Bilateral Investment treaties
Introductions
Bilateral investment treaties are a type of foreign direct investments (FDI). Foreign direct investments refer to direct investments into production or businesses in a country by a company or an individual in another country. This is achieved either by buying a company in a target country, or by the expansion of the existing business operations in that country. Bilateral investment treaties refer to agreements that establish the terms and conditions that have been put in place in relation to investments by companies and national companies on one state in another state[1].
BITs include acquisitions and mergers, re-investing profits earned from overseas operations, Intra company loans and the building of new facilities. BITs are mainly established through trade pacts. Trade pacts are defined as wide ranging tax, tariff and trade treaties that involve the application of trade guarantees.
The most common types of trade agreements are the preferential and the free trade types. They were, however, concluding in order to eliminate tariffs, quotas and other trade restrictions on items traded between signatories. For a trade pact to be classified as bilateral there must be two sides acting as signatories. Each side could be a country, a trade bloc or an informal group of countries.
By a process known as sophistication, BITs can also be classified as a separate trade pact. They are politically contentious since they may change due economic customs and deepen interdependence with trade partners[2].
The evolution of international investment law
All law involves a resolution of conflicting interests. International law, however, lacks a centralized authority to solve conflicts of interest. Domestic systems have decision making authorities which can resolve such conflicts. International law systems lack such an authority and therefore, conflicts are bound to be protracted. For the conflict to be resolved, the system has to go through a resolution process that involves negotiated settlements and treaties. The adjustments involve principles that are acceptable by states. International law composes a long series of adjustments which are made in response to conflicts. The law remains in a state of flux as the adjustment process never ends. The international law on foreign investments follows the same process of adjustment. The principal reason for conflict comes as a result of who controls what in terms of foreign investments[3].
The most advanced ideology in the global trade market is increasing efficiency through free trade. Primary concerns are, however, raised concerning the proliferation of BIT. The concerns leveled against BIT relate to confusion, exponential increase of business costs, incoherence, unpredictability and unfairness in trade relations[4].
Formerly, BIT was a friendship, commerce and navigation treaty. In such a form of treaty, a trader is entitled to full liberty to enter into, reside in, trade with and pass all his merchandise through all parts of the dominion o n country in which he is applying his trade. The businessperson is also entitled to enjoy all the privileges and advantages with respect to commerce[5].
BITs grant a number of guarantees to the investments made by an investor of one contracting State in another territory. The guarantees include equitable and fair treatment, full protection and free transfer of means and security protection from expropriation. Many BITs allow for alternative ways of resolving disputes. For instance, an investor under BIT whose rights have been violated can request for international arbitration, mostly under the jurisdiction of the ICSID (International Center for the Settlement of Investment Disputes). This is a better alternative as compared to suing the host state in its own courts[6].
Over 1200 BITs have been signed by EU member states for the past few years. These treaties are meant to protect their investors abroad. Through BITs, multinational corporations have the right to challenge governments’ economic, social and environmental social regulations if they threaten to affect their investments’ profitability[7].
The BIT has a basic program with a number of aims which are briefly discussed in the following paragraphs:
The BIT aims to protect the overseas investments in countries lacking investor rights protection. It achieves this by means of existing agreements, which include but, not limited to commerce, navigation, modern treaties of friendship and free trade agreements.
BITs aim to encourage investors and investments to adopt domestic policies that are market oriented and which treat private investments in an open, transparent way which is non-discriminatory.
BITs aim to support the development of the international law standards in a manner that is consistent with its objectives.
The BITs benefit the investors in six crucial ways as mentioned in the following paragraphs:
They establish well defined and clear limits concerning the expropriation of investments. They also provide a framework for prompt, efficient and adequate compensation in case of an expropriation situation.
They offer a leeway through the transferability of funds that are investment related, either into or out of a host country without any major delays while involving specified market rates.
The BITs require investors and their covered investments to be treated fairly and just as the host party treats its own citizen investors and their investments. It affords that the better sense of treatment to the investor, the likely he is to reach full peak in terms of investment profits. The profits will be realized from the establishment to acquisition, through the process of management, operation, expansion, up until disposition[8].
The BITs also restrict imposition of performance requirements. These include export quotas and local content targets. These are considered as a preamble for the acquisition, establishment, management, operation and conduct of an investment.
BITs give investors from each party exclusive right to submit a dispute of investment with the government of the other party with respect to international arbitration standards. As a result, there is usually no need to use that particular country’s domestic court.
Covered investors are given right by the BITs give to engage the top managerial personnel of their desire, regardless of their nationality.
Because of these exclusive and supreme rights, BITs threaten democratic governance, public policy, and the general public interest. Anybody concerned with social and environmental policies must, therefore, be alerted by BITs[9].
Introduction to foreign investment
A foreign investment refers to establishing a new company or branch of a foreign company by a foreign investor, where he shares acquisitions of the company established with the country of trade. He also shares the percentage of shares acquired outside the stock exchange or 10 percent or more of the shares. He also votes for power of the company acquired through the stock exchange by means of, but not limited to the following economic assets: Assets acquired from abroad by the foreign investor, machinery, equipment, bonds and stocks of foreign companies (with the exclusion of government bonds), intellectual and industrial property rights[10].
A famous economist, fund describes a foreign investment as one made to accrue long term interests on an enterprise scale that operates in an economy different than that of the investor. The investor in turn purpose to efficiently manage the enterprise effectively.[11].
The other class of assets acquired from the country by the foreign investor include financial claims, any other investment-related rights of financial value, reinvested earnings, revenues, or, Commercial rights to explore and extract natural resources.
Previously, foreign investments were made by individuals or groups of loosely organized associates venturing abroad to make quick profits. The law was ratified much, especially on the clause pertaining to state responsibility for injuries on aliens. This clause was developed in order to protect businessmen operating in foreign countries[12].
A foreign investor is a real person who possesses foreign nationality and the country of trade national resident abroad, and foreign legal entities established under the laws of foreign countries and international institutions, who makes foreign direct investment in the given country[13].
The international legal framework
Despite a wave of privatization, control by the state in the significant industrial and natural resources sector has remained dominant.
Some of the primary actors in the foreign investment platform include the World Bank, the International Monetary Fund and the Organization for Economic Cooperation and Development (OECD). These institutions support the economic notions of the developed world that foreign investment should be liberalized. The United Nations Commission on Trade and Development (UNCTAD) holds the traditional role of supporting the viewpoint of the developing states[14].
Various NGOs also have a role in foreign investment. They have come up recently mainly to protest against the abuse on human rights and due to multinational companies.
Other actors include the International Chamber of Commerce, which participates in international conventions on foreign investments; to give economic guidelines as pertains to trade and investments[15].
A vital principle in international law is National treatment. It is found in many treaty regimes. In this principle, both locals and foreigners are taken as equals by the state. If citizens of a particular state are granted a particular right, privilege or benefit by the state, then national treatment states that the same advantages must be extended to the foreigners while they reside in that particular country. From an international agreement perspective, all citizens of other states bound by the agreement must be treated as the citizens of the particular state. All the goods, both local and imported, should be treated equally, especially if the imported goods are already on the market[16].
Under international law, diplomatic protection is the process by which a state takes a diplomatic action against another state. The diplomatic action is done on behalf of the citizen whose interests and rights have been negatively affected by the other state. Diplomatic protection goes through different processes in the International Court of Justice. The prosecuting state has discretionary rights and takes any form of action allowed by international law. It can include negotiations with the other State, arbitral proceedings, consular action, judicial, economic and political pressure or other forms of dispute settlement that are peaceful[17].
Since 2006, articles on diplomatic protection have been adopted by the International Law Commission. These articles regulate the entitlement and exercise of diplomatic protection. Despite being a desirable principle, it means that whatever a state deprives its citizens of; it does the same too with the foreigners.
However, there is an opposing principle which agitates for an international minimum standard of justice. This standard provides a basis for accessing to judicial processes and protecting rights[18].
Expropriations
Developing nations and industrialized ones are the main contenders in national treatment policies and minimum standards. This mainly takes place in the context of expropriations. Most developing nations have the power to control the property and resources owned by their citizens. By extension, therefore, they wish to do the same when it comes to the property of the foreigners.
The United Nations constituted a General Assembly resolutions conference to address the issue of national treatment. Despite this, matter of expropriations is still handled through the channel of treaties that involve states and signing a contract with private entities. This is preferred over the process of relying upon international customs[19]
National treatment comes into effect only when a service, item of intellectual property, or product has entered the market. Charging customs duty on an import cannot, therefore, be termed as violating the national treatment policy. This applies even in the case of locally-produced products, notwithstanding the fact that they are charged a different amount of tax. In the current world, international investment law arbitrations claim two broad categories that are under state responsibility: fair, equitable treatment and nondiscrimination. These two categories of treatment established by states to investors form a fundamental basis for foreign investment. Saluka v Czech Republic is an example of a recent bilateral investment treaty award. With the changing trends in the foreign investment market, there is little difference in ways through which minimum standard provisions and non-discrimination policies are applied. This is clearly evident in the example of Saluka v Czech Republic. Saluka was not based on a non-discrimination provision. It was based on the treaty’s minimum standard of treatment. The assessment of this treaty and minimum standard provisions is actually being interpreted and applied. With regard to individuals, it appears settled in the context of investment treaty arbitration that an individual with more than on citizenship has the opportunity-subject to explicit restrictions in the bit itself to rely on any of them as long as the one he relies on in the case at hand is effective[20].
The national regulatory framework and host state laws
Due to an unprecedented failure of financial institutions, regulatory interventions have been prioritized by governments. Steps such as the initiation of credit rating agencies (CRAs), measurement and management, including adequate risk monitoring, have proven to be quite a challenge. On the other hand, regulating creative financial institutions has not promoted transparency and disclosure in the business world[21].
BITs involve a lot of financial innovations. Financial innovations were strongly linked with economic growth before the recent financial crisis occurred. At the height of the crisis, critiques arose unequivocally to question the utility of financial innovation. After a thorough assessment of the strengths and weaknesses of financial innovation, the EU and the USA undertook transparency initiatives in order to exploit a number of financial innovations, which have contributed, to the history of financial markets for the last three decades, including derivatives hedge funds, and credit ratings. They then put regulations in place in relation to BITs in order to ensure a repeat of the same does not occur. Such regulations will greatly impact future financial innovations. The General Agreement on Trade in services (GATS) of the World Trade which was instituted in the 1990s due to financial innovations was also greatly affected by the economic downturn. The regulation boundaries continue to grow. This implies that more stringent rules are put in effect against BITs. The regulatory growth is increasing the suspicion in countries with regard to the home-country financial regulations. The trade in financial services is, however, not affected. Despite this, GATS seems to be running out of analytical tools. This fact is undermining its role in the global market. Within this new land after almost five years, the financial turmoil keeps pace with the early upheaval of 2007 touching upon financial institutions being succeeded by a sovereign debt crisis hitting the Eurozone. Such events have raised serious doubts about the correctness of the deregulatory practices during three decades of neoliberal orthodoxy in the financial sector, mostly hailed by developed countries for their efficiency[22].
Principles of international investment law
The crisis has led to a reassessment of several foundational principles and crucial practices in financial policy-making. This has also led to the recognition that significant changes to the structure and supervision of the global financial system are warranted. More fundamentally for the future of finance, as a result of the crisis, financial innovation has been demonized by many as the root of all evil that chases the financial industry. A questionable mentality that has led to deceitful practices extending over several years appears embedded in the contemporary culture of global finance. In the aftermath of one of the most severe crises in the history of finance, the sector continues to be hit by high-profile scandals. From the partial collapse of the futures markets after the demise of MF Global and the recent Peregrine scandal, the confidence in the sector and its mainly failed self-regulatory practices are busted. With it, there is increasing concern about the optimal way of regulating finance and the aptitude of the institutions to be chosen for such tasks: the deputy governor of the Bank of England, Paul Tucker, was accused the theoretically limiting case of zero marginal transaction costs and dynamically complete markets[23].
Why financial service providers innovate? Innovating in the financial sector through extensive financial engineering has enabled them to maximize profit vis-a-vis their competitors.
Indeed, financial innovation can generate monopoly rents for the innovating provider, just as technological innovation yields monopoly rents for the entrepreneurs. For instance, the creation of a financial method allowing the more precise assessment of the viability of a given project gives a valuable first-mover advantage to its creator. First-mover advantages in financial innovation are not necessarily related to exorbitant profits; rather it is the expertise and reputation for expertise among potential competitors that can be obtained through innovation[24].
This expertise involves the ability to exploit the properties of the innovative product to the benefit of the developer or issuer; the ability to price the product in the market accurately (which does not necessarily lead to higher prices when compared to imitators); quite the contrary as they may charge lower prices), and know-ledge of the market of potential investors in the product. However, the literature on financial innovation reveals that a strong relationship exists between innovation and market share.The more innovators become larger, the more they innovate. Interestingly, benefits from financial innovation do not necessarily stem from patenting. Evidence from Europe, for instance, suggests that a more collaborative approach among competitors and other market participants or interested parties is being developed with respect to financial innovation[25].
Importantly, for quite a considerable time, financial innovation seems to have been erroneously associated with the size of a given financial institution. This may also be because research on innovation in manufacturing was considered relevant for financial innovation, as well. However, it has become clear that financial innovation has its own dynamics and thus needs to be examined in its own right.
There is not a treaty or an international tribunal jurisprudence that has so far developed compensation standard or clearly distinguished expropriations that are non-compensable and which result from state powers exercising their policies and regulating their expropriations. Despite there being a strong case in favor of the recognition of the non-compensable expropriation category, especially in instances where there is interference of regulations relative to foreign investments, need to protect human rights and the environment remains paramount. Besides this, there are some cases of legitimate regulatory expropriation which require compensations[26].
Another problem that arises is the absence of well-defined and agreeable standards pertaining to compensation when investment treaties are breached in another way different expropriation. There is a need to create an appeal mechanism to mitigate arbitral awards. BITs also need to be revised the various contracting state parties through signing protocols that serve to accommodate possible solutions to any existing shortcomings. BITs should define terms which delimit the amount of compensation. They should also provide remedies different from monetary forms of compensation. The general view of imposing limits to the amount for compensation, however, poses a controversy. The problem seems to beinclined to insufficient treatment of causation. In hand with this is an extravagantly generous interpretation by tribunals on grounds which justify the foreign investor’s recovery. The mechanism employed in this is the state responsibility. Forms of redress other than compensation can also be employed. Redress, contrary to infrequent forms of reparation, is established through fundamental principles of international law pertaining to state responsibility. For the reconciliation of the promotion of foreign investment with competing policies, the challenge comes in the form of victims of foreign investors’ activities that violate human rights besides causing environmental degradation. A more challenging fact is that, in order to reconcile the promotion of foreign investment with competing policies, victims of foreign investors ’ activities,which violate human rights and cause environmental degradation. For such cases, access to international courts and tribunals should be availed[27].
International law and other areas of international law
Some of the foreign investors end up introducing illegal trades into the country of trade. For example, some of them begin to peddle drugs and ammunition. By the sale of illegal drugs, they promote drug abuse. Due to the fact that they are under diplomatic protection, it becomes difficult to prosecute them locally in a court of law as they enjoy diplomatic immunity[28].
NGOs campaign against using BITs. They cite reasons that BITs mostly to protect foreign investors who lack an obligation to protect the environment, natural resources, labour rights, and social provisions.
Mechanisms of an investment dispute settlement are an integral part of the BITs. They allow the foreign investors to by-pass the domestic courts and sue the sovereign states before internationally acknowledged arbitration panels. This kind of behavior makes a given state to lose its sense of sovereignity. This is because laws that identify it as a sovereign state are trampled upon by the diplomatic immunity of the foreigner. Because of this, taxpayers have been cost millions in compensations and legal expenses. This erodes the government’s ability to act and treat its’ citizens according to their best interests[29].
Bilateral investment treaties threaten public policy, public interest and democratic governance and should alert anybody concerned with environmental and social policies.
Public interest can be put before corporate profits due to opportunities presented so as to break away from the current investment policies. The competence of foreign investments has been moved from the 27 European member states to the European Union Level. This is as a result of the signing of the Lisbon treaty. Currently, the European Commission, parliament and council are discussing the directions of the future EU investment policy and the content[30].
Development and environmental organizations, human rights, social movements as well as trade unions must voice their concerns and agitatefor a balance in an investment policy that is not merely concerned only with investor rights, but also holds investors accountable. Besides this, it promotes public interests and protects them, promotes environmental sustainability and human rights[31].
The bilateral investment Treaty (BIT) protects the foreign investors, assisting them in its efforts to develop its economy. It achieves this by creating more favorable conditions for foreign private investment, thus strengthening the private sector[32].
The treaty is fully consistent with the EU policies towards domestic and international investments as outlined in the United Nations Commission on International Trade Law (UNCITRAL). A particular part of this policy that is reflected in the BIT is that EU investment abroad and foreign investment in the European Union should be given national treatment[33].
Under the bilateral investment treaty, the Parties involved also agree to international law standards as relates to expropriation and the compensation for expropriation; freedom of investments from performance requirements, free transfer of funds associated with investments; equitable; fair, and most-favored-nation treatment. Also considered is the investor’s or investment’s freedom to decide how to resolve disputes with the host government through the process of international arbitration[34].
The problem mainly with BIT as discussed previously is the biasness towards the protection of investor interests while sidelining the host state interests. BITs cannot be extended to serve the interests of the whole state as this is like to promote a state that is full of anarchy. Unlike an investor who is considered individually, for the case of a state, in case there is an expropriation in the BIT, then the most likely outcome to settle the economic difference might be a war. Unlike an investor’s interests, a state cannot be fully guaranteed diplomatic protection by another state hence BITs do not work in their favor[35].
The bilateral investment treaty (BIT) with another country is based on the opinion that an open investment policy promotes economic growth. Such a treaty helps the EU, for example, in its efforts to develop economically, through the creation of favorable conditions for foreign private investment. This, in turn, strengthens the development of the private sector. It is EU policy; however, to give advice to potential treaty partners during the process of BIT negotiations so that the termination of a BIT does not result in immediate increases in private foreign investment flows[36].
Foreign investors under the BIT are likely to engage in acts of corruption and money laundering due to the supreme authorities that they enjoy under diplomatic protection. The host state, therefore, bears the brunt of the foreign investor’s contravention of the terms and conditions stipulated in the BIT. The international investment law takes into cognizance the fact that states may end up treating foreign investors in unfavorable ways due to their breach of the treaty. Human rights obligations, anti-corruption measures and environmental protection policies are clearly outlined in the Bilateral Investment treaty. A foreign investor is bound to hold the environment in high regard and not subject it to pollution of any form, whether air or water. The foreigner is also expected to uphold the dignity of the human being by not coercing them to engage in acts which violate their morality or engage them into drug abuse[37].
In addition to this, the foreigner is expected to uphold honesty and diligence during the conduction of his investments. Deeds of corruption are totally prohibited, and the foreigner is bound to lose his business permit in the host State if the matter is taken to the International Court of Justice and the foreigner is prosecuted[38].
Conclusion
In conclusion, the Bilateral Investment treaty is heavily biased towards the foreign investors than the host state mainly due to its origin and its structure. Most foreigners enjoy diplomatic immunity in the host countries and therefore, they end up taking advantage of immunity and evade the payment of taxes, and even operate at low cost tariffs and quotas thereby causing the host states to run into negative debts because it is their money that is drained. There should be a proper understanding first between the parties signing BITs and the clauses should be properly understood as outlined under the International Investment Law. Failure of this runs either party involved in the trade agreement into a state of expropriation[39]s
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[1]Akgul, Zeynep. The Development of International Arbitration on Bilateral Investment Treaties. Universal-Publishers, 2008, p. 117.
[2]C McLachlan, L.Shore, M. Weiniger. International Investment Arbitration. Oxford University Press, 2008, p. 32.
[3]Andrew Newcombe, Lluís Paradell. Law and Practice of Investment Treaties: Standards of Treatment. Kluwer Law International, 2009, p. 37.
[4]Tudor, Ioana. The Fair and Equitable Treatment Standard in the International Law of Foreign Investment. Oxford University Press, 2000, p 82.
[5]Rudolf Dolzer, Christoph Schreuer. Principles of international investment law. Oxford University Press, 2008, p 132.
[6]Law, United Nations Commission on International Trade. UNCITRAL arbitration rules. United Nations, 1977, p. 165.
[7]Salacuse, Jeswald W. The Law of Investment Treaties. Oxford University Press, 2010, p 140.
[8]Law, United Nations Commission on International Trade. UNCITRAL arbitration rules. United Nations, 1977.
[9]Akgul, Zeynep. The Development of International Arbitration on Bilateral Investment Treaties. Universal-Publishers, 2008, p 211.
[10]Devesh Kapur, John Prior Lewis, Richard Charles Webb. The World Bank: Its First Half Century. Brookings Institution Press, 1997, p 82.
[11]R. Doak Bishop, James Crawford, William Michael Reisman. Foreign Investment Disputes: Cases, Materials, and Commentary. Kluwer Law International, 2005, p. 184.
[12]Beveridge, Fiona. The Treatment and Taxation of Foreign Investment Under International Law: Towards International Disciplines. Juris Publishing, Inc., 2000, p. 221.
[13]Fatouros, Arghyrios A. Transnational Corporations: The International Legal Framework, Volume 20. Routledge, 1994, p. 66.
[14]Gráinne De Búrca, Joanne Scott. The EU and the WTO: Legal and Constitutional Issues. Hart Publishing, 2001, p.41.
[15]Hallward-Driemeier, Mary. Do bilateral investment treaties attract foreign direct investment? World Bank, Development Research Group, Investment Climate, 2003, p. 367.
[16]Law, United Nations Commission on International Trade. UNCITRAL arbitration rules. United Nations, 1977, p. 146.
[17]Rudolf Dolzer, Christoph Schreuer. Principles of international investment law. Oxford University Press, 2008, p. 152.
[18]Mutchlinski, P.T. Multinational Enterprises and The Law. Oxford University Press, 2007, P. 81.
[19]Beveridge, Fiona. The Treatment and Taxation of Foreign Investment Under International Law: Towards International Disciplines. Juris Publishing, Inc., 2000, p.89.
[20]Paparinskis, M. Basic documents on international investment protection. Hart, 2012, p 205.
[21]Mutchlinski, P.T. Multinational Enterprises and The Law. Oxford University Press, 2007, p. 117.
[22]Bederman, David J. International Law Frameworks, 3d. Foundation Press/Thomson Reuters, 2010, p. 67
[23]Rudolf Dolzer, Christoph Schreuer. Principles of international investment law. Oxford University Press, 2008, p. 115.
[24]Paparinskis, M. Basic documents on international investment protection. Hart, 2012, p 53.
[25]R. Doak Bishop, James Crawford, William Michael Reisman. Foreign Investment Disputes: Cases, Materials, and Commentary. Kluwer Law International, 2005, p. 43.
[26]Salacuse, Jeswald W. The Law of Investment Treaties. Oxford University Press, 2010, p. 223.
[27]Sasse, Jan Peter. An Economic Analysis of Bilateral Investment Treaties. Springer, 2011, p. 163.
[28]Akgul, Zeynep. The Development of International Arbitration on Bilateral Investment Treaties. Universal-Publishers, 2008
[29]Seville, Catherine. EU Intellectual Property Law and Policy. Edward Elgar Publishing, 2009, p. 187.
[30]Bederman, David J. International Law Frameworks, 3d. Foundation Press/Thomson Reuters, 2010, p. 334
[31]Sornarajah, M. The International Law on Foreign Investment. Cambridge University Press, 2004, p. 229.
[32]Andrew Newcombe, Lluís Paradell. Law and Practice of Investment Treaties: Standards of Treatment. Kluwer Law International, 2009, p. 57.
[33]R. Doak Bishop, James Crawford, William Michael Reisman. Foreign Investment Disputes: Cases, Materials, and Commentary. Kluwer Law International, 2005, p. 321.
[34]Beveridge, Fiona. The Treatment and Taxation of Foreign Investment Under International Law: Towards International Disciplines. Juris Publishing, Inc., 2000, p. 106.
[35]Seville, Catherine. EU Intellectual Property Law and Policy. Edward Elgar Publishing, 2009, p 135.
[36]Akgul, Zeynep. The Development of International Arbitration on Bilateral Investment Treaties. Universal-Publishers, 2008, p. 57
[37]Bederman, David J. International Law Frameworks, 3d. Foundation Press/Thomson Reuters, 2010, p. 443
[38]C McLachlan, L.Shore, M. Weiniger. International Investment Arbitration. Oxford University Press, 2008, p 121.
[39]R. Doak Bishop, James Crawford, William Michael Reisman. Foreign Investment Disputes: Cases, Materials, and Commentary. Kluwer Law International, 2005, p. 106.
