiles a representative rather than comprehensive selection of concluded IF treaties (in force or not) as of October 2025, illustrating facilitation practice at bilateral, regional and multilateral levels. Table 2 complements this by summarising selected negotiations in which facilitation provisions are being proposed or tested.

Table 1.

Concluded treaties on investment facilitation selected for generational and institutional coverage

Source: Compiled by the author using publicly available sources (e.g. UNCTAD International Investment Agreements database, EDIT database, government websites).

Method note: Table 1 is based on a selective method. It brings together treaties that best illustrate investment facilitation at bilateral, regional and multilateral levels. The goal is to give examples that are representative and accessible, not to list every agreement. Both treaties already in force and those only concluded are included because the focus is on treaty design and innovation rather than operational status. The selection relied on several factors: first, clear and substantial procedural content; second, a mix of treaty types, including bilateral, regional and multilateral; third, accessibility of treaty texts through reliable public sources such as the UNCTAD and EDIT databases; fourth, the relevance of the agreement to current practice and debates; and, fifth, recentness, to reflect how facilitation is developing at the time of writing. The inclusion of the China-Cambodia and China-Ecuador FTAs, for example, reflects the fact that they contain a dedicated and detailed investment cooperation chapter rather than only scattered facilitation articles. Other agreements also include a full facilitation chapter, such as chapter 7 of the Trade and Economic Partnership Agreement between the EFTA States and India. Many additional treaties contain facilitation provisions, for instance the Economic Partnership Agreement between the EFTA States and Malaysia, Articles 14 and 20 of the Agreement between Australia and the United Arab Emirates on the Promotion and Protection of Investments and chapter 11 of the Australia-United Arab Emirates Comprehensive Economic Partnership Agreement, but they were left out to avoid turning the table into a list.

Table 2.

Investment facilitation negotiations selected for analytical relevance and verifiability

Source: Compiled by the author using publicly available sources (e.g. government websites).

Method note: Table 2 presents a selective overview of treaty negotiations that include IF elements. It is not a full catalogue. Negotiations are dynamic, often confidential, and subject to political change, so a comprehensive list would be both incomplete and quickly outdated. The purpose of the table is analytical: to show how facilitation provisions are being framed and tested across different settings, rather than to record every negotiation. Entries were chosen because there is reliable, verifiable information about facilitation content from official mandates, released draft texts or government statements. Talks are included whether active, stalled or unlikely to conclude, because the texts, proposals and controversies can influence later treaties (for example, the TTIP continues to inform debates on dispute settlement). Other negotiations with facilitation elements exist, such as the India-Australia Comprehensive Economic Cooperation Agreement, but they are omitted to keep the table focused on cases with the clearest available material. All details reflect what was publicly available at the time of writing and may change as talks progress.

Despite their legal ambition, the effectiveness of facilitation treaties depends on institutional execution. Ratification alone does not determine legal impact; what matters is whether parties have the regulatory infrastructure and administrative capacity to implement procedural obligations in practice. Agreements such as the RCEP and the AfCFTA Protocol on Investment offer operational models, but other instruments (including the WTO IFDA and the EU–Angola SIFA) underscore the ongoing difficulty of translating procedural design into institutional practice. The success of facilitation treaties will turn on whether legal commitments are carried through administrative systems that can deliver regulatory transparency, coordination and support across divergent legal environments.

In any case, these developments confirm that IF has moved from a peripheral status to a central position in treaty design. What began as minor textual commitments has developed into a legally structured approach to investment governance. Facilitation treaties now serve not only to correct procedural inefficiencies but also to organise how legal authority is distributed between investors and States. Whether this model can deliver on its structural promise depends on sustained legal engagement and the institutional conditions under which facilitation obligations are implemented.

The treaties currently under negotiation (summarised in Table 2) reflect a significant evolution in the international regulation of IF, marking them as potentially emblematic of a third generation of investment treaties, depending on the extent to which facilitation remains a core focus in their final texts. Unlike earlier agreements that focused predominantly on substantive protections for investors, this new wave emphasises the procedural aspects of investment governance (enhancing transparency, streamlining administrative processes and fostering sustainable development). Although these treaties are not yet in force or have not been concluded, they are part of a broader diplomatic movement to make IF a central feature of global investment law, though some, such as the Transatlantic Trade and Investment Partnership (TTIP), are highly unlikely to be finalised.

At the heart of these agreements lies a shared objective: to address the inefficiencies and barriers within domestic investment frameworks, such as regulatory red tape, opaque approval procedures and economic policies that favour domestic over foreign businesses, which impede the flow of FDI. For instance, the EU–Eastern and Southern Africa Economic Partnership Agreement focuses on increasing transparency and simplifying administrative procedures, while incorporating sustainable development provisions that align investments with environmental and social goals. Similarly, the Canada–Mercosur FTA combines commitments to procedural cooperation and regulatory transparency with ambitious standards on environmental and labour protections, illustrating the integration of broader policy considerations into IF.

The TTIP, though stalled, exemplifies an attempt to align regulatory standards between two major economies (the EU and the United States) while ensuring that facilitation does not undermine domestic regulatory sovereignty. Likewise, the China–Gulf Cooperation Council Free Trade Agreement (China–GCC FTA) represents an effort to harmonise investment procedures among its members while fostering greater economic integration.Footnote ³⁵ The EU–India Investment Protection Agreement, with its dual emphasis on investor protection and facilitation, illustrates the increasing interplay between procedural efficiency and commitments to sustainability, labour rights and environmental safeguards.

Despite these shared aspirations, the progress of these negotiations has been uneven, highlighting the geopolitical and economic complexities of modern treaty-making. Disputes over market access, regulatory alignment, and the preservation of national policy space have emerged as significant stumbling blocks. In the case of the Canada–Mercosur FTA, environmental concerns and agricultural sensitivities have delayed progress, while the TTIP has faced strong public opposition tied to perceptions of diminished regulatory sovereignty. Similarly, Saudi Arabia’s insistence on protecting nascent industries has slowed the China–GCC FTA talks, underscoring the tension between liberalisation and domestic industrial policy. These extended negotiation timelines reveal not only the depth of geopolitical and economic divergence but also the risk that some treaties may remain indefinitely stalled, effectively placing them in legal and diplomatic limbo.

These treaties must be understood within the broader context of global efforts to codify IF in international law. They align with other recent developments, such as the WTO IFDA and the AfCFTA Protocol on Investment, which underscore the increasing prioritisation of procedural governance in investment frameworks. Taken together, these initiatives indicate a collective move to recalibrate the investor-State relationship. They move away from adversarial ISDS mechanisms and toward cooperative forms of governance that do not rely on adversarial dispute processes. This change affects both institutional design and expected conduct; coordination and administrative problem-solving assume a central role in place of default recourse to adjudication.

2.2. Recentring procedure over protection: doctrinal realignment in second and third-generation agreements

The development of second and third-generation facilitation treaties signals a reorganisation of legal purposes within investment agreements. Earlier treaties were structured around the protection of investor rights through substantive guarantees and access to arbitration. Facilitation treaties take a different approach. While often retaining basic investor protection standards, they assign legal authority to procedural mechanisms and treat these as central treaty obligations. Rather than insulating investors from State conduct, these instruments govern how States administer investment processes. In doing so, they reposition investment governance within the procedural and developmental structure of IEL.

Traditional international investment agreements (IIAs) emerged during the post-war period as fragmented, protection-centric instruments. BITs, like the Germany–Pakistan BITFootnote ³⁶ and the Netherlands-Pakistan BIT, were primarily designed to protect investors from political risks, such as expropriation and discriminatory treatment, through substantive guarantees. While these agreements succeeded in mitigating risks for investors, they often excluded procedural considerations, like transparency or administrative efficiency. This protectionist model created a two-sided relationship between investors and host governments. It encouraged a confrontational approach and made ISDS the main tool for resolving disagreements. Investors were able to contest local rules, often limiting efforts to protect the environment or support social programs. These treaties were written in an era when issues such as sustainable development were rarely part of investment talks. The agreements were aimed at shielding investments from political risk, not at improving government systems or ensuring openness. As a result, they failed to deal with problems that are now considered essential, such as clarity in decision-making, efficient administration, and long-term social and environmental outcomes. They treated the symptoms of risk without addressing the conditions that created those risks in the first place.

The emergence of second-generation IF treaties marked a clear move away from the older protection-focused BITs. It is worth noting that these agreements also began to include references to sustainable development, as seen in the Brazil–Mozambique and Brazil-Malawi CIFAs in Annex I. The coverage of these points, however, is fairly brief when compared to the more extensive provisions that appear in the third-generation treaties. The second-generation IF treaties began to institutionalise procedural norms as central elements of investment governance; they moved attention from dispute resolution to dispute prevention. Brazil’s CIFAs exemplify this transition.Footnote ³⁷ Agreements such as the Brazil–Mozambique CIFA establish focal points to assist investors and provide relevant information about investment policy issues,Footnote ³⁸ introduce obligations for transparencyFootnote ³⁹ and implement cooperation mechanisms to resolve issues before they escalate into disputes.Footnote ⁴⁰ Unlike BITs, which treated host State sovereignty as a limitation on investor protections, CIFAs reframe sovereignty as a foundation for partnership. CIFAs favour cooperative dispute prevention and indicate a broader move in IIL toward procedure and coordination; they emphasise collaboration rather than adversarial adjudication.Footnote ⁴¹ The ASEAN IFF further illustrates this trend by promoting regional transparency and administrative streamlining via the establishment of an information portal and the imposition of detailed streamlining guidelines respectively.Footnote ⁴² Although non-binding, the ASEAN IFF demonstrated how procedural norms can foster a cooperative investment climate even in the absence of formal enforcement mechanisms.

Third-generation IF treaties build on the procedural advances of their predecessors while embedding investment governance within global public policy objectives. These agreements, including the WTO IFDA and the AfCFTA Protocol on Investment, integrate facilitation measures with sustainability goals, capacity-building and technical cooperation.Footnote ⁴³ The WTO IFDA institutionalises advanced procedural measures, including transparency of investment measures (Section II: Transparency of Investment Measures), under which the establishment of a simplified information portalFootnote ⁴⁴ and a prohibition on the imposition of fees for information access,Footnote ⁴⁵ are introduced. Additionally, the agreement provides for capacity-building initiatives for least-developed countries (LDCs) (Section V: Special and Differential Treatment for Developing and Least-Developed Country Parties), such as targeted assistance and support.Footnote ⁴⁶ These provisions not only reduce bureaucratic barriers but also harmonise facilitation standards globally, reflecting a multilateral consensus on the importance of procedural governance.

Correspondingly, the AfCFTA Protocol on Investment tailors facilitation to the African context, emphasising regulatory coherenceFootnote ⁴⁷ and sustainable development.Footnote ⁴⁸ To promote investment flows, it encourages States Parties to set up a framework for coordination and collaboration between their respective national regulatory bodies. By encouraging cross-border regulatory uniformity, Article 7(4) strengthens the procedural advancements of third-generation treaties, lowering investor uncertainty and guaranteeing the successful implementation of facilitation measures.Footnote ⁴⁹ By embedding regional priorities, the Protocol ensures that facilitation measures align with Africa’s developmental and socioeconomic objectives. Finally, the EU–Angola SIFA exemplifies how bilateral IF treaties link procedural reforms with sustainability objectives. Articles 30(3) and 31(3)Footnote ⁵⁰ promote investments aligned with the UN SDGs. The agreement reinforces international cooperation on investment-related environmental policies and measures by encouraging bilateral, regional and multilateral collaboration through platforms such as the UN High-Level Political Forum for Sustainable Development, the UN Environment Programme, the UN Environment Assembly, multilateral environmental agreements and the WTO. By fostering dialogue and coordination across these institutions, the agreement underscores the role of IF in advancing global environmental governance. However, Article 42(1) underscores the parties’ commitment to technical assistance and capacity-building to strengthen Angola’s investment climate and facilitate the implementation of the agreement.Footnote ⁵¹

These treaties illustrate how third-generation IFAs move beyond administrative streamlining to address the structural inequalities and sustainability challenges that traditional IIAs failed to tackle.Footnote ⁵²

These developments have three fundamental consequences: the systemic realignment of IIL and IEL, the establishment of proceduralism as a transformative paradigm and the redistribution of power in investment governance.

1. (i) Systemic realignment: The progression from IIAs to IF treaties marks a systemic realignment in the architecture of IIL. Traditional IIAs evolved in a fragmented and reactive manner,Footnote ⁵³ responding to specific investor concerns without addressing systemic inefficiencies. By contrast, IF treaties represent a deliberate recalibration of legal priorities, embedding facilitation and sustainability as foundational elements of investment governance.Footnote ⁵⁴ This change reflects a broader orientation in IEL toward governance and inclusivity; it aligns investment law with global public policy objectives, including the SDGs and the Paris Agreement.

2. (ii) Proceduralism as a transformative paradigm: Proceduralism in IF treaties serves more than an operational role. It marks a substantive change in the approach to investment governance; procedural commitments become central rather than peripheral. IF treaties give institutional form to norms such as transparency, regulatory cooperation and dispute prevention. As a result, investment law functions less as a reactive, protection-oriented framework and more as a forward-looking, cooperative system that aims to reduce conflict and support sustainable development. On its face, while contributing to a broader reform agenda, sustainable development and proceduralism aim to address different issues—the former with fairness, transparency, due process and a more efficient investment process; and the latter with ensuring the balance between investor protection and human rights, social welfare and environmental protection and alignment with the broader SDGs are reached. Furthermore, tensions can arise between both aspects—the inclusion of sustainable development obligations, like additional investment screening requirements, can contravene proceduralism, while procedural requirements, including investor consultations, can go against the goals of sustainable development, thus leading to a potential undermining of States’ regulatory sovereignty. There are also points where sustainable development and proceduralism work together. For example, measures such as involving stakeholders, providing assistance to LDCs and improving transparency can support the goals set out in SDGs 16.6 to 16.10 on strong institutions and SDG 17.5 on partnerships.Footnote ⁵⁵ Procedural commitments can make these obligations more practical. Allowing stakeholders to attend meetings ensures that a wider range of interests are heard, which strengthens decision-making and supports social sustainability. This can be seen in provisions such as Article 4(4)(iv) Brazil–Mozambique CIFA.Footnote ⁵⁶ Consequently, the interplay between sustainable development requirements and proceduralism is symbiotic; they represent two separate but intertwining elements becoming a two-part solution to IIL’s challenges. Traditional IIAs relied on substantive protections to mitigate investment risks, often ignoring the root causes of those risks, such as regulatory opacity or inefficient bureaucracies. IF treaties address these systemic issues by institutionalising procedural norms, such as a single information portal and transparency,Footnote ⁵⁷ investor assistanceFootnote ⁵⁸ and investment promotion.Footnote ⁵⁹ This procedural turn reorients IIL from a static regime focused on adjudicating disputes to a dynamic framework that fosters ongoing collaboration between States and investors. By emphasising facilitation, these treaties transform investment governance into a proactive, relationship-building process, reducing the need for adversarial dispute resolution mechanisms.

3. (iii) Redistribution of power in investment governance: IF treaties also represent a rebalancing of power in the global investment regime. Traditional IIAs disproportionately empowered investors and capital-exporting States,Footnote ⁶⁰ often leaving host States (particularly in developing regions) without the tools to leverage foreign investment for equitable growth. Modern IF treaties address these asymmetries by strengthening host States’ capacity to regulate investments effectively while fostering sustainable development. For example, the AfCFTA Protocol on InvestmentFootnote ⁶¹ and the WTO IFDAFootnote ⁶² include capacity-building provisions designed to empower resource-constrained States. These measures not only enhance host States’ ability to implement facilitation reforms but also ensure that investment governance contributes to inclusive and sustainable development.

Ultimately, while elements of IF existed in earlier treaties, they were often marginal and overshadowed by the focus on investor protection.Footnote ⁶³ Around 2015, with the advent of Brazil’s CIFAs, one can argue that IF was ‘born’ as a distinct and central component of international treaties.Footnote ⁶⁴ This change marked the beginning of a new phase in IIL. Investment governance came to rely more on procedure and inter-State cooperation than on post-dispute enforcement. Later instruments, including plurilateral agreements such as the WTO IFDA and regional protocols such as the AfCFTA Protocol on Investment, build on that foundation and reinforce IF as a core feature of contemporary investment treaties. These instruments point to a broader recalibration of IIL toward facilitation, sustainability and inclusivity; IF moves from an emerging concept to an established component of international investment governance.

The move from traditional investment treaties to second and third-generation facilitation agreements marks a structural change in IIL. These instruments replace protection-based models with facilitation frameworks that respond to persistent criticisms of the earlier regime.Footnote ⁶⁵ They introduce procedural and sustainability commitments that reflect broader public policy aims. This reordering, grounded in procedural techniques and changes in institutional authority, recasts investment governance as a cooperative system aligned with development. It establishes a more stable and equitable foundation for the evolution of both IIL and IEL.

3.1. Transparency and predictability as legal preconditions for procedural governance

Transparency provisions foster legal certainty by ensuring timely access to regulatory information. Article 6.1 WTO IFDA requires parties to promptly publish measures of general application, including laws and regulations in official publications or online portals.Footnote ⁶⁶ Similarly, Article 7.1 mandates the disclosure of information about authorisation processes, such as timelines, fees and procedures,Footnote ⁶⁷ while Article 10.3 introduces opportunities for public comment on proposed measures.Footnote ⁶⁸

Furthermore, Brazil’s CIFAs institute focal points that serve as centralised information centres. For instance, Article 6(1) Brazil-Angola CIFA mandates that both parties maintain and provide updated information regarding applicable investment laws and regulations,Footnote ⁶⁹ thereby ensuring that investors are well informed about the relevant legal environment.

The RCEP adds another layer of sophistication to transparency measures. While its requirements are less detailed than those of the WTO IFDA, the RCEP uses non-binding language, including ‘endeavour’,Footnote ⁷⁰ and the phrase ‘subject to national laws and regulations’,Footnote ⁷¹ allowing States to undertake a flexible and best-efforts approach, without having to also sacrifice their regulatory autonomy. Notably, the provision of advisory service to foreign investors and the integration of the transparency requirements within a broader economic framework encapsulating areas such as trade in goods and services, makes the RCEP’s approach to transparency more holistic and harmonised. Paralleling Article 6 WTO IFDA, Article 17.3(1) RCEP also requires Member States to publish all laws and administrative decisions affecting investments and provide an opportunity for investors to comment on proposed regulations, while Article 10.17(1)(c) imposes a best-efforts obligation on States to foster information circulation as a way to facilitate investment.Footnote ⁷² The China–Ecuador FTAFootnote ⁷³ adopts a similar approach in Chapter 12 on transparency obligations, mandating that parties ensure transparency in investment-related measures and provide clear timelines for the publication and implementation of new rules.Footnote ⁷⁴

Centralised information systems further operationalise transparency. Article 8.1 WTO IFDA requires the establishment of a single information portal,Footnote ⁷⁵ and the ASEAN IFF adopts a comparable single-window system,Footnote ⁷⁶ reducing the complexity of navigating multiple regulatory authorities. Such provisions reflect a global move toward unified and accessible IF platforms.

3.2. Administrative streamlining as an instrument of regulatory coordination

Administrative streamlining reduces regulatory bureaucratic inefficiencies. Article 15 WTO IFDA emphasises clear, reasonable and objective authorisation procedures, including specific timelines for decisions.Footnote ⁷⁷ Similarly, Brazil’s CIFAs mandate simplified processes for obtaining licenses and permits, as seen in the Brazil–Mozambique CIFA,Footnote ⁷⁸ which commits to harmonising approval procedures to reduce delays.

With digitalisation being a cornerstone of modern streamlining efforts, Article 18 WTO IFDA promotes the use of information and communication technologies to expedite procedures.Footnote ⁷⁹ This is echoed in the EU–Angola SIFA, which encourages parties to accept electronic applications.Footnote ⁸⁰

The China–Ecuador FTA incorporates provisions that promote the use of digital tools to enhance efficiency in investment administration and regulatory processes. For example, Article 9.1Footnote ⁸¹ may be relevant as it addresses aspects related to reducing transaction costs and increasing the predictability of regulatory frameworks, which contribute to making host States more attractive to investors. Additionally, Chapter 10 on Electronic Commerce is particularly relevant for its emphasis on using digital platforms and technologies to improve efficiency.Footnote ⁸² It covers various aspects, including online application platforms, tracking systems and other digital tools designed to streamline administrative processes and facilitate trade and investment. Thus, the agreement addresses the use of digital tools through a combination of provisions to enhance efficiency.

3.3. Investor support and aftercare as treaty-based commitments to post-establishment engagement

Modern IF treaties recognise that supporting investors post-establishment is as important as entry facilitation. Article 22 WTO IFDA requires domestic focal points to assist investors with operational enquiries, ensuring sustained engagement.Footnote ⁸³ Brazil’s CIFAs go further by institutionalising an ombudsman mechanism, which provides direct support to investors facing administrative or regulatory challenges. For instance, the Brazil–Malawi CIFA includes commitments to post-investment support by establishing cooperation mechanisms aimed at addressing investors’ operational concerns.Footnote ⁸⁴

Prioritising aftercare, the RCEP, under Article 10.17(2), encourages Member States to provide ongoing support to investors, including assistance with operational compliance and the resolution of administrative hurdles.Footnote ⁸⁵ Similarly, the China–Ecuador FTA explicitly incorporates aftercare provisions,Footnote ⁸⁶ emphasising the importance of maintaining favourable conditions for reinvestment and operational expansion. These measures underscore a broader commitment to fostering long-term, mutually beneficial relationships between investors and host States.

3.4. Dispute prevention mechanisms as a procedural alternative to adversarial arbitration

Facilitation treaties favour dispute prevention and early resolution over adversarial ISDS. As pioneers, Brazil’s CIFAs establish joint committees for dialogue and early-warning systems.Footnote ⁸⁷ These committees, as seen in Article 15 Brazil–Angola CIFA, provide platforms for resolving disputes through consultation rather than arbitration.Footnote ⁸⁸ Similarly, the EU–Angola SIFA seeks to prevent and resolve potential disputes relating to its interpretation and application by creating the Committee on Investment Facilitation.Footnote ⁸⁹

Article 46 AfCFTA Protocol on Investment promotes similar cooperative approaches,Footnote ⁹⁰ encouraging mediation and other amicable means of resolving investment-related disagreements. Its Committee on Investment also plays an indirect role in dispute prevention. Particularly, it facilitates the Protocol’s implementation and its goals, one of which is to establish a strong legal framework to prevent, handle and resolve investment conflicts.Footnote ⁹¹

The WTO IFDA institutionalises dispute prevention through Article 22, which requires focal points to act as intermediaries in addressing investor grievances, ensuring that potential disputes are resolved at the earliest possible stage.Footnote ⁹² To quickly reach a mutually agreeable resolution on matters relating to the agreement, one of the functions of its Committee on Investment Facilitation is to promote and assist ad hoc dialogues between Member States.Footnote ⁹³ The Committee also has other functions, including developing IF information, experiences and best practice identification processes, and overseeing the agreement’s implementation, all of which contribute to dispute prevention.

The RCEP incorporates preventive measures, with Article 19.7(1) emphasising consultation and cooperation instead of typical ISDS;Footnote ⁹⁴ these provisions aim to foster trust and promote collaboration between investors and host States, contributing to a predictable and stable investment climate.

3.5. Capacity-building and technical assistance as treaty obligations shared across asymmetric parties

While traditionally used to foster investment protection frameworks, capacity-building and technical assistance provisions are also now a core component of facilitation treaties, especially in agreements involving asymmetry of legal and institutional capacity. Rather than treating implementation as a uniform obligation, these treaties incorporate differentiated responsibilities, structured around phased compliance and targeted institutional support. The WTO IFDA addresses this explicitly: Articles 35 and 36 set out legal commitments to provide assistance to LDCs,Footnote ⁹⁵ linking support to specific stages of implementation. These obligations are not secondary; together, they condition the legal operation of other treaty provisions by structuring when and how compliance must occur.

Additionally, Brazil’s CIFAs also integrate capacity-building into the treaty form. While the preamble of the Brazil–Mozambique CIFA references technical exchange and legislative autonomy, its operational provisions go further. The agreement includes formal mechanisms for institutional cooperation, legal training and administrative coordination, embedded in its governance architecture.Footnote ⁹⁶ These measures are not framed as external aid, but as shared treaty commitments that define the scope and pace of legal compliance across asymmetrically situated parties. Similarly, Article 43 AfCFTA Protocol on Investment incorporates commitments for technical assistance, focusing on harmonising regulatory frameworks across Member States to support regional integration.Footnote ⁹⁷ This alignment of regulations is designed to enhance cooperation and streamline processes, contributing to the broader goals of economic integration.

The EU–Angola SIFA includes capacity-building initiatives in Article 42,Footnote ⁹⁸ highlighting the importance of training programs to resolve the imbalance between two countries with asymmetric investment capacities. Such provisions ensure facilitation frameworks are inclusive and adaptable, addressing the structural disparities between developed and developing economies.

3.6 Sustainability provisions as legal channels for advancing public interest objectives

Sustainability is increasingly central to IF treaties. Articles 37 and 38 WTO IFDA underscore responsible business conduct, requiring investors to adhere to anti-corruption measures and environmental, social and governance standards.Footnote ⁹⁹ Similarly, Article 8(1) AfCFTA Protocol on Investment integrates sustainability into its provisions,Footnote ¹⁰⁰ emphasising investments that contribute to poverty reduction, environmental stewardship and social equity, and also repeatedly highlights it in its objectives.

The Australia–Singapore GEA establishes a standard for integrating green transitions and finance by ensuring that both nations’ commitments to achieving net-zero emissions are supported.Footnote ¹⁰¹ This is accomplished through the mobilisation of public and private investments in green and transitional activities necessary for progressing towards low-carbon economies. Similarly, Brazil’s CIFAs promote sustainability by including provisions that encourage investments aligned with the host State’s environmental and developmental priorities, as exemplified in the Brazil–Angola CIFA.Footnote ¹⁰²

The China–Ecuador FTA adopts a holistic approach to sustainability. Article 9.3 emphasises the importance of promoting environmentally responsible investments and fostering technology transfer to support SDGs.Footnote ¹⁰³ These provisions redefine IF as a tool for achieving global development objectives.

The integration of the six core legal categories—transparency, administrative efficiency, investor support, dispute prevention, capacity-building and sustainable development—which reorganise the relationship between investors and host States,Footnote ¹⁰⁴ marks a clear departure from earlier treaty practice. It moves beyond protection-centred models and introduces a cooperative approach based on procedural clarity, institutional performance and shared development priorities. The resulting structure relies on procedural tools and sustainability commitments to address long-standing concerns about legitimacy and effectiveness in investment treaty law, which protects investor interests while preserving domestic regulatory authority. It also links investment law to broader international objectives, including those found in the SDGs, thus supporting a more even and practical model of investment governance that responds to past inequities and promotes fairer outcomes.

4.1. From investor protection to procedural governance: redefining treaty function

IF treaties’ approach of focusing on the facilitation of investment processes represents a recalibration rather than a wholesale replacement of existing norms, aligning with Pauwelyn’s concept of incremental evolution in IIL as a response to critique.Footnote ¹⁰⁵ IIL now undergoes fundamental change. Reform, rather than abolition, remains necessary to maintain the system’s relevance; it requires procedural adjustment to address emerging pressures.Footnote ¹⁰⁶ A central feature of this change is the domestication of IIL. It assigns domestic legal frameworks and institutions a primary role in the implementation of treaty provisions.Footnote ¹⁰⁷ As noted by Chaisse and Dimitropoulos, such treaties require States to establish robust domestic investment ecosystems through the integration of legal measures, administrative practices and digital technologies.Footnote ¹⁰⁸ This decentralised approach enhances State sovereignty by empowering governments to regulate foreign investment using local institutions, rather than relying solely on international arbitration or external mechanisms.

This section argues that facilitation treaties alter the doctrinal function of investment treaties. The traditional model frames treaties as protective instruments, designed to insulate foreign investors from regulatory risk. In contrast, facilitation treaties are structured as performative instruments: they generate legal obligations that aim to improve administrative coordination and institutional responsiveness within the host State. This reconceptualisation of treaty purpose marks a departure from existing treaty practice and, to date, has not been fully theorised in the IIL literature.

The article identifies a distinct functional logic underpinning facilitation-based treaty design. These agreements do not primarily allocate risk or adjudicate harm. Instead, they create frameworks for regulatory performance. This insight is evident in how facilitation treaties reframe core obligations. For example, transparency is no longer a derivative guarantee flowing from the FET; it is a standalone obligation with concrete procedural content. Response timelines, enquiry points and digital publication requirements place the primary legal emphasis on institutional performance rather than on investor entitlements. What is protected is not the investor per se, but the reliability of the administrative environment.

This procedural reorientation also extends to dispute management. Where prior treaty generations embedded adversarial enforcement as a default mechanism, facilitation treaties place primary weight on early-stage institutional coordination. The approach serves more than administrative convenience; it indicates a redefinition of the treaties’ legal function. The central aim moves away from adjudication after a dispute arises and toward prevention through structured regulatory processes. This is an under-recognised development: dispute resolution is recast as dispute avoidance, implemented through procedural design within the regulatory system.

The article further proposes that proceduralism, in this context, is not ancillary to substantive law but constitutive of legal order. This claim extends existing debates in IIL by arguing that facilitation treaties do not merely deliver investor confidence through softer means; in fact, they generate legal regimes in which State capacity is legally constructed and operationalised. This challenges the assumption that treaty law primarily functions through rights-claim enforcement, showing instead that legal efficacy can emerge through process-based commitments designed to optimise institutional delivery.

Taken together, these observations support the broader thesis that IF treaties do not merely modify existing treaty practice. They implement a distinct design logic that treats procedure as the primary site of regulation, and that frames the treaty as an instrument that organises administrative conduct. Under this approach, the treaty functions less as a defensive device that constrains State action through liability and more as an enabling instrument that specifies institutional tasks, allocates responsibilities and structures cooperation. The literature has not yet offered sustained analysis of this design choice; the article develops an account that can support further theory on how IIL increasingly relies on procedural obligations and coordinated administration rather than on adjudicative enforcement.

4.2. Institutionalising proceduralism: four doctrinal commitments in facilitation-based agreements

Unlike earlier treaties that did not focus on sustainability language, IF treaties do not simply introduce procedural obligations: they construct a new legal order within IIL by embedding four doctrinal commitments: procedural obligation as a central treaty function; sustainability integration; equity-based differentiation; and regional norm development. These commitments operate not in isolation but as mutually reinforcing principles that reorganise the internal logic of treaty design. The argument developed is that these elements together constitute a facilitation-based treaty architecture that departs from prior models of investor-State regulation. Prior scholarship addresses transparency and sustainability in facilitation agreements, but it tends to treat these elements in isolation. This article offers the first structured legal account that treats them as components of a unified set of treaty techniques; it explains how they operate together within a single analytical framework. On this view, the treaty’s function moves away from the enforcement of investor rights and toward the organisation of State institutional performance. The relevant object of protection is the reliability of administrative processes, rather than the investor as such.

First, facilitation treaties redefine the treaty’s centre of gravity through procedural governance. Unlike traditional IIAs, where procedural provisions were secondary to substantive protections, facilitation instruments make procedure the object of binding legal commitments. Transparency portals, regulatory publication mandates, enquiry points and digital one-stop shops (now standard in instruments such as the WTO IFDA) are not mere administrative features; they are now treaty obligations. The State’s role is not to abstain from interference but to perform defined institutional functions. This model creates legal expectations for predictability, accessibility and interaction that serve as the operational baseline for treaty compliance. The finding here is that facilitation treaties legally encode performance standards that are not tied to rights enforcement but to institutional delivery, which has been under-theorised in existing IIL scholarship.

Second, the integration of sustainability objectives into facilitation treaties represents a marked departure from earlier treaty models, where environmental or social concerns were relegated to preambles or non-binding side texts. In the facilitation context, the SDGs are embedded directly into operational provisions. The EU–Angola SIFA and the AfCFTA Protocol on Investment, for example, treat responsible investment conduct not as an aspiration but as a proceduralised obligation to be implemented through institutional reforms, performance monitoring and home State engagement. The legal novelty here lies in the operationalisation of sustainability through facilitation instruments rather than substantive investment screening; in other words, green investments are differentiated from investments that are not concerned with sustainable development objectives or do not embody the spirit of sustainable development.

Third, facilitation treaties incorporate a differentiated obligation structure aimed at correcting systemic inequities in treaty implementation. Special and differential treatment (SDT), long associated with WTO law, is adapted into the facilitation context through flexible timelines, capacity-building requirements and built-in technical assistance obligations. These are not discretionary add-ons; they are legal commitments by capital-exporting States to support implementation in developing countries. This reflects a change in allocative logic. Treaty benefits and burdens no longer distribute evenly across parties; they vary in accordance with institutional capacity. The result is a differentiated structure of obligations and advantages. Allocation depends on the administrative resources and functional readiness of the relevant institutions, rather than on a uniform model of reciprocal commitments. The article identifies this as an underdeveloped strand of facilitation theory: SDT is a procedural equaliser, not merely a political concession.

Fourth, regional instruments function not just as experiments in treaty drafting, but as norm-generating systems in their own right. Agreements such as the ASEAN IFF and the AfCFTA Protocol on Investment do more than localise facilitation norms as they develop context-sensitive procedural models that influence multilateral design. These instruments establish templates for sequencing obligations, integrating digital procedures and linking facilitation to regional development goals. This article argues that regionalism, in this context, is not a stepping-stone to multilateralism but a site of legal innovation in its own right. It produces modular procedural norms capable of upward diffusion, which is an insight not fully captured in current treaty theory.

Taken together, these four doctrinal commitments demonstrate that facilitation treaties do not merely codify best practices. They construct a distinct legal order within IIL, grounded in the performance of procedural obligations rather than the protection of private rights. This facilitation-centred order redistributes legal responsibility: from enforcing investor claims to ensuring State institutional capacity. The article presents this model as a foundational change in treaty function and as a basis for rethinking the legal structure of investment governance. It argues that this reorientation alters how treaty obligations operate in practice; the central organising concern becomes institutional performance rather than the direct enforcement of investor rights.

4.3. Limits of coherence: legal fragmentation, institutional asymmetry and unequal implementation capacity

This section argues that the procedural model advanced by IF treaties carries internal legal tensions that emerge most clearly at the point of implementation. Facilitation treaties rely on decentralised execution, variable State capacity and overlapping instruments without formal hierarchy.Footnote ¹⁰⁹ These features are not accidental—they are structural. They reflect a legal design that replaces central enforcement with distributed institutional performance. As a result, facilitation regimes face distinctive problems of coherence, consistency and accessibility. The difficulties associated with fragmentation, unequal capacity and power asymmetry are not just operational—they raise questions about the durability and fairness of procedural treaty governance in the absence of coordinating institutions. The analysis that follows identifies three sources of systemic strain: fragmented authority, uneven capacity and the absence of a coordinating centre. It examines how facilitation instruments attempt to manage these pressures through structured legal mechanisms, including transparency benchmarks, phased compliance obligations and formalised support frameworks. These provisions are assessed not as administrative tools but as attempts to preserve legal coherence within a plural, performance-based treaty system.

Legal fragmentation in IF treaties exists when agreements do not impose mandatory requirements that Member States have to follow. For example, the WTO IFDA mandates the publication of measures affecting investment through single-window systemsFootnote ¹¹⁰ and ensures that all measures within the agreement’s scope remain reasonable, objective and impartial.Footnote ¹¹¹ However, regional agreements, such as the ASEAN IFF, follow a voluntary approach, which, while emphasising transparency and the creation of appropriate mechanisms, does not impose enforceable obligations. This flexibility allows for regional adaptability but also leads to variations in implementation. Similarly, the AfCFTA Protocol on Investment incorporates regionally tailored facilitation measures, but its overlap with BITs in Africa creates potential conflicts in procedural standards. The regional approach of the Protocol may not align with the preexisting facilitation pledges, dispute resolution procedures and transparency standards found in several BITs. For reference, different BITs have different procedural requirements for regulatory openness, ISDS and investment approvals, which cause confusion for both regulatory agencies and investors. This makes it difficult to ensure a consistent and predictable investment climate across the continent by increasing the risk of forum shopping, contradictory legal obligations and regulatory fragmentation. Similar concerns arise in the context of IF treaties. The proliferation of facilitation agreements at bilateral, regional and multilateral levels has led to overlapping procedural standards, divergent implementation mechanisms and inconsistent transparency requirements. These differences reduce legal clarity, create administrative burdens for host States and weaken the effectiveness of facilitation efforts intended to streamline investment procedures.

To address these challenges, treaties should integrate mechanisms for inter-treaty alignment. A promising approach is the adoption of common benchmarks for transparency, such as centralised electronic portals mandated by Article 8 WTO IFDA. This is supported by precedent in the investment treaty system, where core investor protection standards (such as MFN treatment, national treatment and safeguards against expropriation) have already been broadly harmonised across BITs, demonstrating the feasibility of convergence even in decentralised treaty networks. These tools harmonise the publication of regulations and ensure consistency across agreements, reducing legal uncertainty for investors.

Capacity constraints and implementation barriers also significantly hinder the ability of developing nations to effectively operationalise IF measures. These difficulties reflect broader issues of institutional readiness and asymmetry, which limit the capacity of some States to meet procedural commitments on equal terms. Limited administrative, technical and financial capacities often prevent these countries from meeting treaty requirements or establishing robust systems. For instance, inadequate infrastructure hampers the development of single-window platforms, while a shortage of legal expertise impedes regulatory consistency. Similarly, insufficient training for public officials undermines the effectiveness of investor engagement efforts. Specific treaty provisions further illustrate these barriers. Articles 6–12 WTO IFDA stress the importance of transparency but expose the operational difficulties faced by States with limited resources. Additionally, Article 43(1) AfCFTA Protocol on Investment highlights the necessity of capacity-building initiatives and technical support to harmonise national policies within regional frameworks, while Article 42 establishes the Pan-African Trade and Investment Agency, whose functions include providing technical and capacity-building assistance and support and acting as a facilitator in the exchange of information and dialogues between national focal points, investment promotion agencies and other stakeholders.Footnote ¹¹²

Addressing capacity deficits necessitates the inclusion of comprehensive technical assistance frameworks within IF treaties. These frameworks must focus on enabling progressive implementation, institutional strengthening and technological modernisation to support resource-limited States. Phased implementation provisions, such as those in Article 28.1 WTO IFDA, allow LDCs to adopt measures incrementally, alleviating immediate resource pressures. Similarly, institutional support mechanisms, exemplified by the EU–Angola SIFA, provide for technical assistance and regulatory training, fostering long-term capacity development.Footnote ¹¹³ In this agreement, Angola can request needs-based technical assistance, subject to domestic IF reforms; the provision of technical assistance and capacity-building is also aided through needs identification, information exchange and capacity-building support and technical assistance progress reviews.Footnote ¹¹⁴ Furthermore, the emphasis on digital transformation in Article 18 WTO IFDA highlights the potential of information technology to streamline administrative processes. However, the success of such initiatives often hinges on donor-funded programs aimed at enhancing digital infrastructure in developing nations. Moreover, the establishment of dedicated facilitation funds, supported by developed nations and international organisations, could finance infrastructural and technical improvements in resource-constrained countries, enabling them to participate more equitably in global investment frameworks.

Equity and power disparities significantly affect the implementation of IF treaties, often leading to unequal advantages for developed and developing nations. Wealthier countries, with their substantial resources and institutional capacities, are better positioned to meet treaty requirements and attract considerable investment flows. In contrast, developing nations frequently encounter systemic barriers, which impede their ability to secure sustainable, high-value investments. SDT provisions, such as those outlined in Section V WTO IFDA on Special and Differential Treatment for Developing and Least-Developed Country Parties,Footnote ¹¹⁵ allow implementation delays or conditional compliance based on the receipt of technical assistance. To facilitate the overall implementation of the IFDA (which includes the furthering of technical assistance and capacity-building support to LDCs), the WTO IFDA Committee on Investment Facilitation can seek advice from international organisations and invite them to its meetings; not only does this enhance inter-treaty coordination on IF, but it also ensures that the efforts to implement the agreement are distributed equally between both developed and developing countries.Footnote ¹¹⁶ Similarly, Articles 42(3), 42(4) and 43 AfCFTA Protocol on Investment emphasise tailored support and inclusive development, recognising the varying capacities of Member States.Footnote ¹¹⁷

Overall, operationalising these provisions by linking compliance obligations to measurable capacity-building outcomes ensures that implementation remains both practical and effective. Regional cooperation, as the ASEAN IFF exemplifies, can further reduce capability disparities by encouraging the sharing of resources and best practices among Member States.

Given the absence of an institutionalised coordinating centre within the investment regime, States lack a central forum for collective decision-making, standard-setting or oversight. In this context, trade commissions established under FTAs present a potential avenue for States to assume greater governance responsibilities.Footnote ¹¹⁸ However, their informal status raises concerns about transparency, accountability and consistency, particularly when their functions intersect with adjudicative processes or operate in parallel to other treaty-based mechanisms. Without a central authority to integrate these efforts, the risk of duplication, legal fragmentation and institutional overreach remains significant. To effectively attract sustainable FDI and support economic recovery, IF frameworks should be designed around the principles of contribution to sustainable development, prioritising conflict prevention and management and drawing lessons from established trade facilitation processes.