Despite this potential to generate development benefits, the evolving complexity of the IIA system can also lead to challenges. Among other things, the complexity of the current IIA network makes it difficult for countries to maintain policy coherence. Provisions agreed in one IIA may be inconsistent with the provisions of another IIA. For developing countries with less capacity to participate in the global IIA system, this complexity of the IIA framework is particularly difficult to manage. Other challenges arise from the need to ensure coherence between a country`s national and international investment laws and the objective of designing an investment policy that best supports a country`s specific development objectives. The main purpose of international tax treaties is to regulate the distribution among countries of taxes levied on the global income of multinational corporations. In most cases, this is done by eliminating double taxation. The crux of the matter lies in disagreements between countries over who is responsible for the taxable income of multinational enterprises. Most often, these conflicts are dealt with by bilateral agreements that deal exclusively with the taxation of income and sometimes capital. Nevertheless, some multilateral tax agreements have also been concluded in the past, as well as bilateral agreements dealing with taxation and other issues. The C-252 judgment of the Colombian Constitutional Court[1] on the constitutionality of the Colombian-French BIT[2] has aroused interest[3] because it is the constitutional judge`s response to the way in which safeguard clauses for foreign investments are transposed into national law. Many cited the WTO Appellate Body as an example of how diversity requirements – particularly development diversity – can be integrated into the appointment of judges in the context of ISDS. However, these diversity requirements have highlighted various gaps in practice, with the more recent composition of the Appellate Body and the First Instance Dispute Settlement Bodies showing low representation of the many WTO members.

In this ITN Insight, Jane Kelsey highlights some of the shortcomings of the current WTO dispute settlement mechanism with respect to diversity issues. It is based on stalled efforts to reform the Organization`s Dispute Settlement Understanding (DSU) — the legal text that sets out the rules for dealing with disputes — and the role of the WTO Secretariat in dispute settlement. Kelsey describes the lessons that can be drawn from this story, especially as the UNCITRAL Working Group III process contemplates possible ISDS reforms that involve jury appointment and selection. International tax treaties focus on the elimination of double taxation, but may at the same time address related issues such as the prevention of tax evasion. Even when governments enter into IIAs with general development objectives, these agreements themselves generally do not directly address economic development issues. Although the IIA rarely contains specific commitments to investment promotion, some contain provisions that advocate the exchange of information on investment opportunities, encourage the use of investment incentives or propose the establishment of investment promotion agencies (IPAs). Some also contain provisions dealing with development-related public policy concerns, such as.B. exceptions related to health or environmental issues or exceptions related to essential security. Some IIAs also provide countries with specific regulatory flexibility, including when it comes to making investment liberalization commitments. In July 2018, the Ecuadorian ambassador published the null draft of one of the most important international human rights treaties in recent years. How does this project respond to the high expectations and needs of the international community, and in particular of those in need of justice and reparations? One of the most important organizations dealing with the development dimension of IIAs is the United Nations Conference on Trade and Development (UNCTAD), which is the single point of contact for the United Nations (UN) to address issues related to IIAs and their development dimension.

The organization`s IIA program supports developing countries in their efforts to participate effectively in the complex system of investment rules. UNCTAD provides capacity-building services, is widely recognized for its research and policy analysis on IIAs, and provides an important forum for intergovernmental discussions and consensus-building on issues of international investment and development law. The right to regulation can be defined as the sovereign right of states to regulate in the public interest – their political leeway. As international investment treaties (IIAs) were created to restrict certain aspects of countries` regulatory rights, the first wave of IIAs hampered host countries` regulatory experiments that could harm the rights of foreign investors. Current and future investment agreements and chapters in which EU Member States or the Union itself are involved can be profoundly influenced by a landmark ruling by the Court of Justice of the European Union (CJEU). In this article, the author examines the judgment from the perspective of the EU Constitution and analyses the possible consequences. Did the Achmea judgment come as a surprise to EU legal insiders? Third-party litigation financing (TPF) is a rapidly growing industry made up of speculative investors who invest in a legal claim to control the case and a contingency in recovery. Following the global financial crisis and the demand for speculative financing for new investment instruments, TPF discovered the bilateral investment treaty (BIT) regime with investor-state dispute settlement (ISDS) mechanisms. Historically, the emergence of the international investment framework can be divided into two distinct eras. The first era – from 1945 to 1989 – was marked by disagreements between countries over the degree of protection that international law should offer to foreign investors. While most developed countries argued that foreign investors should be entitled to a minimum standard of treatment in any hotel industry, developing and socialist countries tended to claim that foreign investors did not need to be treated differently from domestic companies.

The first BITs were completed in 1959, and over the next decade much of the content that forms the basis of the majority of BITs currently in force was developed and refined. In 1965, the Convention on the Settlement of Investment Disputes between States and Nationals of Other States was opened for signature by the Länder. The rationale was to establish ICSID as an institution that facilitates the settlement of investor-state disputes. In summary, recent developments have made the system increasingly complex and diverse. Moreover, even to the extent that the main components of the IIA are similar in most agreements, there are significant differences in the details of these provisions. All this makes managing the interaction between IIAs increasingly difficult for countries, especially in developing countries, and also makes it more difficult to negotiate new agreements. The recent conclusion of the Investment Cooperation and Facilitation Agreement (ICFT) between Brazil and India is an important moment in the drafting of investment agreements, the new agreement combining aspects of the Brazilian Investment Cooperation and Facilitation Agreements (CFIA) and the 2015 Indian bit model. This ITN Insight breaks down the different elements of icFT and explores its approach, design and content in relation to the Brazilian and Indian models. The author, Martin Dietrich Brauch, does so by conducting a detailed analysis of the wording of the preamble, scope, definitions, investment protection and dispute settlement provisions, institutional governance provisions and exceptions to the agreement. It also summarises the main innovations of the new treaty that could help support future negotiating efforts. The international legal aspects of relations between countries and foreign investors are largely dealt with bilaterally between two countries. The conclusion of BITs has evolved since the second half of the 20th century, and today these agreements are a key element of contemporary international foreign investment law.

The United Nations Conference on Trade and Development (UNCTAD) defines BITs as “agreements between two countries for the mutual encouragement, promotion and protection of investments in their respective territories by companies based in one of the two countries”. [3] Although the basic content of BITs has remained largely the same over the years, emphasizing investment protection as a central issue, issues that reflect public policy concerns (e.g. B, health, safety, essential safety or environmental protection) have been included more frequently in BITs in recent years. [4] Unlike investment protection, investment promotion provisions are rarely formally incorporated into the IIA and, in this case, these provisions generally do not remain binding. Nevertheless, improving the protection formally afforded to foreign investors by an IIA should encourage and encourage cross-border investment. The benefits that increased foreign investment can bring are important for developing countries that wish to use foreign investment and IIAs as tools to improve their economic development. Morocco recently reviewed its contract programme and set up a working group in 2015 with a mandate to develop a new model BIT including a consultation process involving various stakeholders. The ILO model was launched by Morocco in December 2019. The authors of this article, Hamed El-Kady and Yvan Rwananga, review some of the basic provisions of this new model BIT that will likely serve Morocco as a basis for (re)negotiating BITs and other regional investment agreements. .