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Investment Treaties Explained: Promoting Globalization and Protecting Investments

Investment Treaties are bilateral or multilateral agreements between parties (individuals, corporations or sovereign nations) to make investments among themselves. When this investment treaty is drafted internationally, it becomes a cross-border investment that promotes foreign investment leading to globalisation, liberalisation and strengthening the global markets. To execute an investment treaty there are certain obligations that are necessary, explained below:
  1. Treaty Title and Statement of Purpose: The first and foremost thing with a treaty starts is its title which depicts whether it is a bilateral or multilateral treaty and which countries are involved. The state of purpose sets out the goals of the treaty that why this treaty is drafted and what it aims to attain.
     
  2. Definitions and Scope of Application: This section of the treaty lays down the definition of the terms used in the treaty. It sets out the scope of the application of the treaty in the sense of which nation, investor, or asset is involved in the treaty. All the subjects that come under the definition clauses become bound by the treaty. A definition provided should be crisp and not have loose ends as it can attract different interpretations that can defeat the purpose of the treaty itself. For example, in the case of Salini Construtorri SpA and Italistrade SpA Vs. Morocco, the subject issue was the definition of 'investment' in the treaty of Italy-Morocco Bilateral Investment Treaty (BIT). It was unclear whether the treaty is governed by Moroccan law or the BIT. The Tribunal held the contract was legally valid in Morocco and that it constituted an investment under Italy-Morocco BIT.
     
  3. Investment Promotion, Admission and Establishment: The investment Promotion clause in a treaty provides for the promotion of the particular treaty in the countries to remove restrictions on investments. The treaty lays down certain conditions that are to be adhered to either 'pre-entry' or 'post-entry'. It is called an 'Admission Clause' where the foreign parties are admitted only if they comply with the host country's domestic legislation and favourable conditions are made for the investments. In the case of Agua Del Tunari SA Vs. The Republic of Bolivia, the tribunal interpreted the Bolivia-Netherlands BIT that the obligation to admit investments was subject to the decision of Bolivia to exercise powers conferred by its laws or regulations. And under the establishment clause, a right is created regarding the treatment of the investors ie "treatment no less favourable than that given to investments made by nationals of the host country, nationals of a third country, or both, whichever is more favourable."
     
  4. General Standards of Treatment of Foreign Investments: These standards impose certain obligations on the host countries regarding the treatment and protection of foreign investors. If they fail to do so that they become liable to pay compensation. There are six general standards ie Fair and Equitable Treatment, Full Protection and Security, Protection from unreasonable or discriminatory measures, Treatment no less than that accorded by international law, etc. In the case of Genin Vs. Estonia, the Tribunal considered whether certain actions by Estonia amounted to a violation of its obligation to accord FET under the 1994 US-Estonia BIT. But the claim was dismissed as it complied with international law standards. In another case of Occidental Vs. Ecuador, the subject issue was whether Fair and Equitable Treatment mandated by the treaty is a more demanding standard than that prescribed by customary international law. It was held that it was not such a case.
     
  5. Monetary Transfers: This section of the treaty covers the monetary transfers between the parties ie the general nation of the investor's rights to make monetary transfers, types of payments, the type of currency, and the span of time to conclude a transfer.
     
  6. Expropriation and Dispossession: This protects the foreign investor's property. In the Chorzow Factory case, the Permanent Court of International Justice held that both the factory owner and the company holding contractual rights to the factory were expropriated by the Polish measures. In another case of Asian Agricultural Products Ltd. Vs. Sri Lanka, the Tribunal concluded that in addition to any specific compensatory actions taken for the benefit of other investors, the provision in benefit of their investors, the provision in question would make any promised higher standard available to an injured investor.
     
  7. Dispute Settlement: For settling a dispute a separate international arbitration procedure, the International Centre for Settlement of Investment Disputes (ICSID) has been established. It provides how disputes can be settled, awards and seats of the court. In the case of Jan de Nul N.V. and Dredging International N.V. v. Egypt (2006) (ICSID Case No. ARB/04/13), the government of Egypt objected to the jurisdiction of the arbitral tribunal on the grounds that the relevant BIT, which came into effect in 2002, provided in Article 12 that "the BIT shall not apply to any disputes that arise before the BIT comes into effect," while covering investments made prior to the effectuation as those to be protected. But the Tribunal affirmed its jurisdiction. Sometimes the Tribunal does not take the case because it does not have jurisdiction like, in the case of Fraport AG Frankfurt Airport Services Worldwide v. The Republic of the Philippines (2007), ICSID Case No. ARB/03/25, the issue was the Germany-Philippines BIT clearly limited the protection to the investment that is legal under Philippine law. However, the Tribunal held that it did not have jurisdiction over the case. In its determination, the arbitral tribunal referred to three Articles in the BIT, including the definition of invested assets and the instrument of ratification.
     
  8. Treaty Exceptions, Modifications, and Terminations: Treaty exception carves out the exceptions to the General Standards of Treatment when the national interest is at stake. Many treaties also include a provision for modifying the treaty if necessary. The treaty also includes a termination clause providing how and when a treaty can be terminated. In Saudi Arabia v Arabian American Oil Company (Aramco) (1958)27 ILR 117, the Tribunal held that Aramco's rights as concession holder 'have the character of acquired or "vested" rights which cannot be taken away by the Government by means of a contract concluded with a second concessionaire'.
Therefore, certain features of the Investment Treaty become essential to be incorporated to safeguard the host country, foreign investors as well the investment.

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