US Model Bilateral Investment Treaty of 2012 - Report Example

What are the new elements in the U.S. Model Bilateral Investment Treaty (BIT) of and how does this model treaty compare with the 2004 U.S. ModelBIT in terms of the minimum standard of protection to foreign investors?’ Introduction Foreign direct investment (FDI) in the contemporary world has been emerged as a major driver for international economic growth. Due to the lack of a central multilateral framework pertaining to investment, bilateral investment treaties have been regarded as the key instruments to stimulate a rules-based system for regulating and monitoring global investment1. Evidently, in the United States of America (US), international investment is identified to play a significant role towards the economic development of the nation. International investment aids the US in accomplishing better economic growth, exporting operations and job opportunities. In this regard, the reforms made in the Bilateral Investment Treaty (BIT) during the year 2012 facilitates the US government in ensuring that the US companies are able to conduct business operations with better foreign market access. Additionally, BIT also assists in developing effective mechanisms based on which economic partners of the country are required to conducts investment operations in accordance with certain obligations. Subsequently, the model also aids the US in retaining effective labor forces along with better protection of environment2. BIT is an agreement formulated by the ‘Office of the United States Trade Representative and U.S. Department of State’ (USTR), which is recognized on an international basis. BIT is based on certain rules along with regulations on the basis of which investors from one country are treated in another country. The model provides different rights to investors which include better market access opportunities, discrimination protection, settlement mechanism in case of treaty’s breaches and safeguard from expropriatory.3 In this regard, the model provides certain benefits that include enhancement of investment climate, better legal enforcement and promotion of economic reforms in relation to market operations. The United States has in place over 40 BITs with nations throughout the globe. Besides, US free trade agreements (FTAs) contain pertinent investment chapters having quite similar protections as well as rules. Subsequently, the Department of State along with USTR co-lead the BIT program in the US. The BIT program plays a crucial role in order to safeguard private investment, endorse US based exports along with developing market-driven policies. Subsequently, the program focuses on developing international law standards in keeping with the set out objectives. Maintenance of an apparent and non-discriminatory ambience for encouraging private investment is the key endeavor of BIT program4. The US government in order to assure that the BIT model works consistently with the public interests and economic growth prospects has made adequate changes in the principles of the BIT model of 2012 over previous model i.e. BIT model of 2004. Correspondingly, reforms in the BIT model 2012 have been made based on the perception of the Congress, business association, non-governmental as well as environmental organizations, companies, academics and labor groups. The implementation and reformation of the BIT model during the period of 2012 ensures that international investors are safeguarded significantly. Moreover, the US government is facilitated with the opportunity of ascertaining that public interest is protected in an effective manner. Additionally, reforms are made in the model with the intention of enhancing transparency along with improved participation of the public5. In this context, the essay intends to discuss about BIT model of 2012 and the new elements that are added in this revised model. Additionally, US Model BIT of 2012 and 2004 are compared in terms of the minimum standard of protection to foreign investors. The New Elements in the US Model BIT of 2012 The BITs and the policies of Foreign Trade Agreements (FTAs) are recognized as ‘international investment agreements’ are used rules-based system for regulating international investment. The investment agreements are seemed to have certain provisions based on which host country’s investments are required to be treated against discrimination.6 Moreover, limits are made in investments’ expropriation and in forming impartial binding in order to mitigate investment disputes. Presently, the flows of FDI have increased in an augmented manner and in this regard, the number of investment agreements entered into by and between both developing and developed nations. It has been identified that there are around 3,000 BITs on a global context and the US possess around 47 BITs out of which 41 BITs are enforced7. In the US, 14 FTAs are enforced and out of which 12 FTAs contain policies in relation to investment provision8. Investment disputes have risen due to investment dynamics. In this regard, it has been recognized that around 47 dispute cases have been lodged in international arbitration during the period of 20119. In this respect, the US Congress has formulated effective investment policies with due ratification approved by both the House of Representatives and the Senate10. Contextually, the US government has developed international investment policies with the aim of minimizing restrictions in relation to foreign investments. Additionally, the formulated policies will aid in treating foreign investment non-discriminately and reduce unfair means of maximization investment benefits. Subsequently, the Obama Administration during the year 2012 has reviewed the US Model BIT. The 2012 US Model BIT contains similar provision of investor protection as identified in BIT model of 2004. Additionally, certain changes are recognized in BIT obligations which include improved provisions of environmental as well as labor standards, obligations will be applicable for state-owned enterprises (SOEs), provisions are to be made with better transparency and restricts are made in the area of performance requirements. Respectively, the reviewed BIT Model of 2012 aids the US in conducting investment operations with developing countries that include India, China and among other trading partners of the US. Consequently, the provisions made in the BIT model of 2012 will assist in safeguarding as well as promoting investment11. The US administrative body i.e. the ‘Office of the United States Trade Representative’ and ‘U.S. Department of State’ are jointly responsible for administrating the US Model BIT. The model is implemented with the aim of developing a better negotiation between BITs and policies relating to FTAs. The US Model BIT of 2012 is implemented with the aim of ascertaining that the investors are offered with better safeguarding initiatives for better flow of international investments12. BIT ensures that foreign investors are protected of their investment rights in countries possessing no adequate protection rights in relation to different agreements that include FTAs and modern treaties of friendship among others. Additionally, the implementation of BIT policies have assisted in building better market-oriented policies with the assistance of which investments are made in an open, non-discriminatory and transparent manner. BIT model of 2012 also aims at developing a better alignment between BIT objectives and standards of international law13. In the year 2012, the US Model BIT is revised from the practices that are implemented during the period 2004. The changes in the policies are administered with the aim of ascertaining that investment activities are conducted systematically, transparently along with the public benefits. In this regard, reforms are based on the opinions of companies, Congress, labor groups, non-governmental organizations, academics and business associations.14 The reforms in order to be implemented effectively require two-third consent of the Senate15. The changes and new elements implemented under the US Model of 2012 are discussed hereunder. a) Transparency and Public Participation The revised BIT model of 2012 ensures to safeguard the interest of stakeholders grounded on basis of provisions which seek that the investments are made with better transparency. Additionally, BIT model of 2012 ensures that the public are offered with enhanced opportunities of participating in investment decisions for better public interest16. The changes in relation to transparency and public participation are described below. 1) Transparency Consultations The parties associated with investments are required to consult in a periodical manner with the intention of enhancing transparency practices in relation to formulating as well as implementing laws, measures as well as regulations, which might affect investments. In this context, transparency of the policies in the model intends fair settlement of disputes arising amid investors and State17. 2) Notice and Comment Procedures The model BIT of 2012 provides different obligations of parties with respect to issue anticipated regulations. The regulations proposed are required to be explained with respect to rationales as well as purposes. Additionally, comments of stakeholders are required to be addressed in relation to financial services. In this respect, the US government is required to adopt effective investment policies with the intention of performing operations transparently18. 3) Multilateral Appellate Procedures The Obama Administration ensured that the US Model BIT of 2012 is based on enhanced language in relation to multilateral appellate mechanism in accordance with which investment parties are required to ascertain provisions in relation to public participation as well as transparency. In this regard, the revise model aids in settling disputes between State and investors19. b) Labor and Environment The US Model of 2012 has additional obligations in relation to environment and labor standards. The additional obligations are detailed hereunder. 1) New Obligation not to “Waive of Derogate” from Domestic Laws BIT model of 2012 provides an obligation on investment parties that they should not derogate or waive their responsibilities in relation to labor along with environment laws for better investment perspectives20. 2) New Obligations to “Effectively Enforce” Domestic Laws BIT model of 2012 also state an obligation to the parties that domestic labor laws as well as environmental laws are required to be effectively enforced with the aim of augmenting investment opportunities21. 3) New Provision whereby Parties Reaffirm and Recognize International Commitments The US Model BIT of 2012 implied that parties engaged with investment operations are required to reaffirm commitments about the ‘International Labor Organization’ (ILO) Declaration. Moreover, the parties are also needed to possess comprehensive knowledge about ‘multilateral environmental agreements’ and their importance22. 4) Strengthening Consultations Procedure The revised US Model of 2012 as compared to the 2004 model BIT provided ample facts as well as procedures about laws relating to environment along with labor. c) State-Led Economies The Obama Administration confirmed that during the reviewing process of the 2004 BIT model issues were raised relating to ‘state-led economies’23. State-led economies signified economic activity of countries are required to be organized in accordance with ‘state-owned enterprises’ (SOEs) and other mechanisms based on which State execute control24. In the US Model BIT of 2012 certain additional provision are formulated, which are described hereunder. 1) Domestic Technology Requirements The Obama Administration has formulate a new principle based on which parties are required to be prevented from using domestic technology with the intention of providing better benefits to investors of respective parties in comparison to foreign investors25. 2) Participation in Standard-Setting It has been identified that US investors in foreign nation markets are under competitive disadvantage in relation to product standards owing to facts that products are developed in an opaque, discriminatory and unpredictable fashion. In this regard, the US Model BIT of 2012 formulated an additional provision that investors of other countries will be facilitated with the opportunity of participating towards technical regulations as well as standards development in a non-discriminatory manner. Additionally, the provision also signified that non-governmental bodies should adhere with the stipulated requirements in relation to the usage of domestic technology26. 3) Delegated Government Authority The Obama administration imposed a new provision according to which the BIT is entrusted with full authority to ascertain that government authority is delegated to a party. Accordingly, a party possessing government authority is required to ensure that SOE’s along with other entities actions are undertaken in accordance with the obligations of BIT27. Respectively, it can be identified that there are certain changes made in the revised US Model BIT of 2012. The revised model comprises different additional provisions in the field of transparency as well as public participation, labor along with environment and State-led economies. The new elements are included in the US Model BIT of 2012 with the aim of weighing the importance between protection of investors and regulation of public interest. In this respect, the Obama Administration has made certain changes in relation to previous model with the intention of safeguarding the US firms and enhancing transparency. Additionally, the changes are administered in order to environment standards as well as labor rights28. The model comprises certain advantages, which are also recognized as BIT principles. The principles are discussed elaborately hereunder. BITs protect the investments of international investors, as the investments made are to be treated favorably and identically as investment of host country investors are treated. The BIT ensures that the life cycle of investments are accomplished on the basis of national treatment (NT) or in accordance with ‘most favored nation’ (MFN) treatment. 29 BITs protect foreign investors and their investments from expropriation. In this regard, in case of expropriation, the investors are entitled to be offered with adequate as well as prompt compensation.30 BITs provided investors with the opportunity of funds’ transferability inside as well as outside the host country in an appropriate manner based on market exchange rate. The transferability option assists in transferring funds in relation to covered investments. Subsequently, BITs aid in developing a better predictable market environment based on market forces.31 BITs impose a restriction on the performance requirement principles, which implies to distorted practices adopted by investors with the aim of obtaining export quotas among others. In this regard, malpractices in the investments operations are mitigated successfully.32 BITs also provide investors with the right of submitting investment dispute report to the government of treaty partner for better international arbitration. 33 BITs offer the investors of covered investments with the right of appointing managerial personnel of top positions irrespective of nationality.34 In this regard, the BIT Model 2012 is expected to aid in protecting the international investors from different disputes. Additionally, the investors are offered with different rights on the basis of which they are able to obtain compensations and others benefits effectively. Compare the 2004 Model BIT and the US Model BIT of 2012 The BIT model of the US comprises different elements in relation to most favored nation (MFN) status, national treatment, imposing restrictions in relation to performance requirements, equitable as well as fair treatment and dispute arbitration with better international integration. In this respect, the 2004 Model BIT imposed certain changes from the previous BIT of 199435. The changes adopted in the BIT model 2004 with the intention of ensuring that the investors are offered with better protection in comparison to the protection granted under the ‘North American Free Trade Agreement’ (NAFTA) in the BIT of 1994. The provisions of NAFTA were formulated in a broad manner with was identified to act as limitation in protecting the investors in a fair as well as equitable way36. Additionally, interest of investors protected under NAFTA is identified to be made discriminatorily, as the foreign investors are offered with better protection rights in relation to dispute settlement between State and investor. The improved protection of foreign investors is based on the policy of minimizing barriers in relation to foreign investment37. In this regard, BIT Model of 2004 made a change in ensuring that foreign investors are not offered with additional substantive right as compared to the US investors38. Moreover, the changed provision also stated that investors are to be protected in accordance with the legal principles as well as practices that are implemented in the US39. The 2004 Model BIT also adopted certain changes based on congressional objectives which include narrowing down the definition relating to the agreement of investment covered40. The model also provides a minimum standard based on which investment and investors are to be treated. Additionally, detailed provisions are formulated in accordance with which dispute between investor and State will be settled. Provisions are also adopted with the aim of improving transparency in relation to national laws as well as proceedings41. The model also consists of a specific preambular language with the assistance of which labor and environmental standards are required to be addressed42. The changes that were implemented in the BIT model of 2004 with the aim of protecting the interest of shareholders appropriately and equitably. However, the changes made were not significant in ensuring that shareholders are offered with effective protection43. Subsequently, it can be identified that BIT Model of 2004 has been implemented with the aim of authorizing investors with the rights of making claims for breach through treaty arbitration contracts as embedded in investment agreements44. Moreover, the changes in the model have also aided in settling disputes that arises between investors and States45. The model is also identified to ensure that the interests of the investors are safeguarded without discrimination46. Contextually, the government of the host country is required to ascertain that the foreign as well as domestic investors are treated in a non-discriminate manner. In this respect, the investors in case of breach are offered with the opportunity of having compensation for misconduct experienced by them47. Contextually, the BIT model of 2004 possessed certain limitation, which raised concerns amid business community of the US. The business community opposed that the changes made in the model might adversely affect the protection status of investors48. Additionally, labor groups as well as non-governmental organizations raised issues that the changes are seemed to be ineffective in safeguarding the regulatory authority of the host government49. Presently, the rising number of investment disputes is the major concerns for the US to retain and protect foreign investors successfully. In this respect, the Obama Administration has reviewed the BIT Model of 2004 with the aim of ensuring that investment operations are conducted in an efficient and appropriate manner. The Obama Administration reviewed the BIT Model of 2012 with the aim of ascertaining the scale along with the scope of the model in relation to the provisions of protecting investors from the US nationals and others foreign countries50. The Administration reviewed the BIT Model of 2004 in order to ensure that the BIT policies are in alignment with the economic agenda of the US government and public interest. The revised obligation of the Model during the year 2012 is expected to protect investors from global financial crisis. Additionally, the US Model BIT of 2012 also is also aims at assisting development of the SOEs in an effective manner51. The investment agreements can be recognized to be acquired adequate importance in the present scenario owning to different implications of domestic along with foreign policy. In this regard, the revised policies of the US BIT Model of 2012 have been incorporated with various regulations that include public notice as well as comment, inter-agency review and issues are to be recognized with the assistance of expert consultation processes. Correspondingly, based on clarifications as well as changes the investment agreements were refined52. During the review of the BIT model of 2004 in accordance with the consultation process offered different opinions in relation to changes that are required to be adopted with the intention of ensuring better safeguarding of investors and public interest53. Respectively, the Administration identified that changes in the BIT provisions should be made in the areas of investor protection, environment protection and promoting labor rights. The regulations adopted in the US Model BIT of 2012 can be ascertained to be intact with the provisions that are implemented in the BIT Model of 200454. The changes that are implemented by the Obama Administration on the basis of input acquired from different segments that US stakeholders, companies, labor and industry associations among others with the intention on ensuring that investors are offered with better protections and rights55. In this regard, it has been ascertained that domestic as well as foreign investors are offered with better investments protection facilities. Subsequently, the US Model BIT of 2012 encompasses additional effective provisions under the regulation of the Obama Administration56. Respectively, the US Model BIT of 2012 was formulated in a balanced manner providing better protection services to investors. Additionally, officials of the US government are offered with adequate authority of formulating as well as implementing public policies with the aim of accomplishing public interest significantly. The revised BIT model is also identified to address environmental along with labor standards effectively. In this respect, it can be comprehended that the revised BIT Model of 2012 provides better protection to investors as well as entails different other factors including environment and labor protection in an effective manner57. Critical Analysis of US Model BIT of 2004 and the US Model BIT of 2012 in relation to Minimum Standard of Protection to Foreign Investors It can be comprehended from the discussion in the above section that the US Model BIT of 2004 has adopted different measures of ensuring that the investors are offered with better protection facilities. Additionally, the provisions that are implemented through the model emphasizes that foreign investors are offered with adequate rights as well as benefits with respect to the interest and protection of investment. In this respect, the model assisted in limiting barriers of foreign investments. Moreover, the model has also aided in retaining foreign investors effectively owing to the fact that foreign investments play significant role towards the development of the US economy. In this respect, the US investors were seemed to have suffered discrimination. In this respect, the model is identified to adversely affect the fair standard of treatments to be offered to investors58. It has been ascertained that foreign investors were provided with better investment protection rights as well as standards as compared to the US investors59. The US investors conducting investment operations aboard were not offered with effective protection and compensation services in developing countries due to weaker arbitral panels for ineffective legal as well as judicial systems. In this regard, foreign investors lodging complaints with the US federal courts were offered with effective protection in relation to their interest and investments60. The policies adopted in the review process can be considered as an expansion of the 2004 Model. In this regard, the Administration has implemented additional policies which include “MFN status, full protection and security, national treatment, protection from expropriation without compensation and fair and equitable treatment”61. The aforementioned polices are adopted as well as implemented in the US Model BIT 2012 with the aim of ensuring that foreign investors are provided with equitable investment benefits, protections and management as offered to domestic investors and their investments62. The US Model BIT of 2012 is based on the concept of non-discrimination, which implied that both domestic as well as foreign investors are provided with national treatment. In this context, the foreign investors and their investments are provided with similar favorable treatment as offered to domestic investors in relation to investment operations, investment management and investment disposition63. The Administration also included the provision of fair as well as equitable treatment. The provision implied that the investors are to be offered with ‘minimum standard of treatment’ with the aim of better investments and investors protection. Fair as well as equitable treatment ensures that the investors are offered with civil, criminal and administrative justice in both domestic and foreign nations. Subsequently, domestic and foreign investors are provided with fair investment opportunities and protection. The investors are also protected from expropriation. In addition, the party involved in the investment operations will not be able to expropriate investments in case investments are nationalized for public interest and on the basis of legal procedures64.The investors are safeguarded from expropriation through suitable compensation with a specified time period. Moreover, foreign investors are safeguarded with better protection as well as security in an identical manner, as offered to US investors. In case investors suffering losses due to several factors that include war, revolt and riot among others will be provided with compensation or indemnification by the Host State65. Correspondingly, it can be comprehended that the policies of the US Model BIT of 2012 is an expansion of the BIT Model of 2004. The US Model BIT 2012 provided additional provisions of better protection to investors and to their investments in a non-discriminate as well as fair manner. The foreign investors are also offered with effective protection and security in order to safeguard their investments from expropriation. The investors are also protected from incurring losses in different situation that include armed conflicts and riots among others by providing compensation along with other benefits66. The added provisions ensure that the investors and their investments are treated in an equitable manner, similar to US investors and their investments. Thus, the revised model is identified to include certain changes in relation to benefits along with rights as offered by the previous BIT Model of 200467. Conclusion It can be comprehended from the foregoing discussion that in the present scenario FDI plays an effective role towards the development of the global economy. In the US, FDI is identified to provide significant benefits towards the development of the economy. In this regard, the government of the US has adopted different investments polices that include NAFTA, FTAs and BITs with the intention of ensuring that foreign investments are acquired by effective reduction of barriers. The policies that were adopted by the investors were criticized on various grounds that include discrimination, expropriation and improper protection. In this context, the government of the US has adopted certain polices based on which the domestic and foreign investors are managed in fair and transparent manner. The government of the US has developed BITs with the intention of ascertaining that investors are provided with better investment opportunities as well as benefits in order to attract and retain FDIs. In this regard, the US Model BIT of 2004 is identified to possess provision defining the minimum standards based on which the investors are required to be treated. Correspondingly, the model ensured that foreign investments are protected from expropriation. Additionally, the BIT Model of 2004 provided adequate protection to investors with compensation services. The provisions of the model also ascertain that the investors are offered with effective dispute resolution rights in order to safeguard their investments and rights. Subsequently, the investors are offered with adequate investment benefits and investment management services in a non-discriminated manner. However, the provisions of the US BIT Model of 2004 were criticized on the ground of discrimination. The domestic investors implied that the provisions made were largely in favor foreign investors in terms of investment benefits, management and protection. In this regard, the Obama Administration has revised the BIT Model of 2004 by making certain changes and adding different provisions on the basis of which both the domestic investors and foreign investors are provided with better investment protection functions. The revised model is recognized to be an expansion of the previous model i.e. BIT Model of 2004. The new elements in the US Model BIT of 2012 include ‘transparency and public participation’, ‘labor and environment’ and ‘state-led economies’. The provisions are expected to safeguard the interest of investors in performing investment operations without discrimination. Additionally, the investments are also expected to be treated in a fair and transparent manner with increased protection as well as security. Bibliography Books Bjorklund A.K., Laird I.A. and Ripinsky S., Investment Treaty Law: Current Issues. Remedies in International Investment Law Emerging Jurisprudence of International Investment Law. 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